Unified Message Systems Will Expand Voice Recording Discovery

May 2007

Previously, voice mail has rarely been of interest because litigants concluded that the likelihood of getting useful information was not worth the discovery cost. This has occurred because of widespread system limitations that have made audio discovery less fruitful than other electronic discovery. These limitations include:

1. Older voice mail systems are outfitted with far less storage. Most systems allow users limited storage, and encourage/require users to delete messages older that a prescribed period. Consequently, most voice mail systems contain less data.

2. Unlike emails, untranscribed voice mails are generally not spread to outside organizations. In practice, those sending the voice mails do not keep a copy, and the storage on the receiving end is not usually backed up with the same rigor as email systems, if at all.

3. Most voice mails store little metadata.

Discovery rules require audio to be produced, so discovery will occur once parties decide that it is worth their time.

Why Discovery of Voice Recordings Will Increase

Litigators have plenty of reason to increase their use of recorded messages. Like email, voice mails are often treated casually and off-the-cuff, allowing damning evidence to be recorded. Voicemails convey tone, urgency, and demeanor more effectively than emails or other text. A witness is less likely to be able to diminish the impact of his own voice. For example, Alec Baldwin’s recent enraged voice mail message to his daughter aptly demonstrates the power of a recorded message.

Discovery of voice recordings will become more widespread in litigation for two important reasons:

1. Email and voice mail systems are converging rapidly. Email can now be retrieved via voice mail, and voice mails can be sent via email. The integrated storage means that the previous voice mail system limitations described above will be replaced with greatly increased storage that occurs with email systems.

2. Most older email systems do not have the capability of easily indexing and retrieving the native electronic files. Newer systems have greater functionality.

Better Transcription Technology is Needed

Audio files are usually recorded as .WAV files, which can be played on practically any computer. .WAV files can be archived and secured like any other file. Nevertheless, sound recordings are costly and time consuming to review and produce. Here is why:

1. Production typically involves actively listening to each file. Unlike text-based data, search routines cannot rapidly identify responsive files.

2. Once identified, most litigants convert responsive native audio to a text-based version so that the evidence can be treated like other text documents. This translation is expensive on a per-document basis.

A problem with this approach occurs once a follow-on or second request is made. Then, the active listening step (#1 above) must be repeated. This causes some litigants to transcribe all messages at the start, although this comes with an obvious high cost and time requirement.

Although speech conversion software exists, such systems are generally not sufficiently reliable, particularly when dealing with heavy accents, dialects, or background noise. A manual clean-up of the computer-generated transcript generally eliminates whatever savings might have otherwise occurred by using the automated approach.

These problems make it easy to argue that voice mail files are not readily accessible for purposes of evaluating who should bear the cost of the electronic production. The notes to the new Federal Rules of Civil Procedure for electronic evidence invite the responding party to include review cost (such as those described above) as a cost-shifting factor.

Include Audio in Your Litigation Hold

Affirmative litigation holds are particularly critical for audio files. This occurs because most voice mail systems (particularly the older ones) automatically eliminate messages after a specified period. The new amendments (as of December 2006) to the Federal Rules of Civil Procedure make clear that electronic data is subject to discovery if it is relevant and not burdensome to produce. Courts are more frequently sanctioning parties who are not retaining and producing relevant material.

Unified message systems and hosted web conferencing systems cut across all industries. Some industries, such as financial trading firms, have mandated retention requirements of audio information. Customer service departments and help desks also routinely record calls (remember all the times you heard while waiting on hold, “This call may be monitored for quality purposes”?). Like all electronic discovery, knowing what your opponent records and keeps is important when creating your discovery plan.

Sound recordings have generally not received much litigation attention. This will change. Smart litigators will include audio recordings in their litigation hold demands, will inquire about their client’s voice mail and other sound recording systems, and will include sound recordings in their discovery plans.


Fulcrum Inquiry performs electronic discovery, computer forensics, and analysis of computerized data.