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The next step in the evolution of e-discovery is voice-mail.
Digitized voice-mail is discoverable as a "data compilation"
and most corporate voice-mail is already being saved in
digitized form. Thus far, however, discovery respondents
have for the most part successfully resisted turning over
voice-mails, citing expense and burdensomeness. That is
likely to change, and soon.
UMS – Unified Messaging Systems – are changing
the game. These systems do not distinguish between e-mail,
voice-mail and other forms of messaging. The more sophisticated
UMS, already deployed in many large companies, smoothly
converts text to voice and vice versa. This is the same
technology that, for example, allows users to ‘read’
voice-mails as e-mail on their portable devices. These
and similar technologies are accelerating and will proliferate
in the coming years, destroying whatever artificial
boundaries may now exist between e-mail and voice-mail,
and making discovery of either an equally straightforward
process.
All of this data, once received, will still have to
be sifted through and analyzed, of course. But new analysis
and compilation technologies are being deployed to seamlessly
integrate various electronic formats, revealing patterns
between e-mails, voice calls, instant messages and word
processing or spreadsheet documents. Despite (or in
addition to) these technologies, there will be new roles
for humans. For example, perhaps thousands of new jobs
for "audio document reviewers" – attorneys
trained to listen to voice-mails and categorize them
by relevance, privilege, and so forth.
In terms of corporate document retention policies,
it would not make sense when using a UMS system to distinguish
between voice-mails and e-mails; thus a company’s
e-mail retention policy would have to be extended to
cover voice-mails. In addition, while it is still unclear
to what extent voice-mails are ‘records’
under Sarbanes-Oxley or various blue sky laws, there
is no logical reason why voice-mails are any less a
‘record’ than an e-mail (or an IM transcript).
Accordingly, attorneys seeking discovery may want to
reformulate their demands. Rather than asking for "all
e-mails and voice-mails related to..." they may
want to consider asking for "that portion of the
UMS database..." or "all messaging system
records, regardless of original medium, related to...."
Given the nature of UMS technology, the respondents’
arguments of cost and burdensomeness will be far less
persuasive.
Another added advantage to UMS records is that they
may contain additional information concretely establishing
links between e-mail and voice calls; patterns that
can be used to help draw inferences. Thus if user X
receives or sends a suspicious but cryptic e-mail to
user Y, it may be relevant to discover if a voice call
was made between the two, especially if it was placed
only a short time after the e-mail.
From the respondent’s standpoint, the UMS will
make it easier to detect and withhold privileged communications
or other data pertaining to privileged communications
(such as the dates and times of voice calls to counsel).
One final but important caveat: behind all of these
developments there may be shadows lurking. Issues of
authentication, integrity, and chain of custody may
be raised. But these issues too will likely be addressed
by the technology. In any event, that discussion will
be saved for a future date, once the obstacles and objections
become clearer.
David Maizenberg is the Director of
Skillman & Company, a consultancy to law firms.
He may be reached at david@skillmancompany.com. |
