Voicemail – The Forgotten Form of ESI Evidence

March 1, 2015Articles The E-Discovery Stage Blog

With so much emphasis on e-mail production in e-discovery cases, it is no wonder that other equally compelling forms of ESI evidence sometimes get lost in the shuffle. Voicemail can be powerful, but its pitfalls are numerous. In an age where digital voicemail recordings are stored in a similar fashion to e-mail, yet generally without the same recall functionality, the e-discovery implications of voicemail are immense.

Too often, voicemail is forgotten when it comes to instituting a litigation hold. This can be disastrous, resulting in potential claims of spoliation. Even if unfounded, just a mere allegation of spoliation can be extremely expensive and time consuming. With technological advances like smartphones and voice over IP, voicemail can be saved longer, even if unintended. Its shelf life is not necessarily driven by the need to make room for future messages like it once was.

With all of the ink spilled about the evidentiary power of e-mail, voicemail has slipped below the radar. These simple guidelines can help you stay on the right side of voicemail if placed in a situation where a preservation obligation attaches (for more on when that obligation attaches, see my earlier piece on when a litigation hold is triggered, found here):

  1. In many modern voicemail systems, even user deleted messages are retained for a period of time, or indefinitely without a user initiated action. This can be a trap for the unsuspecting.
  2. Modern voicemail systems endeavor to make it easier to stay connected. This means all types of redundancy, leading to duplicate versions of voicemail messages in multiple locations. For example, many modern voicemail systems can be configured to send voicemails as condensed audio file attachments to emails and text messages, among other things.
  3. Identify the potential users at issue. E-mails can generally be searched for key terms, across users. The same searches generally will not always retrieve relevant voicemail messages absent the use of highly sophisticated software.

A lot of metadata accompanies voicemail-- caller number, call time, message duration, just to name a few. It is likely to be the subject of a discovery request too, and there is a significant body of law that says failure to preserve it is just like failing to preserve the message itself.