Please Stop Speaking After the Tone…
Mark S. Sidoti and Paul E. Asfendis
10-5-2009
Modern companies are presented with many options for generating, receiving,
storing, retrieving and disposing of electronic business communications. Perhaps
nowhere is the progression of technology more evident than in the context of
voicemail. Where voicemail messages were once stored on analog tapes, many
organizations now utilize digital technology, and some opt for "unified" technology
in which a company's telephone and computer systems are integrated.
Not surprisingly, such advances raise a number of e-discovery issues. Businesses
considering implementation of new voicemail technology should evaluate the effect,
if any, that implementation will have on the company's obligations to preserve,
search for, and disclose relevant voicemail messages.
The purpose of this article is to provide an overview of various digital voicemail
arrangements, from very basic to fully unified, and to identify and discuss related
e-discovery issues and practical considerations.
Four Digital Arrangements
In this article, we discuss four digital voicemail arrangement options.
Option 1: Basic Digital Voicemail.
This digital arrangement is similar to analog in that notification of voice messages is
only available to the user via the message light on the telephone and an advisory
when a user calls in remotely. Received voice messages are digitally stored on a
voicemessage server. We assume for purposes of this article that the voice
message server is separate from the e-mail servers and will contain the sole copy
of all stored voice messages.
Option 2: E-mail Notice.
This is similar to Option 1, but with the addition of an e-mail alert notifying users
only that a voice message has been received. As with Option 1, voice messages are
exclusively stored on a central server, and users would be required to access voice
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messages via their office phone or remotely. The added benefit to this arrangement
is immediate notification of messages to remote users.
Option 3: Link.
A "link system" (sometimes referred to as "integrated messaging") provides a
separate folder within the e-mail program. Voicemail messages in the user's
integrated mailbox are visible in this folder as "links" to messages on the voicemail
server. While the messages can be reviewed and played via these links and the
messages are not physically stored in the e-mail system, we presume an
arrangement in which these messages could also be copied to the local client or email system as .wav files and then forwarded as e-mail attachments or saved in the
end user's computer.
Option 4: Unified Messaging.
In this arrangement, the full functionality of the unified system is enabled, allowing
delivery to users of an e-mail containing an attached audio (.wav) file of the voice
message. Users can retrieve the messages remotely or simply play the message on
a media player, such as a BlackBerry device or iPhone.
The message is typically stored on the e-mail server along with other standard email, and would be subject to the company's e-mail auto deletion and back-up
schemes. As with standard e-mail, users may control retention or deletion of the
messages by, for example, "double deleting" (permanently) the files, storing the
messages in e-mail subfolders that aren't subject to the auto deletion scheme, or
copying the files to the hard drive. Also, absent restrictions placed on the system, a
user may forward the e-mail with attached audio file to others, thus allowing for
copies of the voice message to reside in multiple locations.
Issues and Discussion
Before implementing one of the above arrangements (or some hybrid), companies
need to determine the effect, if any, that this will have on their e-discovery
obligations.
Once triggered, the duty to preserve applies to all relevant existing or subsequently
created data. It would not apply, of course, to data, including voicemails, properly
discarded in the normal course prior to the triggering of the hold.1 Thus, once
triggered, the company's obligation to preserve relevant voicemail messages and/or
notification e-mails would necessarily encompass messages and e-mails already
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received and retained pursuant to the company's voice message retention policy,
and those received on a going forward basis.
Option 1, digital voicemail. Of the four arrangements, Option 1 would impose
the least onerous voicemail preservation obligation on a company. Although
possible, identification of relevant voice messages that have already been received
and are within the retention period could be difficult.
In theory, upon issuance of a litigation hold notice or on receipt of a discovery
request, a company would have to suspend its retention policy and halt destruction
of potentially all voice messages on the voicemail server. Then, each message
would have to be reviewed for a relevance determination. This could be
prohibitively time consuming and expensive.2
Notably, however, since the voice messages are digitally stored and might be
identifiable through metadata fields, such as sender/recipient or date received,
preservation may be considered feasible in a case where preservation efforts can
reasonably be limited to voicemails received by certain individuals or groups within
the company.
Case law, however, indicates that the obligation to undertake this effort might only
be triggered in the unusual circumstance when the producing party is aware (or
reasonably should have been aware) of the existence of a highly relevant message
(e.g., the central issue in the case turns on the voice message). This would be akin
to the court's holding in Columbia Pictures v. Bunnell, in which the data stored in
random access memory (RAM) was extremely ephemeral, yet worthy of
preservation given its central relevance to the issues at bar. See Columbia Pictures
v. Bunnell, 2007 U.S. Dist. LEXIS 46364 (C.D. Cal. 2007).
Preservation of voice messages received on an ongoing basis after implementation
of the litigation hold can be accomplished by instructing employees subject to the
hold notice to notify the legal department on receipt of any potentially relevant
voice message so that it can be reviewed and, if necessary, preserved. Courts
would likely impose such an ongoing obligation on a company notwithstanding the
nature of this type of system, because once the hold notice is disseminated,
custodians and the company are aware of the need to sequester the post-hold
created information.
Probably the most significant attribute of the Option 1 arrangement is the lack of
any automatic written notification of a voice message. This simplifies and
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centralizes the litigation hold process. Since voice messages will not be stored on
an e-mail server or any individual's computer, individual employees will have little
or no involvement with identification and preservation of voice messages already
received and stored and deletion schedules can be much more carefully controlled
by the company's IT department.3
Option 2, e-mail notice. A company's preservation obligations under an e-mail
notice arrangement will be similar to its obligations under the Option 1
arrangement. However, an e-mail notice set-up will create an additional data point
within the end user's e-mail system that, if not regularly and permanently deleted,
may point an inquiring party to the fact that a voicemail message was received on a
certain date and at a certain time.
If the particular date, time and custodian are highly relevant to the litigation issues,
a company may have an obligation to preserve the message. (Of course, if the
company strictly enforces a short deletion schedule, some relevant voicemails may
be routinely discarded prior to the hold trigger.)
Because the actual voicemail messages would continue to reside solely on the
voicemail server, IT could maintain strict control over deletion schedules. A simple
"voice message received" e-mail advisory with no content or sender information
would further minimize the risk of discovery and triggering of the obligation to
preserve.
Option 3, Link. Identifying and preserving voice messages using a link, or
integrated messaging, arrangement would be similar to Options 1 and 2 in that
voice messages reside in one location, the voicemail server. The degree of risk
involved with this option will depend greatly on the information contained in the
advisory e-mail containing the message link and whether copying of the voice
message is possible.
The relevance of the message may be identifiable based on the context of the
metadata regarding the sender, recipient and date/time received. Additionally, even
though the actual voice message file resides on a central server, not as an
attachment to an e-mail, if the recipient forwards the e-mail containing the sender
information, or accesses the message through the Web interface and copies it, the
profile of the message increases. Also, depending on the security implemented on
message links, forwarding an e-mail link may allow users to share the content of a
voice message. Users of this type of arrangement should be educated about the
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risks of disseminating voice message notification e-mails to unintended or
unnecessary recipients and copying messages.
Option 4, unified messaging. The fully unified messaging system (i.e., with all
functionality enabled) poses the greatest risk relating to identification and
preservation of voice messages. In this type of system, voice messages, generally
in the form of .wav files, are forwarded directly to the user through the company's
e-mail system. Like standard e-mail, the voice message resides on the e-mail
server but can be duplicated, preserved and forwarded with ease. Although a fully
unified system is the most attractive in terms of user convenience, it poses several
risks and cost concerns:
• Because the messages will enter the end user's inbox, and frequently remain in
folders or hard drive locations, the volume of searchable data and the likelihood of
discovery will increase significantly.
• The company will lose much of its ability to centrally control the retention of the
data as well as the dissemination of the messages. These factors increase the
overall scope and cost of the company's preservation obligation.
• Voice messages residing on the company's e-mail server(s) may be subject to the
typically longer e-mail retention period. In fact, courts will likely treat voice
messages similar to e-mails for identification and preservation purposes. See, e.g.,
In Re: Seroquel Products Liability Litigation, 244 F.R.D. 650, 661 (M.D. Fl. 2007)
(defendant's failure to produce any voicemails, despite the fact that defendant's
unified system delivered same to Outlook inboxes, was one of several discovery
failures argued by plaintiff and listed in the court's decision granting sanctions
against defendant).
• Unified messages typically have identifying information in their e-mail "vehicles,"
such as the originating telephone number or internal extension. This information
can be easily searched and most courts would likely analyze search requests for
relevant phone numbers or names no differently than now-standard requests for email searches using search term protocols.
• This, in turn, will significantly increase the cost of e-discovery processing at every
stage and may entail full message review through listening (which takes more time
than reading) or implementation of new and expensive voicemail transcription
technologies.
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Other Considerations
Given the unquestionable discoverability of voice messages and the penalties for
spoliation, regardless of which voicemail arrangement is used, counsel should
consider express inclusion of voicemail messages in litigation hold notices. Note
that the corporate duty to preserve can be triggered where the custodian simply
recalls that he or she received a relevant voicemail that may still exist on the
company's server and brings that to the company's attention (of course, depending
on the employee, that knowledge might be simply imputed to the company).
Moreover, the critical task of litigation hold enforcement procedures could be
affected by the type of system a company decides to install. With the digital
voicemail and e-mail notification systems (Options 1 and 2), courts would be less
likely to impose preservation, retrieval and production obligations on an
organization absent a specific notification by a custodian that a relevant message
was received and may still exist. Moreover, these systems (particularly if Option 2
does not include any identifying information in the notice e-mail) would effectively
render a company unable to identify relevant voice messages.
However, because Options 3 and 4 systems would leave a trail in a user's inbox,
the company will need to carefully assess whether custodians have searched for
and identified relevant voicemail messages or e-mails "pointing" to existing
messages. Additionally, the company's litigation hold procedures should provide
instruction to users regarding creation of folders to preserve relevant voicemails
and their transmittal e-mails.
Regardless of the digital arrangement, voicemail policies and practices should be
tailored to minimize the risks. Users should be educated as to proper usage of voice
messages, including keeping them brief and as non-substantive as possible;
requesting in their voice message greeting that callers call back or leave name and
number; avoiding messages regarding questionable or controversial matters,
including litigation; not treating voice messages as business documents and not
unnecessarily saving or circulating messages.
While this will not eliminate all of the risks associated with digital voice messages,
companies should encourage and enforce responsible use of voicemail (and all
business communications, especially those that are written or recorded) and
consider implementing a short retention period on voicemail. Through these steps,
an organization can go a long way towards reducing the risks and costs associated
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with preservation and production of voicemail messages in today's legal
environment.
Mark S. Sidoti, a director at Gibbons, is chair of the firm's e-discovery task force.
Paul E. Asfendis is an associate at the firm and a member of the e-discovery task
force. Both authors also practice in the firm's products liability department.
Endnotes:
1. For companies seeking to reduce the discoverable data pool, unless there is a business need to the
contrary, voice messages ideally should not be regularly retained for long periods of time. Of course,
the shorter the retention period, the shorter the amount of time a company whose duty to preserve
has been triggered will have to take steps necessary to ensure that potentially relevant messages are
preserved before they are auto-deleted.
2. Such a burden could provide a basis to argue that the information is not "reasonably accessible"
and thus need not be preserved, restored and produced.
3. Of course, to the extent that an individual employee has saved or is aware of a relevant voice
message received within the retention period, that employee should be instructed in the litigation hold
notice to contact the legal department for possible preservation.
Reprinted with permission from the October 5, 2009 edition of the New York Law Journal© 2009
Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is
prohibited.
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