Caught on Tape: The Next Frontier In Electronic Discovery

Voice-mail has traditionally been the most personalized and candid form of communication in business. Even with the proliferation of e-mail and other electronic documents, voice mail continues to have a greater impact on juries and judges. Take, for instance, a case where Kelley Drye & Warren in New York represented Arch Personal Care Products in a non-compete lawsuit against a founder of a company it had just acquired. The defendant was caught trying to establish a competing company even before the acquisition was completed. The case was solidified by a 30-second, expletive-laden voice mail that ultimately led to a $7 million verdict for Arch.

Voice Mail as Evidence

While voice mail has always been subject to discovery and investigation, the process for electronically saving voice mail and filtering through the saved messages has been spotty and very time consuming. All of this is about to change.

According to recent studies by research firm Gartner Group, e-mail and voice mail systems are converging rapidly. e-Mail is now accessible via telephone voice mail systems and voice mail is now being sent to recipients by e-mail. These Unified Message Systems (UMS) are projected to account for at least 80% of all system sales by 2006. Furthermore, according to Forrester Research, within 5 to 6 years, UMS systems will become recognized as the new standard for effective business communications as up to 33% of Global 2000 firms complete full or partial rollouts.

With this convergence, digital voice-mail as part of the electronic discovery process is becoming the new uncharted frontier. Voice mail discovery traditionally has its own set of problems. Principal is the fact that most digital voice messages are not yet “searchable” as they aren't automatically translated into plain text formats. Some very infant technologies exist today which allow for sound matching querying, but they are expensive and time consuming.

Imagine a Fortune 500 company receiving a request for production of all the voice-mail recordings regarding a particular project for two people for the past year. With a state-of-the art UMS in place, one scenario would result in the organization handing over a CD containing a spreadsheet detailing how many calls each person made per day, the average duration, sorted by area code and project. The actual calls themselves would be provided on CD or hard drive.

More likely, with older technology in place, the managing attorney would end up in a conversation with the client's telecommunications manager and learn that there's good news and bad news. Yes, they have conversations archived for the named individuals, but, unfortunately, it will take half a year to give the calls to the legal team. It will take weeks to identify what dates, duration and how many calls have been archived. And even worse, it will take a half a year of legal time to listen to and review the tapes. In addition, a consultant may need to be retained to identify proprietary data and convert the messages into a common format.

For smaller cases, one way to reduce the cost is by utilizing a review tool that efficiently integrates disparate forms of electronic files. By using an application that synchronizes the review of voice-mail with other electronic discovery files, legal teams can use review tools to search using keywords and/or concepts through millions of pages of electronic documents, while, at the same time, obtain easy access to electronic files in their “native format.” Voice mail files can then be located, reviewed and categorized as digital .WAV files and listened to in applications such as Windows Media Player or RealPlayer. The hard truth remains that some unlucky human being must LISTEN to ALL of the digital voice data to try to capture that golden snippet of sound.

In addition, because voice mail is subject to a manual process, it takes a specially trained ear to deduce who lives behind the voice. Is this the voice of the accused, a witness, the attorney or the plaintiff? Is that the doctor calling the patient? Is the conversation admissible or should it be excluded due to privilege? These are just some of the issues litigation teams are facing in today. These issues are about to become much easier to manage.

The Next Wave

ATT Labs is rumored to have technology baking that can find a voice mail recipient or caller at the touch of a button. Imagine the average cell phone user who can't find a client's e-mail address anywhere but knows that the client left it on his voice-mail. A quick dial into a text search via the telephone would bring the cell phone user right to the client's voice message. The organizations that embrace this converged technology when it becomes available will experience tremendous advantage over their competition. Not only will voice mail be able to be stored and saved in a similar manner to all other electronic documents, the cost for reviewing and managing these voice mail files in connection with a discovery request will also be greatly reduced.

In addition, one UMS provider, a company called blue-silicon, is positively breathless about the new world of converged voice mail/e-mail systems. blue-silicon (http://www.blue-silicon.com/) is touting telephony solutions that combines technologies in voice mail, fax, e-mail and unified messaging to allow messages of any media type to be accessed anywhere anytime from any device.

What does this mean for the legal industry and electronic discovery market? A UMS, where messages are stored, retrieved, managed and sent using virtually any communications device, will enable litigation teams to quickly review voice files for privilege and keep out what is not necessary (and possibly damaging to the client) from being entered into evidence just as easily as the other electronic documents. Conversely, the requesting party will now be able to quickly locate audio, which may reveal the “smoking gun”.

For example, a quick search of Martha AND Imclone AND Sam would bring up the audio snippet:

“Martha, Sam here, Imclone Systems may not have a very pretty day tomorrow when their application to the government for Erbitux will be rejected.”

When looking to upgrade to a UMS, organizations should make sure they keep in mind the legal-side of their business to avoid the potential pitfalls of the older systems. Ideally, organizations need to:

• Understand the retention policies and what voice mails must be included in these policies for each department/division of the company.
• Maintain a log of saved voice mails in an online database that can be accessed using normal tools, such as a SQL query language, instead of compressed or proprietary databases. Detailed records should be purged when “rollups” for statistical purposes occur according to the retention policy; however, it is important to be able to suspend purging for legal purposes. This will allow an organization to know what messages are available and for what time period. It will also make the retrieval process much less expensive.
• Create a plan to respond to potential litigation requesting voice-mails and test the plan on a regular basis. Modify spoliation letters and instructions for legal hold to include voice-mail.
• Make sure the telecommunications staff and managers understand the scenarios for potential compliance with discovery requests, so they can be proactive in selecting tools, training personnel and making small tweaks to the infrastructure.

Conclusion

Corporate America is on the verge of creating a new media environment which has traditionally been served by hidden or hard to salvage voice mail systems. Therein lays the opportunity of voice-mail as evidence. Voice-mail, once the largely ignored player on the evidentiary scene, will soon be able to hitch a ride as a passenger on the impetuous train of case law related to e-mail and other electronic discovery. Whether listening to e-mail through text-to-speech capabilities, accessing voice mail through a web browser or sending voice mail as an attachment, UMS are giving new life to voice mail in the highly retrievable and easily searchable world of e-mail. And, what makes these systems so attractive to corporate efficiency is the promise of easier and less expensive discovery and litigation costs.

Voice-mail has traditionally been the most personalized and candid form of communication in business. Even with the proliferation of e-mail and other electronic documents, voice mail continues to have a greater impact on juries and judges. Take, for instance, a case where Kelley Drye & Warren in New York represented Arch Personal Care Products in a non-compete lawsuit against a founder of a company it had just acquired. The defendant was caught trying to establish a competing company even before the acquisition was completed. The case was solidified by a 30-second, expletive-laden voice mail that ultimately led to a $7 million verdict for Arch.

Voice Mail as Evidence

While voice mail has always been subject to discovery and investigation, the process for electronically saving voice mail and filtering through the saved messages has been spotty and very time consuming. All of this is about to change.

According to recent studies by research firm Gartner Group, e-mail and voice mail systems are converging rapidly. e-Mail is now accessible via telephone voice mail systems and voice mail is now being sent to recipients by e-mail. These Unified Message Systems (UMS) are projected to account for at least 80% of all system sales by 2006. Furthermore, according to Forrester Research, within 5 to 6 years, UMS systems will become recognized as the new standard for effective business communications as up to 33% of Global 2000 firms complete full or partial rollouts.

With this convergence, digital voice-mail as part of the electronic discovery process is becoming the new uncharted frontier. Voice mail discovery traditionally has its own set of problems. Principal is the fact that most digital voice messages are not yet “searchable” as they aren't automatically translated into plain text formats. Some very infant technologies exist today which allow for sound matching querying, but they are expensive and time consuming.

Imagine a Fortune 500 company receiving a request for production of all the voice-mail recordings regarding a particular project for two people for the past year. With a state-of-the art UMS in place, one scenario would result in the organization handing over a CD containing a spreadsheet detailing how many calls each person made per day, the average duration, sorted by area code and project. The actual calls themselves would be provided on CD or hard drive.

More likely, with older technology in place, the managing attorney would end up in a conversation with the client's telecommunications manager and learn that there's good news and bad news. Yes, they have conversations archived for the named individuals, but, unfortunately, it will take half a year to give the calls to the legal team. It will take weeks to identify what dates, duration and how many calls have been archived. And even worse, it will take a half a year of legal time to listen to and review the tapes. In addition, a consultant may need to be retained to identify proprietary data and convert the messages into a common format.

For smaller cases, one way to reduce the cost is by utilizing a review tool that efficiently integrates disparate forms of electronic files. By using an application that synchronizes the review of voice-mail with other electronic discovery files, legal teams can use review tools to search using keywords and/or concepts through millions of pages of electronic documents, while, at the same time, obtain easy access to electronic files in their “native format.” Voice mail files can then be located, reviewed and categorized as digital .WAV files and listened to in applications such as Windows Media Player or RealPlayer. The hard truth remains that some unlucky human being must LISTEN to ALL of the digital voice data to try to capture that golden snippet of sound.

In addition, because voice mail is subject to a manual process, it takes a specially trained ear to deduce who lives behind the voice. Is this the voice of the accused, a witness, the attorney or the plaintiff? Is that the doctor calling the patient? Is the conversation admissible or should it be excluded due to privilege? These are just some of the issues litigation teams are facing in today. These issues are about to become much easier to manage.

The Next Wave

ATT Labs is rumored to have technology baking that can find a voice mail recipient or caller at the touch of a button. Imagine the average cell phone user who can't find a client's e-mail address anywhere but knows that the client left it on his voice-mail. A quick dial into a text search via the telephone would bring the cell phone user right to the client's voice message. The organizations that embrace this converged technology when it becomes available will experience tremendous advantage over their competition. Not only will voice mail be able to be stored and saved in a similar manner to all other electronic documents, the cost for reviewing and managing these voice mail files in connection with a discovery request will also be greatly reduced.

In addition, one UMS provider, a company called blue-silicon, is positively breathless about the new world of converged voice mail/e-mail systems. blue-silicon (http://www.blue-silicon.com/) is touting telephony solutions that combines technologies in voice mail, fax, e-mail and unified messaging to allow messages of any media type to be accessed anywhere anytime from any device.

What does this mean for the legal industry and electronic discovery market? A UMS, where messages are stored, retrieved, managed and sent using virtually any communications device, will enable litigation teams to quickly review voice files for privilege and keep out what is not necessary (and possibly damaging to the client) from being entered into evidence just as easily as the other electronic documents. Conversely, the requesting party will now be able to quickly locate audio, which may reveal the “smoking gun”.

For example, a quick search of Martha AND Imclone AND Sam would bring up the audio snippet:

“Martha, Sam here, Imclone Systems may not have a very pretty day tomorrow when their application to the government for Erbitux will be rejected.”

When looking to upgrade to a UMS, organizations should make sure they keep in mind the legal-side of their business to avoid the potential pitfalls of the older systems. Ideally, organizations need to:

• Understand the retention policies and what voice mails must be included in these policies for each department/division of the company.
• Maintain a log of saved voice mails in an online database that can be accessed using normal tools, such as a SQL query language, instead of compressed or proprietary databases. Detailed records should be purged when “rollups” for statistical purposes occur according to the retention policy; however, it is important to be able to suspend purging for legal purposes. This will allow an organization to know what messages are available and for what time period. It will also make the retrieval process much less expensive.
• Create a plan to respond to potential litigation requesting voice-mails and test the plan on a regular basis. Modify spoliation letters and instructions for legal hold to include voice-mail.
• Make sure the telecommunications staff and managers understand the scenarios for potential compliance with discovery requests, so they can be proactive in selecting tools, training personnel and making small tweaks to the infrastructure.

Conclusion

Corporate America is on the verge of creating a new media environment which has traditionally been served by hidden or hard to salvage voice mail systems. Therein lays the opportunity of voice-mail as evidence. Voice-mail, once the largely ignored player on the evidentiary scene, will soon be able to hitch a ride as a passenger on the impetuous train of case law related to e-mail and other electronic discovery. Whether listening to e-mail through text-to-speech capabilities, accessing voice mail through a web browser or sending voice mail as an attachment, UMS are giving new life to voice mail in the highly retrievable and easily searchable world of e-mail. And, what makes these systems so attractive to corporate efficiency is the promise of easier and less expensive discovery and litigation costs.