The definition of e-discovery from Whatis.com is:
Electronic discovery (also called e-discovery or eDiscovery) refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. E-discovery can be carried out offline on a particular computer or it can be done in a network. Court-ordered or government sanctioned hacking for the purpose of obtaining critical evidence is also a type of e-discovery.
The New York Law Journal published a long article, "VoIP Telephony: Keeping a Lid on Pandora's Box", June 30, 2008, by Michael Cukor and Thomas R. DeSimone. The article posed the question, "How will the adoption of this new technology [VoIP] affect our e-discovery obligations?" The first point made in the article is that lawyers need to understand how VoIP works and the ramifications for storage, archiving and retrieval. In this post, I'll discuss what e-discovery means to the IT and communications managers.
Records are to be provided in civil and criminal cases, and a voice mail is an electronically stored record. E-discovery rules cover electronically stored communications. The conversations stored at a call center for analyzing customer agent support are also electronically stored. A typical scenario is the recording of customer complaints that may be part of some legal action in the future. Finding the complaints among all the telephone conversations stored can be an expensive headache. E-mails can be scanned by text to filter out the required documents. Searching voice conversations will be more difficult.
VoIP voicemails may be stored as part of a Unified Messaging (UM) system as a .wav file in the recipient's e-mail inbox. UM systems have been implemented for years, but the UM vendors have not typically developed their products with an eye toward meeting court requirements. When a .wav file is reviewed and deleted, the .wav file will most likely continue to be stored on an enterprise backup server just the same as a deleted e-mail message. The voice mail will have a much longer life than anticipated.
The New York Law Journal article states,
Without proper planning, a client or company may be faced with hundreds or even thousands of hours of audio data that cannot be easily parsed if production is required. This situation poses a significant problem in light of recent amendments to the Federal Rules of Civil Procedure that expressly define "sound recordings" as "electronically stored information" and impose new requirements for disclosure, case management, planning, and form of production of all electronically stored information.
So what happens if the enterprise is not prepared to deliver the voice mails and voice recordings? Two cases were cited in the article. The first was a court decision concerning Qualcomm, Inc. in a case vs. Broadcom Corp. The Law Journal stated that:
The California district court found that counsel for Qualcomm failed to produce approximately 46,000 relevant e-mails during the course of litigation. As a result of their failure to produce these documents, the California district court imposed sanctions on several of the attorneys representing Qualcomm, and referred the sanctioned attorneys to the California State Bar. The California district court also sanctioned Qualcomm itself for its failure to produce the e-mails.
The second case of Peskoff vs. Faber in the U.S. District Court for the District of Columbia found that the defendant's e-mail searches were not sufficient for the case. The court required that proposals be submitted for forensic computer consultants to examine the defendant's enterprise computers.
The conclusion of the Law Journal authors is that "it is important to prepare for the possibility that a court will demand that all relevant VoIP-generated electronically stored information be produced. The production and review of audio files is far more complex and time-consuming than simply locating and printing out a series of e-mails."
I am not a lawyer nor do I guarantee that the e-discovery process will be easy. It will probably become more complex as time goes on and more court cases determine the responsibilities of plaintiffs, defendants and their legal counsels. My next blog, "Planning for VoIP E-Discovery" will provide tips on coping with and planning for the e-discovery process when VoIP is deployed.
