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12/05/88 Thomas L. Smith, v. Associated Bureaus

December 5, 1988

THOMAS L. SMITH, PLAINTIFF-APPELLANT

v.

ASSOCIATED BUREAUS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

532 N.E.2d 301, 177 Ill. App. 3d 286, 126 Ill. Dec. 616 1988.IL.1749

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, Thomas L. Smith, sued the defendant, Associated Bureaus, Inc., alleging that defendant had committed eavesdropping in violation of the Criminal Code of 1961. (Ill. Rev. Stat. 1985, ch. 38, par. 14-1 et seq.) The trial Judge, in the circuit court of Cook County, granted defendant's motion for summary judgment. Plaintiff now appeals the grant of summary judgment in favor of defendant.

The defendant, Associated Bureaus, Inc., is a collection agency that is incorporated in and operates out of Minnesota. Amoco Oil Company (Amoco) hired defendant to collect its unpaid accounts. Pursuant to the agreement with Amoco, one of defendant's employees contacted Jerry Goudy concerning his outstanding debt to Amoco. Goudy told the employee to contact the plaintiff, Thomas L. Smith, an attorney, because Smith was representing Goudy in his financial matters.

Accordingly, defendant's employee, Evan McCollum, placed two calls to the plaintiff, in Chicago, concerning Goudy's debt. These calls were recorded, in accordance with defendant's routine business procedure, with a taping system that emits an audible beep every 15 seconds to alert the other party that the conversation is being taped.

Plaintiff states that he did not hear the "beep" until the end of the second conversation because of the interference and static on the phone lines. After he discovered his conversation had been recorded without his knowledge, plaintiff filed a three-count complaint against the defendant. Count I alleged an eavesdropping violation and specifically based the action on the Criminal Code's provisions authorizing private civil remedies for any eavesdropping violation. (Ill. Rev. Stat. 1985, ch. 38, par. 14-6.) Count II charged a violation of the Federal Communications Act (47 U.S.C.A. § 605 (1985)), and count III alleged an invasion of privacy. Plaintiff sought an injunction, $250,000 in punitive damages, and actual damages incurred as a result of the loss of clients. The trial court granted defendant's motion to dismiss counts II and III, and plaintiff did not appeal the court's ruling on these counts.

Thereafter, defendant filed a motion for summary judgment on count I. In support of its motion, defendant filed the affidavits of McCollum and of Mark Riley, the collection manager for defendant when the alleged eavesdropping occurred. Riley's affidavit stated that defendant uses a taping system which automatically activates a recorder when a bill collector places a call. This system emits a beep, audible to both parties, every 15 seconds. The recordings are used to facilitate any complaints concerning defendant's collection methods or to resolve any discrepancies concerning what was said in the conversation. After a period of time, the tapes are erased and reused. Riley stated that no supervisors monitored the calls placed to Smith and that the recordings were reviewed only in connection with this lawsuit.

McCollum's affidavit stated that he had two telephone conversations with plaintiff, both of which were recorded. The defendant's taping system, he said, emits a beep throughout any conversation that is being recorded, and he said that this beep was clearly audible to plaintiff.

Plaintiff filed a response to defendant's motion for summary judgment and his own affidavit in support. This affidavit stated that McCollum telephoned him on two occasions to discuss Goudy's debt to Amoco. Plaintiff said he expected the conversations to be private and he was not informed that they were being taped. He stated that he did not hear the beep until the end of the second conversation. Furthermore, he asserted he would never have agreed to have the conversations recorded.

In addition to his affidavit in support of his response, plaintiff filed excerpts from the depositions of Riley and McCollum. In Riley's deposition, Riley stated that defendant's collection managers are able to monitor the collectors' calls in order to evaluate the level of performance of its collection personnel. McCollum, in his deposition, stated that he was currently a collection manager and it was the company's policy to monitor collectors' calls so that he could work with the collectors to improve their collection "style." When he was a collector, McCollum's supervisors would use the tapes of his calls for instructional purposes.

The circuit court granted defendant's motion for summary judgment. The court held that this case was controlled by People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346, where the Illinois Supreme Court held that the Illinois eavesdropping statute did not prohibit the recording of a conversation by a party to that conversation. The circuit court found that the fact that this was a civil action, and Beardsley was a ...


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