Voice Mail May Be the Next Legal Minefield - ' No Obvious Solution '

The piece offers an unsettling reminder: "When a live voice mail is played for a jury, the jury hears not only the witness' words, but the tone, expression and other subtle cues inherent in speech."

In other words, your PBX just might be a legal minefield.

Many executives are finding themselves in a "quandary" when it comes to voice messages, said Michele Lange, a staff attorney specializing in electronic discovery for security firm Kroll Ontrack Inc.

"Federal rules of civil procedure and discovery laws require us to produce data compilations," she said. "But does that mean voice mail? Nobody really knows."

Click here to read about how CIOs are overlooking compliance best practices.

Despite the common expression, fearful ostriches don't bury their heads in sand. The same cannot be said of all company lawyers.

Afraid of revealing their own companies' shortcomings, some attorneys are taking a "don't ask, don't tell" approach to the issue of voice mail.

"In a large number of litigations, it's still kind of a gentleman's agreement," Lange said.

"I'm not going to ask you for your voice mail if you don't ask me for mine," she added. "We're still trying to get up to speed on e-mail and spreadsheets. Voice mail is still on a distant horizon. Is that the best way to go about practicing law? Probably not."

Lawyers looking to the courts for guidance come up rather empty-handed. There have been a few cases in which voice messaging became an issue, but there's been "no seminal case that holds precedent and gained national presence," Lange said.

Nevertheless, companies should create a written policy regarding voice mail, say the experts. At the very least, businesses should save voice messages once they learn they're bring probed or sued.

A basic voice mail policy would warn employees that messages will be archived. It might stipulate that all messages (except during lawsuits or investigations) will be erased after a specified period.

If nothing else, the policy can be used in court as a plausible explanation for the deletion of messages, a routine practice that a might not look so innocent to a suspicious judge or jury.

For more on the dangers of voice mail, click:
Voice Mail Poses Threat, but Gets No Respect.

For the conclusion to this story, click:
Tech Execs Dodge Specter of Voice-Mail Risk.