133 Nev., Advance Opinion 64
IN THE SUPREME COURT OF THE STATE OF NEVADA
DITECH FINANCIAL LLC, F/K/A No. 70475
GREEN TREE SERVICING, LLC,
Appellant,
vs.
FILED
SANFORD BUCKLES, ON BEHALF OF SEP 1 4 2017
HIMSELF AND OTHERS SIMILARLY
SITUATED,
Respondent.
Certified question pursuant to NRAP 5 concerning the
application of NRS 200.620. United States District Court for the District
of Nevada; Gloria M. Navarro, Chief Judge.
Question answered.
Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg and Joel D.
Henriod, Las Vegas; Brooks Hubley LLP and Michael R. Brooks and Gregg
A. Hubley, Las Vegas; Bradley Arant Boult Cummings, LLP, and
Elizabeth A. Hamrick, Michael R. Pennington, and Scott Burnett Smith,
Huntsville, Alabama,
for Appellant.
Haines & Krieger, LLC, and David H. Krieger, Las Vegas; Kazerouni Law
Group, APC, and Abbas Kazerounian and Michael Kind, Las Vegas,
for Respondent.
Peterson Baker, PLLC, and Tamara Beatty Peterson, Las Vegas,
for Amicus Curiae.
BEFORE THE COURT EN BANC.
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OPINION
By the Court, GIBBONS, J.:
NRS 200.620 prohibits a person from recording a telephone
call unless both parties participating in the call consent to the recording.
In response to a certified question submitted by the United States District
Court for the District of Nevada, we consider whether NRS 200.620
applies to telephone recordings made by a party outside Nevada who uses
equipment outside Nevada to record telephone conversations with a
person in Nevada without that person's consent. We answer the certified
question in the negative, thereby holding that NRS 200.620 does not apply
to the recording of interstate calls when the act of recording takes place
outside Nevada.
FACTS AND PROCEDURAL HISTORY
This original proceeding arises out of a class action suit
brought by respondent Sanford Buckles against appellant Ditech
Financial LLC in the United States District Court for the District of
Nevada. Ditech, a Delaware limited liability company, is a homemortgage servicer that was headquartered in Minnesota at the time
Buckles initiated the underlying litigation. Although Ditech is now
headquartered in Florida, it has customer call centers equipped to record
telephone calls in Arizona and Minnesota. Buckles is a Nevada resident
whose home mortgage is serviced by Ditech. In his complaint, Buckles
alleges Ditech violated NRS 200.620 by unlawfully recording certain
telephone conversations without Buckles's consent.'
1 NRS 200.690(1)(b) provides a private right of action against "[a]
person who willfully and knowingly violates NRS 200.620."
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Ditech moved to dismiss the complaint, arguing NRS 200.620
does not apply to telephone calls recorded by persons and on equipment
located outside of Nevada, and if NRS 200.620 does apply, the
extraterritorial application of NRS 200.620 would violate the United
States Constitution's Due Process Clause and Dormant Commerce Clause.
The federal court concluded:
If [NRS] 200.620 does not apply to
recordings made outside of Nevada by Ditech,
Ditech's motion to dismiss is due to be granted. If
the statute applies to telephone recordings made
outside of Nevada by Ditech, however, this Court
must decide Ditech's constitutional challenge to
the statute under the Due Process Clause and the
Dormant Commerce Clause of the United States
Constitution. The necessity of reaching these
serious constitutional questions depends upon
resolution of prior, potentially dispositive,
questions of Nevada statutory law.
The federal court therefore decided to certify a question under NRAP 5
concerning the applicability of NRS 200.620. Because the parties
ultimately were unable to agree upon the appropriate language of the
question to be certified, the federal court certified two questions to this
court:
Plaintiffs position: Does [NRSI 200.620
apply to telephone recordings made by a party
outside Nevada, who regularly records telephone
conversations with Nevada residents, of telephone
conversations with a person in Nevada without
that person's consent?
Defendant's position: Does [NRS] 200.620
apply to telephone recordings by a party outside
Nevada who uses equipment outside Nevada to
record telephone conversations with a person in
Nevada without that person's consent? If so, does
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that decision apply retroactively or prospectively
only?
DISCUSSION
The two certified questions ask essentially the same thing:
whether NRS 200.620 applies to recordings of telephone conversations
with a person in Nevada without that person's consent when the
recordings are made by a party who is located and uses recording
equipment outside of Nevada. Based on the following, we answer the
question in the negative and, therefore, we need not address the parties'
arguments concerning retroactivity.
NRS 200.620 does not apply to telephone conversations intercepted out of
state
In relevant part, NRS 200.620(1)(a) provides that "it is
unlawful for any person to intercept or attempt to intercept any wire
communication unless . . Wile interception or attempted interception is
made with the prior consent of one of the parties to the communication."
See also NRS 179.430 (defining "[i]ntercept" as "the aural acquisition of
the contents of any wire, electronic or oral communication through the use
of any electronic, mechanical or other device or of any sending or receiving
equipment"). This court has concluded that "the tape-recording of
telephone conversations constitutes an intercept," and interpreted NRS
200.620 "to prohibit the taping of telephone conversations with the
consent of only one party." Lane v. Allstate Ins. Co., 114 Nev. 1176, 1179,
969 P.2d 938, 940 (1998); see also Ira David, Note, Privacy Concerns
Regarding the Monitoring of Instant Messaging in the Workplace: Is It Big
Brother or Just Business?, 5 Nev. L.J. 319, 330 (2004) (recognizing NRS
200.620 "parallels the Wiretap Act, and is likewise restricted to
interception of actual transmission" (footnote omitted)).
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The crux of Ditech's argument is that NRS 200.620 does not
apply because the allegedly prohibited conduct—i.e., the interception—
took place outside Nevada. Whereas Buckles argues that NRS 200.620
applies because the statute contains no location-based limitations and
Ditech's conduct caused harm in Nevada. We agree with Ditech, and
conclude that Mclellan v. State, 124 Nev. 263,
182 P.3d 106 (2008), is
instructive.
Mclellan did not address whether someone could be found
guilty of violating NRS 200.620 for recording a phone call outside of
Nevada; rather, it addressed whether an out-of-state recording of a
conversation with a person in Nevada made without that person's consent
could be admitted as evidence at their criminal trial. See id. at 267-68,
182 P.3d at 109-10. This court ultimately held "that Nevada law allows
the admission of evidence legally obtained in the jurisdiction seizing the
evidence." Id. at 265,
182 P.3d at 108. To reach that holding, this court
concluded that the interception in Mclellan "was lawful at its inception in
California" because California requires only one party to consent to police
monitoring the communication. Id. at 267 & n.7,
182 P.3d at 109 & n.7.
While the central issue concerned admissibility, this court concluded that
because the recording was permissible in California, it was admissible in a
Nevada criminal trial even though "the manner of interception would
violate Nevada law had the interception taken place in Nevada." Id. at
267,
182 P.3d at 109.
Consistent with our analysis in Mclellan, we hold that NRS
200.620 does not apply when the act of interception takes place outside
Nevada. See id. Instead, "Mnterceptions and recordings occur where
made." Kadoranian v. Bellingham Police Dep't, 829 P.2d 1061, 1065
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(Wash. 1992); see also State v. Fowler, 139 P.3d 342, 347 (Wash. 2006)
("[T]he test for whether a recording of a conversation or communication is
lawful is determined under the laws of the place of the recording.").
Accordingly, whether the interception of telephone conversations with
Buckles and other putative class members was lawful is determined
according to the laws of Arizona and Minnesota, the places where the
conversations were intercepted and recorded, not according to the laws of
Nevada where the calls were received. Therefore, we answer the certified
question in the negative, concluding that NRS 200.620 does not apply to
recordings of telephone conversations with a person in Nevada without
that person's consent when the recordings are made by a party who is
located and uses recording equipment outside of Nevada.
We concur:
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