posted on Monday, March 10, 2008 10:16 AM
by
Lou Michels
Listening Post
An interesting article in E-Discovery Advisor magazine notes the increasing use of so-called "unified messaging systems" ("UMS"), which integrate email and voicemail systems. The upshot of this is that voicemail recordings, most of which are now digitized anyway, are now considered as permanent as email, and, therefore, discoverable. The new changes to the Federal Rules of Civil Procedure relating to the discovery of electronically stored information clearly include voicemail systems.
From a practitioner's perspective, voicemail is just about the only thing that is more persuasive to a jury than email regarding what people were really thinking about something. Voicemail recordings have been used in several high profile trials to conclusively show not only that a certain act occurred, but the state of mind of the person who performed it. The real time, unvarnished, expository nature of a voicemail communication is extremely persuasive. The fact that it frequently reflects the emotional state of the listener only bolsters its credibility for a jury as an indicator of what's really going on.
As a result, the long term preservation of voicemail messages, either through a UMS or such common features as voiceover internet systems, runs the risk of inadvertently giving litigants evidence that previously could only be obtained by wiretapping. Companies involved in changing over their phone systems to a UMS or similar system should consider protocols to ensure that messages are not retained past their useful life. For example, voicemail message recipients might be required to listen to their voice messages daily and delete them after listening unless the message is a business record or subject to a "legal hold" placed on communications as part of a lawsuit or investigation. Storage criteria for these kinds of messages should be specific and compliance should be part of a regular audit by internal or external counsel. Recording telephone conversations (which is possible with most voicemail systems, albeit with some effort) should never be allowed unless done with client or participant consent, and only in specific cases.
As with email, in terms of retaining messages, for most employers, less voicemail stored in the system will definitely be more.