Tech Execs Dodge Specter of Voice-Mail Risk

By Fred J. Aun  |  Posted 08-25-2005

Tech Execs Dodge Specter of Voice-Mail Risk

Despite warnings that voice-mail messages could expose them to the same kind of litigation risks as e-mail and other documents, few companies have acknowledged the problem, let alone acted on it.

Lawyers say companies should formulate policies about voice-mail preservation, and server-based PBX technology exists to make the practice relatively easy. But voice-mail preservation seems to be a back-burner issue with many organizations.

Compliance and legal experts, however, are increasingly worried that it will become the next major minefield in corporate court work.

Corporate IT executives appear to be aware of the issue, but also seem to be steering clear of it in discussions with both lawyers and the press.

"Even with all the Sarbanes-Oxley projects we're doing, I don't think we've looked into guidelines for the use of voice mail," says Pierre Richer, a senior vice president at NEC Solutions (America). "Why not? That's a good question."

He surmised it was because most employees share his view of voice mail.

"With voice mail, when you delete it, it just disappears, and I guess it would be impossible to track," he says. "I'm assuming that if it's deleted, it's not stored anywhere."

Many corporate citizens believed the same thing about e-mail, until litigants forced one another to dig through backup tapes and other archives to produce incriminating documents.

"Voice mail is no different than e-mail," warns Alexander Lubarsky, a California lawyer specializing in technology litigation.

Juries and judges don't look kindly on companies that shred damaging documents and erase similar important e-mails.

"It's simply an audible message rather than a written message," Lubarsky says. "Both can be made binary, forwarded and saved. The rules, as they apply to e-mail, should also apply to voice mail."

However, "this issue has never come up," says phone-system expert Allan Sulkin, founder and president of TEQConsult Group, who writes requests for proposals for many large companies seeking telephony solutions and teaches classes on the subject nationwide.

"I've talked with several thousands of people over the years, and it has not come up," he says.

Lubarsky agreed voice mail "doesn't come up a lot" in corporate discussions about document preservation.

"Most people are concerned with e-mail," he says. "But if a savvy corporate client brings it up, I tell them the prudent thing to do is treat voice mail as you would e-mail and any other discoverable document. And most courts would find it so." Unfortunately, there are some big—and problematic—differences between voice and e-mail messages. Saving and retrieving e-mail is relatively easy. E-mail systems are usually server based. E-mails usually consume only tiny amounts of memory.

Next page: How do you search a sound?

How Do You Search

a Sound?">

Enterprises can archive voice messages with periodic "data dumps," says Sulkin. But he noted this is "not traditionally done."

"That could be a problem," says Sulkin. "Most voice-mail systems are stand-alone and usually there are limits to the voice-mail-box storage capacity per subscriber. Unless you're going to continually swap out memory and add more memory, it could be an issue."

Storing voice messages as digital audio files can become unwieldy because "you need a lot more storage space for voice than for e-mail," he noted. "With voice, it would require massive amounts of storage."

The 800-pound gorilla, however, is retrieval. Although modern voice-mail systems stamp messages with dates, times and other information, most voice mails—unlike e-mails—don't come with "subject" sections.

So a search for smoking-gun voice messages, be they sought by Uncle Sam or by legal adversaries, might require a human to sit and listen through reams of "Bring home a pizza," "I'm returning your phone call" and "I'm taking a sick day" messages before finding anything worthwhile.

Don't look to technology to ease the pain. Nothing compares to the old-fashioned method.

Even ScanSoft Inc., which bills itself as the world leader in voice-recognition software, says technology hasn't quite reached the point where reams of stored voice-mail recordings can be reliably searched by computers.

"Our AudioMining technology could be used as a core technology to build an application such as what you describe, but to my knowledge that application layer does not exist today," according to company spokeswoman Erica Hill.

In an e-mail interview, telecom consultant Martin Parker, retired from industry giant Avaya Inc., says Avaya makes no such application either. "But we are linking up with suppliers who do this for call centers and want to link up with Avaya to store voice messages," Parker promises.

Throw into the mix other annoying questions, and it might be apparent why companies don't want to handle this hot potato: Should they also ask employees to preserve any work-related cell phone messages? What about work-related messages left on home answering machines?

"It's a tricky topic," says Eddie Schwartz, chief technology officer for Securevision LLC, a security and privacy consultancy in northern Virginia. "But I can tell you I work with people, and I've worked in places where there are, in fact, policies and practices in place."

For the introduction, see Part I of this story:
Voice Mail May Be the Next Legal Minefield.

For Part II, click:
Voice Mail Poses Threat, but Gets No Respect.