Another episode of “Thinking of Eavesdropping? Don’t Do It!”

PIERRE, S.D. (KELO) — The South Dakota Supreme Court says an invasion of privacy claim shouldn’t have been dismissed in favor of the defendants involving recordings that a wife secretly made to use against her husband in a divorce case.

Justice Janine Kern wrote the unanimous decision in Gantvoort v. Ranschau that the state’s high court released Thursday.

Doug Gantvoort sued his former wife, Mary Ranschau, and her attorney, David Strait, after Mary hid a recording device in the office that Gantvoort used at their Clear Lake business and where he sometimes spent nights.

From the court details:

Doug Gantvoort (Doug) sued his former wife, Mary Ranschau (Mary), and her attorney, David Strait (Strait), after Mary placed a hidden recording device in Doug’s office during their tumultuous divorce. Strait accepted fifty-one recordings that Mary made of Doug, saved them onto his computers, and attempted to introduce two of them into evidence during the divorce trial. One of the recordings captured Doug’s comments while viewing pornography. In another, he discussed his net worth and expressed love for his mistress. Doug brought claims against Strait asserting he intentionally invaded Doug’s privacy, aided and abetted Mary in her invasion of his privacy, and, by this conduct, engaged in a civil conspiracy with Mary.

Details of the case (some sordid) all fully described in the case details available online (https://casetext.com/case/gantvoort-v-ranschau).

Reading of the case can give you an idea of the legal mess they found themselves in, going on for over 7 years. Divorce was just one part, discovery of business assets another, and now the attorney has to explain whether he did or did not advise his client that the recordings were illegal.

Mary’s recordings consisted mostly of Doug’s side of telephone conversations occurring late at night… After reviewing the first few recordings, Mary believed Doug’s conversations confirmed her suspicions that Doug was having an affair because he was “setting up trips for weekends” with a woman and spoke about building a house for her. Mary contacted attorney Strait about filing for divorce.

On December 3, 2014, Mary and Strait met for the first time in Strait’s office. Mary retained Strait to file a divorce action against Doug. During this initial consultation, Mary gave Strait her first recording from Doug’s office and explained how she captured the recordings. At the behest of Mary and for preservation purposes, Strait directed his staff to download a copy of the recording to his computer system and then copy the content onto a compact disc for Mary to take with her. This practice continued several times per week over the course of the next two months. Strait’s billing statements itemized the time his staff spent transferring Mary’s recordings.

The parties dispute whether Strait told Mary during the December 3 consultation that she should stop recording Doug. Strait testified in his deposition that he told her not to record Doug for several reasons. He contends he advised Mary that recording another person without being personally present could amount to criminal conduct; that judges do not like secret recordings whether legal or not; that evidence of an affair was not the primary issue in the divorce, and that if she  recorded someone other than Doug, it could lead to problems for her including the inadvertent capturing of privileged conversations between Doug and his attorney.

…In contrast, Mary testified that Strait did not advise her until January 2015 that she should not be recording Doug’s conversations. Mary claims that she did not know it was illegal to record Doug and that Strait did not tell her that it was unlawful. She did acknowledge that Strait told her that any evidence of Doug’s affair would not determine the outcome of the legal issues in the divorce. Strait’s notes from his initial consultation with Mary on December 3 confirm the discussion about the recordings but are silent as to whether he advised Mary to stop recording Doug.

…three years later, on January 18, 2018, Doug brought an action against Mary and Strait alleging: (1) invasion of privacy, (2) aiding and abetting invasion of privacy, and (3) civil conspiracy. Mary and Strait each filed motions for summary judgment. Strait argued that his actions did not invade Doug’s privacy because in rendering professional legal services, he had a duty to preserve the recordings. In addition, he argued that he owed no duty to Doug in this context. Analogizing Doug’s claims to a malpractice lawsuit filed against him, Strait argued that his legal services to Mary were not intentional acts that would result in an invasion of Doug’s privacy. Strait also argued that he did not aid or abet Mary’s  invasion of Doug’s privacy because he did not substantially assist her in the act. As to Doug’s civil conspiracy claim, Strait argued for dismissal because (1) there was no underlying tort on which to base the action, (2) Strait and Mary did not agree to commit a tort, and (3) a lawyer cannot conspire with his client both as a matter of law and under the intra-corporate conspiracy doctrine. Finally, Strait argued that any communications he made during his representation of Mary are absolutely privileged under SDCL 20-11-5(2) (detailing the statutory requirements for a privileged communication), including those made while attempting to introduce the recordings into evidence.

The full text on this case is rather long, but it reveals how once things get to court, many private details will become public.

Details on the case can be read [here].