Under Rule 34 (a) of the newly adopted amendments to the FRCP Rules, electronically stored information is now described as; "electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations stored in any medium from which information can be obtained - translated, if necessary, by the respondent into reasonably useable form, or to inspect, copy, test or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b)."

Voicemail as compared to e-mail in electronic discovery has rarely been an item of interest in the majority of production disputes. In discussions with large numbers of attorneys throughout the past few years, when we bring up voice mail messages as discoverable ESI, the majority of litigators are stumped as to why voice mail is not brought up in civil litigation.

Government investigators and trial lawyers alike are being trained on the retrieval of electronic data, including digitized voicemail. Odds are they will be able to get it. Digitized voicemail is a discoverable medium because the rules that govern discovery allow parties to request "data compilations." Under these rules, courts have ordered the production of relevant voicemail messages and files and have even required the producing party to identify all back-up files or archival tapes that would provide information about deleted data.

Plan to Act Now

Now, rather than when faced with a government subpoena or civil discovery request, is the time to plan your response to requests for voicemail records. Responding to these requests will be no small task. Unlike e-mail, voicemail programs typically do not have a built-in search capability. Messages cannot be scanned by the human eye for key words and phrases; each voice message must be listened to in its entirety in real time in order to determine if it contains relevant information. Planning ahead on how to respond to requests will benefit you in several ways.

* If you become involved in litigation, you will need to search your own voicemail database for messages to support your case because federal rules require mandatory disclosures of materials that a party intends to use to support its claims and defenses.

* A key admission from the other side may come in the form of a voicemail. If you do not locate and disclose the voicemail at the outset, you may be barred from using it to prove your case.

You may have an affirmative duty to maintain your voicemail records. Because digitized voicemail is discoverable, failing to maintain this data may constitute "spoliation" of evidence, meaning that if you fail to preserve key voicemail messages that your adversary claims are relevant, you may be barred from contradicting the evidence that your adversary claims was contained in the voicemail. Digitized voicemail messages may constitute "records" under federal and state statutory schemes, including the new Sarbanes-Oxley bill, that require companies to maintain records of certain activities for specific periods of time.

CyberControls, LLC is comprised of computer forensic specialists' and pretrial litigation consultants who are prepared to assist litigators in formulating effective e-discovery strategies that comply with the recently adopted FRCP Rules and the E-Discovery Guidelines for State Trial Courts in all jurisdictions.  We welcome the opportunity to discuss any specific issues that you may be facing as a respondent or requesting party in a commercial litigation matter at 847-756-4890 or visit our cyber site at www.cybercontrols.net.  You are also invited to write to us at cyberinfo@cybercontrols.net.
 
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