An ill-advised voicemail message has more than once proven to be a key piece of fraud-confirming evidence in the course of Caveat's investigative work and according to legal experts, voicmail is proving to be the next frontier in electronic discovery:

Via EWeek.com:

Voice Mail Poses Threat, but Gets No Respect

By Fred J. Aun
Ziff Davis Internet
August 26, 2005

If you shudder at the thought of a jury or government investigator reading your company employees' e-mails, consider what it would be like when indiscreet voice mails are played back in open court. In the appendix of their book, "The Practical Guide to Electronic Discovery," attorney Mary Mack and technology expert Matt Deniston provide readers with a collection of "electronic discovery templates."

Lawyers are urged to use the forms as guides when requesting information from adversaries in lawsuits. As might be expected in these post-Arthur Andersen/Enron days, the electronic discovery templates are for use when seeking e-mails stored in company computers. But Page 122 includes a carefully worded sample request that might catch even the most modern company off guard:

"Produce any and all voice messaging records including, but not limited to caller message recordings, digital voice recordings, interactive voice response unit (IVR/VRU) recordings, unified messaging files and computer-based voice mail files to or from [specified parties] for the period _____ to _____."

The inclusion of that template in the book is one indication among a growing number that, like it or not, voice messages are increasingly considered fair game by lawyers. "Voice mail is often a quick and casual way to communicate, but it is serious business in the world of discovery," wrote April Berman, Mary Ann Miranda and Sonya Smith in an article called "Voicemail: The Other Smoking Gun."

The authors wrote for the American Bar Association's Litigation News, and posted on the Web site of their employer, the law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz. The piece offers an unsettling reminder: "When a live voice mail is played for a jury, the jury hears not only the witness' words, but the tone, expression and other subtle cues inherent in speech." In other words, your PBX just might be a legal minefield.

Many attorneys involved in the growing field of "electronic discovery" agree that it's prudent for companies to treat voice mail messages as business records on par with e-mail. That means government investigators or civil practice lawyers searching for damaging evidence are increasingly likely to ask for those messages.

So far, both government and corporate attorneys have avoided the issue of voice mail files as evidence. But compliance and legal experts are increasingly worried that it will become the next major minefield in corporate litigation. Some companies pin their hopes on expectations that judges will deem it "unreasonable" to ask businesses to retain the thousands of voice mails recorded daily. Indeed, companies are not expected to forever retain every record they generate.

Still, Michele Lange, a staff attorney specializing in electronic discovery for security firm Kroll Ontrack Inc., said lawyers and company executives are nervously awaiting the court case that will "blow the door off" the voice mail topic. Such a case would entail a precedent-creating judicial opinion approving or denying a request for a company to produce all its discoverable voice mails.

So, if this is the calm before the storm, should companies make a point of archiving and otherwise nurturing the myriad voice messages they receive? "Maybe," is the bottom-line advice of Steven Bennett, an attorney who writes about electronic discovery. "We should think about what we're doing," he said. "The question is, are you going to think about it in advance or will you wait until something happens in the course of litigation and then try to make up a system after the fact?"

Check out the original article here.

-- MDT

Labels: Enron, Kroll