The Discoverability of Digital Voicemail

Companies today have more options than ever for generating, receiving, storing, retrieving and disposing of voicemail messages.

In the past, voicemails were stored on analog tapes, but increasingly, organizations now use unified, digital systems that integrate telephone and computer systems. While more efficient and flexible, these advances raise a number of electronic data discovery issues.

If your organization is considering an upgrade, it's imperative to evaluate the effect, if any, that the new system will have on your obligation to preserve, search and disclose relevant voicemail messages.

Here is a brief overview of EDD issues and how courts are addressing the discoverability of digital voicemail messages.

DIGITAL OR ANALOG

Digital systems store the messages on a central server, from which, if not routinely deleted, they can be retrieved. Some create additional data points, such as e-mail "message received" notification or e-mail pointers that allow the messages to be retrieved from the server via e-mail.

These notification systems sometimes use e-mail notices that identify the caller, date, time and duration of the call -- which provides the firm (or a litigation adversary) with the ability to trace an employees' receipt of messages, and can lead to additional burdensome discovery demands.
Depending on the system, the manner in which this metadata is retained will likely be under your control; and the messages and accompanying e-mails are likely to be subject to your data backup and retention policies. However, that may be easier said than done -- digital messages can be more difficult to delete because redundant backup systems and personal user habits often result in multiple copies.

Unified messaging systems, where voicemail messages appear in the user e-mail box as audio files (most commonly WAV), pose the greatest risk and potential for increased EDD costs. They not only create additional, readily accessible data for every message, but also significantly expand the size of the user's e-mail boxes, persist for long periods of time and can be widely disseminated with the ease of forwarding an e-mail.

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Source: Law.com
By: Mark Sidoti & Paul Asfendis