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For business managers, information technology professionals and their lawyers, the recent explosion in awareness and use of electronic documents in litigation have presented great challenges. The widespread use of business e-mail, for example, has in many cases required the revamping of document retention policies and the dedication of substantial new resources to ensure that the enormous volume of electronic communication is properly treated from a regulatory and litigation preparedness perspective. The problem may soon get substantially worse with a similar explosion in the use of voicemail and its most recent developments: digitized voicemail and the technology that threatens to make it as permanent and accessible as e-mail. Voicemail may open a new — and perhaps more difficult — battle in the e-discovery wars. IS VOICEMAIL DISCOVERABLE? More than 30 years ago, the framers of the Federal Rules of Civil Procedure recognized that “data compilations,” including data in electronic form, are generally discoverable. Since the amendment of the Federal Rules in 1970, courts have routinely allowed discovery of most forms of electronic communications and computer-stored documents. On that broad definition, voicemail is potentially discoverable. [FOOTNOTE 1] Once it is accepted that a form of data is potentially discoverable in litigation, the question arises whether the data must be preserved. Deliberate (and perhaps even negligent) destruction or modification of evidence may constitute “spoliation,” which may subject a litigant to a range of sanctions — from imposition of costs, to application of adverse inferences, to striking of pleadings and default judgment. The ultimate sanctions — penalties for contempt or obstruction of justice — although relatively rare, are quite possible. The preservation, review and production of voicemail records may be even harder to handle than other electronic records. For example, a common solution in attempting to preserve e-mail records is to identify likely accounts where relevant e-mail might reside, to make copies of those accounts and then to review the preserved records for relevance (and privilege). Voicemail makes the process harder in several ways. First, unlike e-mail, the principal focus of voicemail records is on 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. 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, voicemail does not generally have immediately useful built-in search capabilities. One cannot simply review the “to” and “from” lines of an 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 voicemail easily for relevance and privilege. In essence, review of voicemail 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 voicemail 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. POWERFUL EVIDENCE Voicemail evidence is powerful. Even beyond e-mail, where informal, often ill-considered messages can produce damning admissions, the actual sound of an oral message (which produces a “you are there” sense not generally available from written words) can literally make or break a case. In one recent insider trading action, for example, a voicemail provided to prosecutors revealed that the defendant had announced his stock trading intentions and awareness of insider information. [FOOTNOTE 2] The capacity of such evidence to have a major impact on the outcome of a litigation (either affecting the substantive result or putting pressure on a party to settle) means that voicemail may be a natural target for discovery by parties in hard-fought litigation. Regulators may not be far behind in demanding such records. Technology, of course, is what got us into this problem in the first place. Increased computer processing and storage capacity, and decreased cost for computer service, are what made e-mail possible (and now ubiquitous). The same trends are affecting voicemail. While 20 years ago voicemail was something of a novelty, today it is a standard element of business communications. Voicemail records, moreover, have long since moved from simple tape recordings to digitized, manipulable records. Such records can easily be distributed to multiple recipients. Indeed, an increasingly popular technology may soon involve the creation of digitized voicemail packets, which can be attached to e-mail, and widely distributed. The integration of electronic devices (cell phones, personal digital assistants and various Web and e-mail devices), moreover, may further multiply the incentives to create, distribute and retain voicemail. The last straw here 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 voicemail records. These additions may turn a mass of voicemail records into accessible, useable evidence. The development of voice recognition and auto-transcription technology, moreover, may add greatly to the value of such records. With such technology, it may soon be possible to search for specific words in messages and to print transcripts of messages for convenient review. Finally, the increasing storage capacity of voicemail systems may soon make it possible to retain all voicemail records (just as it is now theoretically possible for most businesses to retain all e-mail records). The only real constraint is the willingness of the business to dedicate storage capacity and the resources of computer professionals to the problem. And there may be powerful incentives for businesses to make use of this new technology. Just as e-mail has improved the efficiency of business, so too enhanced voicemail may offer benefits. The ability to retain, search and easily transcribe voicemails, in theory, might make it possible to use voicemail as a significant adjunct to (or in some regards, in lieu of) e-mail. Voicemail may also be useful for recording consumer responses to automated prompting for information. Only the future can tell how popular these new voicemail technologies may become. From the perspective of recent history, however, the great likelihood is that this new, enhanced voicemail technology may soon become commonplace in business. MEETING THE CHALLENGE Fortunately for business planners and their lawyers, the experience with e-mail should offer valuable insight into potential means of handling the voicemail challenge. Among the lessons to be applied here: � Look before you leap. Once voicemail 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 adopting such technology. � Do not expect courts or rule-makers to solve the problem. Thus far, in response to e-mail, the reaction of the courts has been (to put it charitably) erratic. 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. Most formal rules of procedure say nothing about how to handle the unique burdens and processes of electronic discovery. This gap in rules is likely to continue for the foreseeable future. For planning purposes, therefore, a business must start with the worst-case presumption 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 scrutinized closely. 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, 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, they are more likely to be accepted. 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, 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. [FOOTNOTE 3] One key to that analysis is whether the materials requested are reasonably likely to advance understanding of the issues in the litigation. If a business has, with reasonable efforts, preserved and produced a substantial volume of highly relevant materials, and if the additional information requested is of marginal value (or merely a “fishing expedition”), and production of such information involves great cost, then the business may succeed in shifting the cost of “heroic” data preservation and production efforts to an adversary. 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-management 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 baseline against which actual obligations in litigation will be measured. With voicemail especially, a business that has no data management protocol, no allocation of responsibility for data management and no dedication of resources, may struggle greatly when new data preservation and retrieval obligations are imposed. Steven C. Bennett is a partner in the New York office of Jones, Day, Reavis & Pogue and chair of the firm’s e-discovery committee. The views expressed are solely those of the author and should not be attributed to the author’s firm or its clients. ::::FOOTNOTES:::: FN1 See, e.g., Martin H. Redish, “Electronic Discovery And The Litigation Matrix,” 51 Duke LJ. 561, 628 (2001) (defining electronic discovery to include voicemail); Shira A. Scheindlin & Jeffrey Rabkin, “Electronic Discovery In Federal Civil Litigation: Is Rule 34 Up To The Task?,” 41 B.C.L. Rev. 327, 333 (2000) (same). There is a more than competent argument to be made, however, that electronic records (such as voicemail) should be subject to rules that differ from the rules for conventional, paper records. See Jonathan M. Redgrave & Ted S. Hiser, “The Information Age, Part I: Fishing In The Ocean, A Critical Examination Of Discovery In The Electronic Age,” II Sedona Conf. J. 195 (2001). FN2 See United States v. Smith, 15 F.3d 1051 (9th Cir. 1998). The defendant’s conviction, however, was nearly reversed on appeal because the prosecutors obtained the voicemail from an employee who hacked into the defendant’s voicemail account. Thus, the court held that the voicemail was the product of illegal interception of a wire communication. Because there was additional evidence of the insider trading (not related to the voicemail), however, the conviction was affirmed. FN3 See Jonathan M. Redgrave & Erica J. Bachmann, “Electronic Discovery: Recent Views On Cost-Shifting,” 49 Fed. Law 36 (2002).

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