Is Illegally Obtained Evidence Admissible in a Civil Case?

If police improperly obtain evidence in a criminal matter, it may be subject to exclusion from trial.  But is there an equivalent in civil matters?  Light a fire and slip some brandy in your eggnog, because nothing says the holidays like an ugly custody battle!

Earlier this month, the Supreme Court of Nevada published Abid v. Abid,^[1] concerning custody of a minor child.  Mom and Dad divorced and were awarded joint legal and physical custody of Child.  Dad at least twice “placed a recording device in the child’s backpack as the child traveled to [Mom]’s home. The child and [Mom] were unaware of the device, and neither consented to [Dad] recording their conversations.  [Dad] then edited the recordings, removed what he claims to be irrelevant material, and destroyed the originals.”

The district court refused to admit the recordings themselves into evidence. “Nonetheless, the court provided the recordings to a psychologist, Dr. Holland, whom the court had appointed to interview and evaluate the child. The court permitted Dr. Holland to consider the recordings as she formulated her opinions.”  The court then relied upon that opinion, which relied in part upon the recordings, to award primary custody to Dad.

On appeal, Mom argued it was error to allow the expert to consider the recordings, even if the recordings themselves were not admitted into evidence.  Mom first argued “NRS 50.285(2) allows experts to consider inadmissible evidence [but] only if the evidence is ‘of a type reasonably relied upon by experts,’ and psychologists do not normally rely upon recordings that are produced illegally.”  That argument failed

because it shifts NRS 50.285(2)’s focus on the “type” of evidence at issue to the manner in which the evidence was procured. There is no doubt that Sean’s evidence—a contemporaneous recording of a parent’s unfiltered interactions with a child—is the type of evidence a psychologist would consider in forming an opinion as to the child’s welfare.

Nor did the Court find another reason to exclude it.  Although suppression exists in a criminal context, “we find no analogous provision in the civil context.”  The text of NRS 200.650 did not address the question.  The Court refused to “read a broad suppression rule into NRS 200.650, especially when our Legislature has proven in the criminal context that it knows how to write one. Prohibiting Dr. Holland from considering this evidence would be conflating criminality with inadmissibility, which is left to the sound discretion of the court.”

Abid then explained how this ruling was consistent with Lane v. Allstate Insurance Co., where the plaintiff “Lane illegally recorded phone conversations in violation of NRS 200.620 to obtain evidence to support tort and contract claims against his former employer.”^[2]  There the remedy had been to bar the plaintiff “from using the information contained within the recordings ‘in any fashion.’”^[3]  However, Abid clarified that this ruling had not created “a bright line rule that illegally obtained evidence cannot be used in civil proceedings; rather, we held that suppressing Lane’s evidence was an appropriate sanction in that particular case.”^[4]

My take away from Abid is that 1) don’t illegally obtain evidence; but 2) if you do, it might still be useful in the litigation.  It is notable that Dad appeared to conduct this activity without any input from his counsel.  Had counsel been involved in any way with obtaining those recordings, I suspect the ruling would have been the same, but counsel would have faced discipline against his license.

[1] 133 Nev. Adv. Op. 94 (Dec. 7, 2017).
[2] 114 Nev. 1176, 1177, 969 P.2d 938, 939 (1998).
[3] Id. at 1181 n.4, 969 P.2d at 941 n.4.
[4] Id. at 1181, 969 P.2d at 941.