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.