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EDD: Calling All Voicemail
'E' by nature, voicemail may become as discoverable as e-mail already is
Steven C. Bennett
e-Discovery Law & Strategy
12-31-2004
The use of voicemail as a business tool has grown dramatically in recent years, and the development of digital recording and storage technology likely will make such records as permanent and accessible as e-mail. So, it's logical to believe that digital voicemail may be the next battlefront in the e-discovery wars.
The Federal Rules of Civil Procedure have long recognized that "data compilations," including data in electronic form, are discoverable. See, Fed R. Civ. P. 34 (defining "documents" subject to discovery); see, Id., Advisory Committee Notes (1970). Since the amendment of the federal rules in 1970, courts have allowed discovery of electronic communications and computer-stored documents. According to that broad definition, voicemail is potentially discoverable.
The question then arises whether voicemail must be preserved. One common approach to preserving e-mail records is to identify likely accounts where relevant e-mail might reside, make copies of those accounts and then review the preserved records for relevance and privilege. Applying such a process to voicemail would be harder in several ways.
First, unlike with e-mail, the principal focus of voicemail records is the recipient of the message. It is typically the recipient's voicemail account that will contain a record of a message. To preserve voicemail records effectively, likely recipients must be identified, but recipients of relevant messages may be a much larger group than the senders of such messages. So, to preserve potentially relevant messages, a business may be required to cast a much wider net.
Second, unlike with e-mail, voicemail doesn't generally have immediately useful search capabilities built in. One cannot simply review the "to" and "from" lines of a voicemail, or the "re" indication, to determine the general nature of the communication; nor, unless voicemails are transcribed or otherwise converted into searchable text, is it currently possible to review them easily for relevance and privilege. Review of voicemail may require weeks of listening to messages to determine what should be done with the messages from a discovery standpoint.
Finally, production of voicemail messages in discovery may be complicated by the fact that the sounds of the messages may be critical to understanding the messages that were being conveyed. A mere transcript of a message cannot capture tone, emphasis and all the other subtle cues that speech provides.
Thus, requesting parties may insist on copies of messages rather than (or perhaps in addition to) transcripts. The added cost and burden could be substantial. Editing oral materials for relevance and privilege, for example, will present unique challenges to most lawyers.
Voicemail can be powerful evidence. Even compared to e-mail, where informal, often ill-considered messages can produce damning admissions, the immediacy of voicemail can make or break a case, which makes it a natural target for discovery, and regulators may not be far behind in demanding such records.
Indeed, in circumstances where discovery obligations are unbalanced, such as the case of a solo plaintiff representative in a class action against a major corporation, the demand for every conceivable form of record is almost inevitable.
In that context, one side has essentially no risk or burden in discovery. Demands for voicemail records may this way become common in a variety of litigation contexts. Employment-discrimination and securities-law claims, for instance, may increasingly turn on what was said to whom, at what time and in what specific tone. As these records play more of a role in major litigation matters, more practitioners will begin to think of demanding such records in their cases.
THE DIGITAL FACTOR
Voicemail records have moved from simple tape recordings to digitized, manipulable records. Such records can easily be distributed to multiple recipients, in some cases as an e-mail attachment. The spread of cell phones, personal digital assistants (PDAs), and various Web and e-mail devices may further multiply the incentives to create, distribute and retain voicemail.
The last straw may be the development of effective voicemail archiving technology. One vendor, for example, advertises that its technology provides the capability to add date/time stamps, recipient and sender telephone numbers, and identification of actions taken (retain, forward, delete, etc.) to voice-mail records. These additions may turn a mass of voicemail records into accessible, usable evidence.
The development of voice-recognition and autotranscription technology may greatly increase such records' value. With such technology, it could soon be possible to search for specific words in voicemail messages, and to print transcripts of such messages for convenient review.
Finally, the increasing storage capacity of voicemail systems may soon make it possible to retain all voicemail records, just as e-mail can be retained today.
What must be done? The e-mail experience offers valuable insight into potential ways to meet the voicemail challenge. Some suggestions follow.
Look before you leap. Once voicemail technology is in place for business, courts are very likely to require that the same technology be applied to ensure that potentially relevant evidence is preserved and produced -- so the trade-off between business efficiency, and litigation risk and burden should be carefully considered before such technology is adopted.
Don't expect courts, or rulemakers, to solve the problem. It's not possible to predict whether a court will impose broad or narrow obligations to preserve and produce electronic materials; nor have rulemakers stepped in to impose specific limits on e-discovery.
Indeed, it's the rare jurisdiction that does much more than state, in general terms, that e-records are discoverable. A business must start with the worst-case assumption that it may be subjected to very broad preservation and production obligations.
Create your own standard of reasonableness. In litigation over the reasonableness of the efforts of a business to preserve and produce voicemails, those efforts will be closely scrutinized. A central element of that scrutiny will be the question of whether the business has adopted neutral procedures to ensure that relevant records are retained and produced. Anything that smacks of a deliberate program to hide or destroy relevant records will be criticized by adversaries (and, most likely, by the courts). In contrast, programs and policies that on their face are neutral will generally receive better responses.
If voicemail record-keeping practices are justified from a business perspective, and also reasonably designed to ensure that relevant records are preserved and produced in the event of litigation, then they are more likely to be accepted than if they were solely a matter of business convenience. Thus, it's important for a business to plan, in advance, how it will show that its practices are reasonable.
Prepare to make a deal. The only way to be certain that an adversary or regulator won't complain about the e-records practices of a business is to engage in deal-making on the subject. For that purpose, of course, a business must be prepared to offer reasonable treatment of relevant records. A business must also be prepared to address this issue early, before a court steps in to impose broad-brush solutions.
Focus on cost. The real weapon, in litigation over electronic records, is the ability of a producing party to shift costs to the requesting party. In appropriate cases, courts will consider such cost-shifting, based on analysis of a variety of factors. One key is whether the materials requested are reasonably likely to advance understanding of the dispute. Making a case for cost-shifting, however, requires that a business show what it has done, why that is reasonable and why more should not be required.
Plan for the crisis. The middle of a litigation crisis is no time to formulate (much less implement) a new data-preservation and -production policy. A business benefits greatly from having a well considered policy in place before litigation. Often, what is possible to preserve and produce under that policy will be the baseline against which actual obligations in litigation will be measured.
ADDITIONAL OBLIGATIONS
A business must also be prepared to respond effectively to the imposition of additional obligations in litigation. The most basic of these is the potential requirement to suspend data-destruction policies in the event of a dispute.
For voicemail, when relevant data may reside in a number of locations, the challenge of suspending data destruction may be particularly great. A business that has no data-management protocol, no allocation of responsibility for data management and no dedication of resources to that effort may struggle when new data-preservation and -retrieval obligations are imposed. In practical terms, the business will likely fail to preserve and produce relevant records, and will suffer the disadvantages of trying to explain -- to adversary and the court -- why the data were likely not important, or the destruction of data not culpable.
Some form of enhanced voicemail technology is inevitable. Lawyers cannot (and should not) try to stop it. The enhanced technology, however, clearly presents new challenges and new risks for business managers, and their lawyers. Failure to prepare for the challenges and risks of this new technology may put a business at serious disadvantage when the new technology is used as a discovery tool in litigation.
Steven C. Bennett is a partner in the New York office of Jones Day, and chairman of the firm's e-discovery committee. This article has also appeared in The National Law Journal.
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