No Obvious Solution

By Fred J. Aun  |  Posted 08-25-2005

Voice Mail May Be the Next Legal Minefield

If you shudder at the thought of a jury or government investigator reading your company employees' e-mails, consider what it would be like when indiscreet voice mails are played back in open court.

In the appendix of their book, "The Practical Guide to Electronic Discovery," attorney Mary Mack and technology expert Matt Deniston provide readers with a collection of "electronic discovery templates."

Lawyers are urged to use the forms as guides when requesting information from adversaries in lawsuits.

As might be expected in these post-Arthur Andersen/Enron days, the electronic discovery templates are for use when seeking e-mails stored in company computers.

But Page 122 includes a carefully worded sample request that might catch even the most modern company off guard:

"Produce any and all voice messaging records including, but not limited to caller message recordings, digital voice recordings, interactive voice response unit (IVR/VRU) recordings, unified messaging files and computer-based voice mail files to or from [specified parties] for the period _____ to _____."

The inclusion of that template in the book is one indication among a growing number that, like it or not, voice messages are increasingly considered fair game by lawyers.

"Voice mail is often a quick and casual way to communicate, but it is serious business in the world of discovery," wrote April Berman, Mary Ann Miranda and Sonya Smith in an article called "Voicemail: The Other Smoking Gun"

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The authors wrote for the American Bar Association's Litigation News, and posted on the Web site of their employer, the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz.

Next Page: No obvious solution.

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."

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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.