Electronic Discovery: Should You Be Thinking about VoiceMail?

The publicity this week surrounding a discovery order in the Vioxx litigation might have some lawyers wondering for the first time about the discoverability of voicemail messages in a civil case. It's not a new issue, though, even if it remains a troublesome one. In an article four years ago, voicemail was called "the latest front in the discovery wars." The author of that piece pointed out some important differences between voicemail and email--

First, unlike e-mail, the principal focus of voicemail records is on the recipient of the message. It is typically the recipient's voicemail account that will contain a record of a message. To preserve voicemail records effectively, likely recipients must be identified. Recipients of relevant messages, however, may be a much larger group than the senders of such messages. Thus, to preserve potentially relevant messages, a business may be required to cast a much wider net.

Second, unlike e-mail, voicemail does not generally have immediately useful built-in search capabilities. One cannot simply review the "to" and "from" lines of an voicemail, or the "re" indication, to determine the general nature of the communication. Nor, unless voicemails are transcribed or otherwise converted into searchable text, is it currently possible to review voicemail easily for relevance and privilege. In essence, review of voicemail may require hours, days or even weeks of real-time listening to messages in an effort to determine what should be done with the messages from a discovery standpoint.

These problems still exist in 2006, even when a company's voicemail system is integrated with its email. See "Assessing the Importance of Voice Mail In Discovery," by Conrad J. Jacoby. Does it mean that the discovery of voicemail messages is always too burdensome to be attempted? Not necessarily. Despite the problems, the discovery of voicemail messages can be important in some types of civil cases. One author notes, for example, that "employment discrimination and securities law claims . . . may increasingly turn on what was said to whom, at what time, and in what specific tone."

It's a point that applies to many sorts of civil cases. What does it mean for you? Even if the discovery of voicemail message remains the exception rather than the rule, it's something you should keep in mind as a potential part of your discovery plan.