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E-discovery: Managing the duty to preserve voicemail

The type of voicemail system a company uses affects what voicemail data it should preserve

Litigants increasingly seek discovery of voicemail. In a matter in which there is a duty to preserve electronically stored information, there may also be a duty to preserve voicemail messages. What should inside counsel do? New voicemail technologies require new ways of thinking about how to comply with a party’s discovery obligations. 

As a threshold matter, in-house counsel should explore whether parties are willing to stipulate that they will not exchange voicemail. Courts typically will respect and enforce such stipulations. However, when parties cannot agree to limit voicemail discovery, courts will focus on the extent to which voicemail messages are reasonably accessible or unduly burdensome to identify, preserve and produce. For example, in the July 2012 case Merial Ltd. v. Velcera, Inc., the Middle District of Georgia District Court decided that voicemail need not be preserved or collected because it was not reasonably accessible.

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Vincent Syracuse

Vincent J. Syracuse is Chair of Tannenbaum Helpern Syracuse & Hirschtritt LLP’s Litigation & Dispute Resolution Practice. He represents a variety of clients in commercial...

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Paul Sarkozi

Paul D. Sarkozi is partner in Tannenbaum Helpern Syracuse & Hirschtritt LLP’s Litigation & Dispute Resolution Practice. Recently, Paul was named as one of the...

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George du Pont

George F. du Pont (Geordie) is a partner in Tannenbaum Helpern Syracuse & Hirschtritt’s Litigation & Dispute Resolution Practice, which focuses primarily on complex commercial...

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Matthew Sinkman

Matthew J. Sinkman is an associate in Tannenbaum Helpern Syracuse & Hirschtritt’s Litigation & Dispute Resolution Practice.  His focus is on complex commercial litigation and...

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