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.
There are several types of voicemail systems available to companies, and the type of voicemail system a company uses will determine what steps that company should take to preserve voicemail messages. Of course, regardless of your company’s system, if you have reason to believe that voicemail evidence is central to your case, it is important to consider immediately halting the company’s routine deletion schedules, at least as to key witnesses, or to take other steps to preserve the evidence.
Analog and basic digital systems
Analog systems are increasingly rare. These systems store voicemails on magnetic tape located at the phone company or on tape located at the user’s place of business. Preserving analog voicemail requires making copies of these tapes, or playing the message out loud and recording it onto other recording devices. Once preserved, the process of identifying relevant voicemails can require listening to audio files, which takes time and can become expensive.
The most basic type of digital voicemail is stored on its own dedicated computer server either at the phone company or at the user’s place of business. The voicemails are accessible through phones, but they are not generally accessible through individual users’ computers. Like analog systems, identifying relevant voicemails on this type of system can be expensive because there is generally no way to isolate relevant messages without reviewing entire audio files. In our view, these costs and burdens provide substantial support for an argument that, except in the rare case, a party should not be required to review and produce analog or basic digital voicemails.
More advanced digital voicemail systems send an email alerting a recipient that a voicemail has arrived. In order to access the voicemail, a user must dial in to the voicemail server through a telephone. Because the emails identify the date and time a voicemail was received, the emails can later be used to isolate relevant voicemail messages on the digital server (assuming the emails and the voicemails were both preserved in their respective locations). This can significantly lower the cost of identifying relevant voicemails, and thus may make the discovery of such voicemails more cost-effective and reasonable.
Some digital voicemail systems send an email containing a clickable link directly to the voicemail, allowing the user to access the voicemail message directly from a computer. Using the link, users can download voicemails onto their computer and save them as digital audio .WAV files. Because of this ability to download the voicemail directly to a user’s computer, companies that have email access voicemail systems must search beyond the voicemail server when looking to preserve voicemails.
The most sophisticated voicemail systems automatically send emails attaching digital copies of voicemails to recipients in the form of audio .WAV files. These emails, which typically identify the date and time a voicemail was received, commonly include the caller ID information, which can facilitate a more targeted preservation search, and the voicemails are stored on email servers (as opposed to voicemail servers) that generally preserve information for longer periods of time than other systems. Companies using this type of system have heightened preservation obligations because the emails (and the voicemail files attached to them) can easily be forwarded and may eventually reside on computers located throughout the company, as well as mobile devices.
Inside counsel should understand their companies’ voicemail systems so they can effectively preserve necessary voicemails when required. The more information a voicemail system preserves and distributes to its recipients, the easier it may be to identify relevant voicemail messages later, and such systems make it increasingly difficult to argue that a company’s voicemails are not reasonably accessible. Inside counsel should implement a data retention policy in order to minimize the volume of information retained and be sure to suspend that retention policy when necessary to preserve relevant data.