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 Associations 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.