Digital Voicemail in E-Discovery -- or Dealing with Cerberus, the Three-Headed Dog from Hell

You have one new voice message. First message: Monday, 4:45pm --

I must have just missed you, Vice President Joe.
It's Mike van Dyke, your CEO.
Remember that complicated widget invention --
Our best-seller you copied from the Widget Convention?
The one in your job interview that you mentioned,
And stole from your last boss for withholding your pension?

Well, they've sued us for patent infringement and such,
And theft of trade secrets -- it's really too much.
So I need you to shred all the documentation:
The tech drawings you stole; design specifications.
And that memo you wrote, before everything,
Saying that they had a patent, worth copying.

And yes, it goes without saying, too, Joe --
Please immediately delete this voicemail also.

End of new messages.

A lawyer who finds a copy of this voicemail buried in the other side's electronic document production will immediately splurge on champagne and party hats. And who can blame him? But here's the question: would this message be captured in the net of responsive material, or would it slip through the cracks? The answer may depend less on the skill of document retrieval experts, and more on how your company (or client's) voicemail system works.

It's old news that voicemail systems have graduated from analog to digital. Now, while the self-contained answering machine is still around, the digital era has also ushered in various types of integrated systems. The most complex, like the famed mythological dog Cerberus guarding the gates of Hell to prevent the dead who cross the river Styx from escaping, have three heads: the company telephone system, e-mail system, and computer system. And while a message on a self-contained machine can be difficult for a company -- let's call it Hades, Inc. -- to track and easy for an individual employee to get rid of, life with Cerberus is akin to life in the underworld: there is no escape, and nowhere to hide.
 

There are four major types of digital voicemail systems, as discussed in a New York Law Journal article:

  1. The Stand-alone: Voicemail is stored only on a stand-alone voicemail server completely separate from the e-mail and computer servers.
     
  2. The Stand-alone with E-mail Notification: This is a stand-alone model with an e-mail alert that notifies users that they have received a voicemail. However, the alert says nothing substantive about the message, and the user cannot access, save or forward the message via computer or e-mail.
     
  3. The Stand-alone with E-mail Link: Here, the e-mail contains not just a notification but a "link" that allows the user to access the message by computer. While the message remains housed in the voicemail server, it is possible to copy it to the e-mail system as an audio (.WAV) file, and save or forward them as attachments.
     
  4. The Unified System -- "Cerberus": With Cerberus standing guard, users receive an e-mail containing the audio file, and can retrieve it on a computer or Blackberry-type device. The message is stored on the e-mail server (not the voicemail server), and is thus exposed to the search protocols undertaken on the company's computer and e-mail systems. A user can also easily save the message or forward it to others, creating multiple copies in different locations and making it more likely that the message will be found. Such messages are also fully subject to Hades Inc's e-mail protocols with regard to back-ups and auto-deletion, which usually call for a greater retention period than a voicemail server.

As the systems move further and further Cerberus-ward down the river Styx, a number of things happen: (1) the amount of control a company has over the deletion and dissemination of voicemails declines; (2) the number of e-crumbs left by the voicemail increases, magnifying the risk of messages such as Vice President Joe's being found and produced to the opposition; and (3) the costs of voicemail-related e-discovery increases.

On the stand-alone end of the spectrum, Hades, Inc. will retain the most control over voicemails, and the risk of eventual production is the lowest. There is only one copy, and it resides on a stand-alone server. It cannot be replicated, forwarded, saved onto a computer or disseminated in any other way. Because of that, the single copy is at the mercy of the user's decision to delete it, or Hades, Inc's auto-deletion policy that spirits messages to the underworld permanently once a specific amount of time has passed. Once deleted, that message is gone, lost in Hades without a trace.

Even if there is no auto-deletion and Vice President Joe accidentally forgets (oops!) to erase the message, the message and others like it may still very well not be found during discovery. The voicemail server is not be connected to Hades, Inc.'s computer or e-mail servers, which are searched much more extensively during litigation (courts are reluctant to order expansive searches of voicemail alone). So the only reason such messages would be found and produced is if voicemails are included in document requests and if the recipient, such as our Vice President Joe, were singled out as one of the key custodians whose collection of data and documents are being searched for responsive materials.

In the case of a stand-alone system with a simple e-mail notification, Hades, Inc. is still in the lower-risk end of the production spectrum. The difference is that a trace of the voicemail remains, deleted or not. The e-mail notification will likely be retained as part of the litigation hold, and may even be produced if it engenders a "hit" during the search protocol. The odds of this are not high, as search terms related to the case will usually not appear in a simple notification e-mail, which does not contain any information about the message's sender or content. However, even if the message is deleted, a search and production of Hades, Inc. e-mails to the opposition may still reveal that Vice President Joe received a voicemail on Monday at 4:45pm on such-and-such a date, which opposing counsel will recognize was right after the complaint was served. Naturally, they will demand production of the voicemail. And if that voicemail has been deleted, there will be hell to pay, faster than Charon can row that ferry across the river Styx. The other side will likely make trouble, such as asking for sanctions, for a more detailed search of Hades, Inc. voicemails, or for an inference at trial that the e-mail must have contained something incriminating.

The third type of system is where it begins to become much more likely that Vice President Joe's voicemail and others like it will be found and produced, or at the least that its existence and subsequent deletion will be noticed. In this case the voicemail is still stored on the voicemail server, but the e-mail notification contains a link to the message. In some cases, the link can be converted into a file that can then be saved on the Hades, Inc. computer or forwarded through e-mail accounts -- say, vpjoe@hades.underworld.com. With all this data floating around with information on the sender and content of the message, production in one form or another becomes much more likely. Even if the original message has been deleted, it has left a trail of e-crumbs -- there are that many more e-mails and copies and files floating around that either contain the message itself, or that make it evident that a message used to be there.

Which leads us to Cerberus, our three-headed monster. Yes, dogs are a man's best friend, and Cerberus may well be the user's best friend, allowing the greatest degree of access to voicemail -- through computer, Blackberry or otherwise -- and the greatest degree of malleability in terms of saving, copying and forwarding the message. With Cerberus, however, the control Hades, Inc. has over these messages is extremely low. The voicemails leave an awful lot of e-crumbs, posing the greatest risk of production in litigation. The message itself will reside in the user's e-mail inbox, may be saved to person folders or hard drives, and can be copied and sent to others ad nauseam. The e-mails will also contain more easily-searchable information than links or e-mail notifications, such as the name of the sender, the originating phone number and the contents of the message. And courts are more likely to treat voicemails in these types of systems like e-mails -- subject to greater obligations insofar as identification, preservation and production. All of these facts will not only increase the cost of e-discovery substantially, but transform the odds of Vice President Joe and his voicemail going down in flames.

What does all this mean? For a company on the defensive side such as Hades, Inc., it is important to understand just what type of voicemail system is being used. While Cerberus is certainly the most technologically-savvy and user-convenient, he is also the messiest eater, leaving far more e-crumbs in his wake than, say, stand-alone voicemail servers. Companies who use Cerberus to guard the gates of voicemail should therefore educate their employees to treat messages more carefully on both the sender and recipient sides. Keep voicemails short and general, think before speaking as to whether the message being left could cause trouble in a litigation, and do not wax poetic (literally or figuratively) about litigation or other controversial matters like our foolish Hades, Inc. CEO Mike van Dyke. Another possibility is shortening the company voicemail retention period to the extent legally permissible, so that the backlog of saved voicemails is not as daunting and not as much of a field day for the other side.

On the offensive side, parties to a litigation should ensure that litigation hold notices, and instructions for document requests, specifically request responsive and relevant voicemail messages. They should also keep an eye out for e-mails produced in discovery that reveal the existence of relevant voicemails that were not produced.  Additionally, parties believing that voicemail will play a key role in the case should request early on in discovery, information as to what type of voicemail system their opponent maintains. That way, they can be more aware of how best to ensure that Vice President Joe's voicemail will escape the watchful eye of Cerberus, cross the river Styx, and get produced.