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The use of voice mail as a business tool has grown dramatically in recent years. Development of digital recording and storage technology threatens to make such records as permanent and accessible as e-mail. Digital voice mail 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, voice mail is potentially discoverable. The question then arises whether voice mail must be preserved. In general, courts enforce a concept of “spoliation” of evidence. The essence of the spoliation concept is that parties in litigation have a duty to preserve evidence that may be relevant to the litigation. The duty to preserve evidence, moreover, may arise even before formal litigation proceedings are commenced, so long as litigation is imminent. 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 voice mail would be harder in several ways. First, unlike e-mail, the principal focus of voice mail records is the recipient of the message. It is typically the recipient’s voice mail account that will contain a record of a message. To preserve voice mail records effectively, likely recipients must be identified. Recipients of relevant messages, however, may be a much larger group than the senders of such messages. Thus, to preserve potentially relevant messages, a business may be required to cast a much wider net. Second, unlike e-mail, voice mail does not generally have immediately useful search capabilities built in. One cannot simply review the “to” and “from” lines of an e-mail, or the “re” indication, to determine the general nature of the communication. Nor, unless voice mails are transcribed or otherwise converted into searchable text, is it currently possible to review them easily for relevance and privilege. Review of voice mail may require hours, days or even weeks of real-time listening to messages, in an effort to determine what should be done with the messages from a discovery standpoint. Finally, production of voice mail messages in discovery may be complicated by the fact that the sounds of the actual messages may be critical to understanding what was being conveyed. A mere transcript of a message cannot capture tone, emphasis and all the other subtle cues provided by actual speech. Thus, requesting parties may insist on actual copies of messages rather than (or perhaps in addition to) transcripts. The added cost and burden may be substantial. Editing oral materials for relevance and privilege, for example, will present unique challenges to most lawyers. Voice mail can be powerful evidence. Even compared to e-mail, where informal, often ill-considered messages can produce damning admissions, the immediacy of voice mail can make or break a case, which makes it a natural target for discovery by parties in hard-fought litigation. 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 voice mail records may thus become common in a variety of litigation contexts. Employment discrimination and securities law claims, for example, may increasingly turn on what was said to whom, at what time and in what specific tone. As these records increasingly play a role in major litigation matters, more and more practitioners will begin to think of demanding such records in their cases. The digital factor Voice mail records have long since 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 cellphones, personal digital assistants and various Web and e-mail devices may further multiply the incentives to create, distribute and retain voice mail. The last straw here may be the development of effective voice mail 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 voice mail records into accessible, usable evidence. The development of voice recognition and autotranscription technology, moreover, may add greatly to the value of such records. With such technology, it may soon be quite possible to search for specific words in voice mail messages, and to print out transcripts of such messages for convenient review. Finally, the increasing storage capacity of voice mail systems may soon make it possible to retain all voice mail records, just as e-mail can be retained today. What needs to be done? The e-mail experience offers valuable insight into potential means to handle the voice mail challenge. Look before you leap. Once voice mail technology is in place for business purposes, courts are very likely to require that the same technology be applied to ensure that potentially relevant evidence is preserved and produced. The trade-off between business efficiency and litigation risk and burden should thus be carefully considered, in advance of the adoption of such technology. Don’t expect courts, or rule-makers, to solve the problem. It is not possible to predict whether a court will impose broad or narrow obligations to preserve and produce electronic materials. Nor have rule-makers stepped in to impose specific limits on electronic discovery. Indeed, it is the rare jurisdiction that does much more than state, in general terms, that electronic 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 voice mails, 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 themselves). By contrast, facially neutral programs and policies will generally receive better responses. If voice mail 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, they are more likely to be accepted than if they were solely a matter of business convenience. Thus, it is important for a business to plan, in advance, how it will show that its practices are reasonable. Prepare to make a deal. The only real way to be certain that an adversary or regulator will not complain about the electronic 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 at issue in the litigation. Making a case for cost-shifting, however, requires a business to be in a position to 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. Precisely the opposite is true. A business benefits greatly from having a well-considered policy in place, in advance of litigation. Often, what is possible to preserve and produce under that policy will be the base line against which actual obligations in litigation will be measured. Additional obligations A business must be prepared, moreover, to respond effectively to the imposition of additional obligations in the event of litigation. The most basic of these additional obligations is the potential requirement to suspend data-destruction policies in the event of a dispute. For voice mail, 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 greatly 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 thereafter suffer the disadvantages of trying to explain (to adversary and court) why the data were likely not important, or the destruction of data not culpable. Some form of enhanced voice mail 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 to meet the challenges and risks of this new technology may put a business at serious disadvantage when this 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.

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