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Voicemail Poised To Become The Next Target Of E-Discovery

Lawyers Weekly USA
July 2003

Voicemail — long neglected by attorneys — is shaping up as the next frontier in electronic discovery.

Increasingly routed over the Internet instead of traditional phone lines, voicemail is now being stored like other electronic files, which makes it a much easier target for discovery. These voicemail "packets" can be attached to e-mail, creating much larger storage capacity and easier retrieval.
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The potential result: More audio information stored for longer periods of time on a greater number of devices, such as cell phones and personal digital assistants.

Archiving technology can now add "date and time stamps, recipient and sender telephone numbers, and identification of actions taken such as retain, forward or delete," said e-discovery expert Steven C. Bennett of New York City. "These additions may turn a mass of voicemail records into accessible, useable evidence."

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This can be an important tool in building a timeline in a case, according to computer forensics expert Alan E. Brill, a consultant with Kroll Ontrack.

The most formidable obstacle to voicemail discovery is that companies typically delete voicemail after a short period of time, according to Atlanta products liability defense attorney Laura Lewis Owens.

"Usually it's a matter of days, not months, and once voicemail is deleted it's more difficult, if not impossible, to recover, as compared to e-mail and other forms of data," she said. "voicemail is not indexed and is not readily searched."

But the here-today-gone-tomorrow nature of voicemail could become a thing of the past, according to Los Angeles technology attorney, Michael R. Overly.

"While voicemail on older systems may only be stored for up to a month at the most, it could be available for months, or even years, when it is Internet-based," he said. "With the capability of it being attached to e-mail, chances are greater that it will be around up to a year later. We may be approaching the time when voicemail is as easy to find as e-mail."

Michelle C.S. Lange, staff attorney for e-discovery forensics specialist Kroll Ontrack, goes a step farther, saying it's prudent to consider voicemail as a "footprint in the cement." She said it is a mistake to advise clients that a sensitive message is better sent as voicemail rather than e-mail.

"voicemail is still potentially dangerous," Lange said. "It's best to do neither because you don't want to commemorate what may come back to haunt you. The company could be burning it to a back-up tape and keeping it for a while before recycling the tape. You just don't know."

Avoid A Fishing Expedition
Current technological limitations have the potential to make voicemail discovery prohibitively expensive and time consuming.

For example, there is no commercially available software to conduct word searches. Therefore, reviewing stored voicemail remains a laborious process of either listening to it and taking notes, or reviewing a transcript.

"The only way to conduct effective discovery of voicemail is to be very specific for what you're looking for," said Overly.

The alternative is a very time-consuming search that is unwieldy and impractical, according to Steven Brower, a trial attorney in Costa Mesa, Calif.

"Even if voicemail is automatically sent out as e-mail, you're still talking a year or more of time to retrieve and listen to all the voicemail of all employees from ABC company from the past year," said Brower. "The voicemail still won't be categorized by subject. Converting to e-mail does not necessarily make it easier to retrieve."

That kind of a random search can become extremely expensive, according to Brill.

"If your discovery request is a pure fishing expedition, you have to decide if you have enough people with enough time to listen to it or read it, hoping for a hit," he said. "That's obviously a tactical litigation decision."

But, Brill added, "if something is there and is relevant and you know about it, it's probably worth it to request voicemail in discovery."

Brill noted that software to conduct word searches of stored voicemail is still a long way off.

"Having a computer 'listen' to voicemail is still a little bit like Star Wars," he said. "That technology exists in the intelligence community on big mainframes, but I'd be surprised if there were significant commercial breakthroughs in less than five years."

Besides, broad discovery requests for voicemail would likely prompt an objection from opposing counsel, according to Owens. She noted that the few reported decisions on discovery of voicemail in civil cases have focused on the practical difficulties of retrieving and producing it, as well as privilege issues.

Assessing privilege requires an attorney to spend a significant amount of time reviewing the messages, which plays into the burden and cost concern. This complexity can be compounded by messages that are left in foreign languages, which occurs regularly in the high-tech industry, according to Brower. Interpreters would be needed to decipher the messages.

One retrieval technique that may become useful, according to Lange, would be to apply voice recognition software to the sound file of a voicemail message and print out a transcription. Brower added that some systems send voicemail as transcripts rather than as an audio attachment, which permits the application of word search software.

Little To Lose
Bennett said attorneys representing individual plaintiffs have little to lose in requesting voicemail messages and records. It's likely those clients would not face similar discovery demands, he said, because they probably have little electronic data defendants would be interested in.

"Why not ask for everything you can get?" asked Bennett, a trial lawyer. "It doesn't take too much to add a few key strokes to your discovery forms."

But doing so would likely prompt defendants to raise burden and relevance objections, he acknowledged.

"You're off to the races [in a discovery battle]," the e-discovery expert said. "Accessibility is a large part of the question. You could go off into many far out tangents, like how a party's personnel programmed their PDAs. Where's the limit? Do they all have to turn in their PDAs? That's governed by the unreasonable standard in [Federal] Rule [of Civil Procedure] 26."

Overly advised conducting preliminary discovery asking when calls were made and by whom, thus creating a way to help target discovery requests for specific messages and to overcome burden and irrelevancy objections.

Brower agreed that storing voicemail via e-mail makes it easier to find "because you don't have to use software matching that of the vendor's proprietary voicemail system. You have a separately recorded item as an attachment that can be played at any personal computer. But that assumes you know who sent the voicemail and who received it."

Preserve It Or Lose It
One of the most important steps in voicemail discovery is to contact opponents early so they're on notice not to destroy the potential evidence.

"You want to lock in the information at a given point in time," said Brill. "You can then at least have the chance to analyze it, as opposed to it being destroyed accidentally, deliberately or by an automated process. Keep your options open as you proceed in litigation."

Brill noted that a "preservation letter" should also request that an opponent maintain the switches attached to the voicemail system, which provide details on time and origin of messages. It's equally important to immediately request a copy of the opponent's data retention policy in order to preserve rights for a spoliation claim.

Another useful discovery technique, he suggested, is to depose a company's voicemail supervisor to find out what system is used, what is being recorded, what is being logged in, how records are maintained, and what equipment is being used to transfer voicemail to e-mail.

"Just as you have the right in planning discovery to depose a company's computer expert on its computer system, you can do the same regarding voicemail," he said. "You want to work out a way to quickly preserve the data, perhaps by dumping the data in storage under the supervision of a third party for purposes of the litigation."

Brill added: "As data becomes more and more integrated, you'll want to ask about back-up tapes. If you don't ask, you're never going to know."

Preserving the information is a critical first step, but retrieving it remains difficult in part because the systems are owned and operated by a wide variety of third-party vendors.

Computers housing voicemail systems owned by the third-party vendors are not readily open for review because of concerns over proprietary interests, searches that may corrupt the system, and voiding of warranties.

Experts suggest that obtaining and serving a subpoena on a vendor is probably the best way to make the voicemail system available for inspection.

Even if made available, a forensics expert can't access the data unless the examining system mirrors what's used in the voicemail system, which means discovery may have to be conducted at the vendor's facility, according to Overly.

"With the wide range of proprietary systems out there, attorneys may not know what they're dealing with," Overly said. "A lot of attorneys are purchasing the software to conduct a review of e-mail themselves. But it's very different for voicemail, and a competent forensics expert should handle it."

If attorneys ratchet up discovery demands for voicemail, counsel for companies will likely advise their clients to revise their document-retention policies to minimize retention of voicemail records.

"They may take proactive measures," said Overly. "They may develop policies emphasizing that voicemail shouldn't be kept for very long, that it really is meant to be ephemeral."

But Bennett said the integration of voicemail with e-mail and other electronic devices "may multiply the incentives to create, distribute and retain voicemail. 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 voicemail might make it possible to use voicemail as a significant adjunct to e-mail, or even in lieu of e-mail."

Bennett added that courts and rule-makers will not likely fashion uniform limits on voicemail discovery since they haven't done so with e-mail to date. In fact, he described court responses to e-mail discovery fights as "erratic."

Accordingly, Bennett said, "a business must start with the worst-case presumption that it may be subjected to very broad preservation and production obligations." He said businesses should be planning now for document-retention policies for voicemail, instead of waiting until a litigation crisis to formulate one.

"With voicemail, a business that has no data management protocol, or no allocation of responsibility for data management, may struggle greatly when new data preservation and retrieval obligations are imposed [by a judge]," he said.

Another issue is the privacy interests of callers, Overly said. Document-retention policies typically will advise workers that they have no privacy interest in the company's e-mail system, and in the event of litigation it may have to be produced.

But most companies do not have written policies on retention of voicemail messages, he said. Callers and recipients of voicemail may have a reasonable expectation of privacy absent a written statement otherwise, he said.

"It may be a tough sell to a judge to seek all voicemail over the last three months [because of privacy concerns]," Overly said. "You may have to get an independent third party to review the voicemail, but that's an expensive, long process."

This article has been reprinted with the permission of Lawyers Weekly USA, the national newspaper for small law firms. To subscribe, please visit www.lawyersweeklyusa.com or call (800) 451-9998.

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