You’re invited to a meeting to discuss opportunities to leverage technology to work smarter and faster. The technology, finance and records management leaders got to the meeting early, and you join them at the table. All are enthusiastic about the possibilities: unified communications, including unified messaging. Efficiency, cost savings, simplifying user experience—all desirable concepts in today’s fast-paced and dynamic business world. Eyes on you now: What types of legal risks might we need to address and what is the best way to do that?

Having a seat at the table on the front-end of the process is excellent. Your company is forward-thinking and views its lawyers as trusted advisers. Also a good sign is the fact that your colleagues in the room include representatives from a number of departments across the company coming together to collaborate and discuss strategy moving forward.

Taking small steps first, the discussions focus on unified messaging: benefits and concerns, potential risks and practical tips. 

Unified Messaging- the Basics

Unified messaging, at a very basic level, converges into an email inbox various forms of messaging communications, such as email, voicemail, and fax messaging communications. Unified messaging is a subset of unified communications, which includes both real-time and non-real time communications, including instant messaging, conferencing (including video), collaboration tools and more.

Unified messaging, depending on the technology and features selected, enables you to “see” within your email inbox, when messages are received via voicemail and/or facsimile. For voicemail, you may “see” within your inbox time and day of call, number, and perhaps name of caller. In addition, some systems or company implementations may enable users to select whether they wish to have the system automatically transcribe the audio voicemail into email text. For facsimile transmissions, you may “see” the date and time received, as well as the transmitter’s information in addition to the facsimile transmission itself.

Benefits and Concerns

Sounds great, right? In today’s business environment where professionals are accessing business emails via their smartphones and other mobile devices, integrated messaging channeled to an email inbox:

  • streamlines information sources professionals need to tap to receive the most current incoming business communications;
  • uses push v. pull information processes;
  • provides a single, centralized information source for accessing information; and
  • increases speed and efficiency.

 On the other hand, what about the following?

  • data bandwith and costs for additional electronic messaging sources transmitted to email;
  • accuracy of audio files converted to text;
  • special considerations for foreign language and technical term (e.g., complex chemical or pharmaceutical names, etc.) audio to text translations;
  • retention and archiving business rules for voicemail to email;
  • disposition of audio voicemail once translated to text and transmitted to email;
  • encryption and security; and
  • impact on preservation and discovery.

Potential Risks: Discovery Context

Although voicemail may be discoverable under the Federal Rules of Civil Procedure, for many companies, producing voicemail in its traditional sense may be asserted as being unduly burdensome or expensive- particularly where voicemail is not reasonably accessible. Unified messaging systems can be a game-changer: with voicemail information being sent to email, it may be possible to more easily access and search voicemail messages, which could render undue burden and expense assertions less persuasive. 

Potential risks to consider in the discovery context include:

  • Accuracy of text translations- if text translation features are implemented, how accurate are they? Will this yield false positives or negatives in key word searches? How could this impact accessibility assertions?
  • Accessibility- will unified messaging make voicemails more accessible and less burdensome to preserve and produce? If streamlining and centralizing data and information is part of the business driver for unified messaging, what types of retention and/or backup and archiving practices are being considered (for audio voicemail and voicemail to email) and how does this impact accessibility?
  • Records retention- what are current ordinary course retention practices with regard to voicemail? Do company policies address voicemail and related retention periods? How does unified messaging impact those policies and what adjustments may be necessary?
  • Legal holds- do these policies and practices extend to voicemail? How might voicemail to email logging and text translations impact legal hold policies and practices?
  • Discovery- is unified messaging creating new forms of electronically stored information and expanding electronic communications risks, discovery burdens, and increasing costs? How do accuracy considerations impact these burdens?
  • Defensibility- what types of practices may be necessary to help ensure defensibility of processes in connection with unified messaging? If user preference is part of the company’s roll-out (e.g., if some users can elect to have voicemails translated to text delivered to their email inboxes and others can elect not to use that feature), how does that impact practices regarding preservation and discovery?

Practical Tips to Consider

As with every corporate decision making process, identifying opportunities, assessing potential impact and risks, and identifying ways to address those risks are all key elements to help strike the right balance.  Some practical tips to consider if your company wants to embrace unified messaging:

  • Technical restrictions to limit the length of voicemail messages- consider setting technical restrictions to help limit content and drive behaviors on how voicemail should be used
  • Use policies- assess, and revise as necessary, and consider implementing use policies that state that voicemail should not be used for substantive business purposes; communicate these policies and train on them as part of unified messaging system roll-out and employee onboarding
  • Text translation feature- consider your company’s business, whether text translation features offer the accuracy you need, whether there might be opportunities to “train” the system
  • Retention policies and automated disposition tools- assess and adjust records retention policies to reflect new business processes; consider how audio recordings will be treated in light of new unified messaging practices; consider automated disposition tools within email, and how those tools might address voicemail to email
  • Preservation- provide a method for preservation of voicemails within email that could potentially be subject to legal hold
  • Discovery practices and advocacy- where appropriate, negotiate to limit scope of production and to stipulate early on in any litigation or investigation that voicemail will be excluded