Facts: Husband admitted to having an affair with Paramour during the marriage. Suspicious of Husband’s activities, Wife bought a hidden “nanny cam” disguised as a phone charger and left it plugged into the kitchen outlet in the marital home while she took their children out of town.

Unknown to Wife, Husband took the device with him to other locations, including his vehicle and Paramour’s home. Wife later found the device in Husband’s truck, retrieved it, and viewed the memory card with her divorce attorney.

The device captured video showing Husband with Paramour in the marital home. It also captured some audio. Wife testified she did not know the device could record sound and that the audio was garbled and unintelligible. The device’s packaging described it as a “camera” and made no mention of audio capability. Wife stated she never disclosed any spoken content from the recordings to anyone.

Husband and Paramour’s Family sued Wife for violating federal and Tennessee wiretapping laws and related claims. Claims for infliction of emotional distress, defamation, invasion of privacy, and use of a tracking device were voluntarily dismissed before trial, leaving only the wiretap claims.

After a two-day jury trial in which Wife and Husband were the only witnesses, the jury unanimously found Wife did not intentionally intercept, use, or disclose any of Plaintiffs’ communications. The trial court entered judgment for Wife.

Husband and Paramour’s Family moved for judgment notwithstanding the verdict or, alternatively, a new trial. They argued the verdict was against the weight of the evidence and the jury instructions were improper. The trial court denied the motion. Husband and Paramour’s Family appealed.

On Appeal: The Court of Appeals affirmed the trial court.

The federal Wiretap Act, 18 U.S.C. § 2511, prohibits any person from intentionally intercepting, disclosing, or using the contents of another person’s wire, oral, or electronic communication. Tennessee’s Wiretap Act, TCA § 39-13-601, contains similar language. Both statutes require intent. Federal courts have held that inadvertent interceptions do not create liability and that passively listening to an intercepted communication does not constitute a prohibited “use.” Tennessee courts likewise require proof that the defendant intended to record another person’s conversation.

The central issue at trial was whether Wife intentionally intercepted oral communications and whether she intentionally used or disclosed their contents.

The Court of Appeals held that material evidence supported the jury’s verdict:

[Wife] repeatedly stated that she was unaware that the recording device would record audio; instead, she believed that it would only record visual images. In addition, she presented the packaging for the device, which described the device as a “camera” and did not mention that it had the ability to capture audio. [Wife] left the device in her home on one occasion while she traveled with the parties’ children, and after she returned and watched the video clips with her attorney and discovered that some audio had been captured, there is no evidence that she used the device further. Accordingly, material evidence supports the jury’s determination that [Wife] did not intentionally intercept Plaintiffs’ oral communications.

The Court also held that no evidence showed Wife used or disclosed the contents of any oral communications:

[Wife] was unable to discern the oral communications spoken in the audio portion of the clips she viewed from the device, and she stated that she never disclosed the contents of the oral communications to anyone. . . . Plaintiffs presented no evidence that [Wife] used or disclosed the substance of any oral communications she may have intercepted. The evidence therefore supports the jury’s determination that [Wife] did not intentionally use or disclose Plaintiffs’ oral communications.

Because material evidence supported the verdict, the Court of Appeals determined that the trial court properly denied Husband’s and Paramour’s Family’s motions for directed verdict and judgment notwithstanding the verdict.

K.O.’s Comment: (1) Family-law clients sometimes think evidence of adultery justifies almost anything. It does not. This case does not approve of secret recordings. It turns on the jury’s finding that Wife did not know the device recorded audio and did not use or disclose anyone’s oral communications. Change those facts, and the result could change quickly.

Video surveillance in one’s own home may create one set of issues. Recording private conversations creates another. Lawyers should warn clients not to record conversations unless they are certain the recording is lawful. A client who intentionally captures private conversations may create a bigger problem than the one they are trying to prove.

(2) One additional note for lawyers: the Court observed in a footnote that TCA § 39-13-603, which provided the private right of action under the Tennessee Wiretap Act, was repealed by the legislature in 2024. Going forward, civil wiretap claims in Tennessee will need to be brought under the federal statute, 18 U.S.C. § 2520.

Source: Owens v. Owens (Tennessee Court of Appeals, Eastern Section, May 8, 2026).

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