ThereBy Fred J. Aun | Posted 08-26-2005
Voice Mail Poses Threat, but Gets No Respect
Many attorneys involved in the growing field of "electronic discovery" agree that it's prudent for companies to treat voice mail messages as business records on par with e-mail.
That means government investigators or civil practice lawyers searching for damaging evidence are increasingly likely to ask for those messages.
So far, both government and corporate attorneys have avoided the issue of voice mail files as evidence.
But compliance and legal experts are increasingly worried that it will become the next major minefield in corporate litigation.
Some companies pin their hopes on expectations that judges will deem it "unreasonable" to ask businesses to retain the thousands of voice mails recorded daily.
Indeed, companies are not expected to forever retain every record they generate.
Still, Michele Lange, a staff attorney specializing in electronic discovery for security firm Kroll Ontrack Inc., said lawyers and company executives are nervously awaiting the court case that will "blow the door off" the voice mail topic.
Such a case would entail a precedent-creating judicial opinion approving or denying a request for a company to produce all its discoverable voice mails.
So, if this is the calm before the storm, should companies make a point of archiving and otherwise nurturing the myriad voice messages they receive?
"Maybe," is the bottom-line advice of Steven Bennett, an attorney who writes about electronic discovery.
"We should think about what we're doing," he said. "The question is, are you going to think about it in advance or will you wait until something happens in the course of litigation and then try to make up a system after the fact?"
Bennett and other electronic evidence experts have offered that opinion for several years now, but many companies are still treating voice mail as a disposable form of communication.
's a Gap in the Rules for Voice Mail">
Pierre Richer, a senior vice-president at NEC Solutions (America) in Rancho Cordova, Calif., said the company has strict rules regarding all sorts of things, including harassment and e-mail retention. But voice mail is another story.
"I can talk as a user and somebody who runs a division and who uses e-mail and voice mail," Richer said.
"We have strict guidelines about e-mail and, obviously human rights and all that beautiful stuff. What you can write and not write. But there's no such thing for voice mail. Not yet."
At AT&T headquarters in New Jersey, company spokesman Jim Byrnes said the voice messages received by the corporation's 44,000 employees are routinely erased, either by the workers or by the system, automatically, after a short time.
"We do not have the capacity to retrieve voice mails from a centralized database and sort them," Byrnes said. "Voice mail messages are stored in individual mailboxes and are only retrievable by the owners of the mailbox."
Their willingness to even discuss the issue makes Richer and Byrnes exceptions.
Voice mail, at least in the context of being "discoverable" corporate documentation, appears to be a taboo subject in much of Corporate America.
Repeated attempts at obtaining comments from senior-level IT executives or other corporate officers at large companies, proved unsuccessful.
A number of spokespeople said their companies were unwilling to reveal information that could harm corporate "security."
"I would imagine that's a sensitive issue in most organizations," said Eddie Schwartz, chief technology officer for Securevision LLC, a security and privacy consultancy in northern Virginia. "They're not going to want to come out and tell you exactly what they're doing."
Maybe their lips are sealed because they're not doing anything.
But even if companies do save voice messages, they face a daunting task when it comes to finding those needles in haystacks: voice mails that directly relate to the litigation or investigation at hand.
For the conclusion to this story, click:
Tech Execs Dodge Specter of Voice-Mail Risk.
If you missed the introduction, see Part I:
Voice Mail May be the Next Legal Minefield.