Electronically stored information and the law

At GotVoice, we spend some time asking our users how and why they use voicemail transcription and what the benefit is to them. I’m not a lawyer, myself, so none of the following observations should be taken as any kind of legal advice. Interestingly, some of GotVoice’s most enthusiastic clients are lawyers, and from our conversations, they report that the ability to preserving voicemail messages, both in text and as easy-to-retrieve .wav attachements for archive purposes, is handy in their profession.

In terms of professional archiving, of course, that makes sense for a lawyer as much as for anyone else; it’s always a good idea to keep searchable records for future reference. However, our legal users’ enthusiasm begs the question of how the legal system itself will be adapting to new technologies that are available for preserving communication in a variety of formats. Voicemail transcription, of course, is one technology, but there have also been cases recently when a burglar was caught when he logged in to Facebook from the house he was robbing, and another where a defendant used Twitter as an alibi against a burglary charge.

In terms of voicemail, at least, Farrah Pepper has written an in-depth article for Law.com answering the question of what to do with “outlier” electronically stored information (ESI) such as voicemail. Her post is heavy on the legal language but fascinating, in particular with respect to voicemail:

Audio recordings, including voice mail systems. While no obligation has been articulated for parties to proactively record relevant conversations for litigation,[FOOTNOTE 16] courts have ordered the production of preexisting relevant voice recordings and sanctioned parties for destroying them.[FOOTNOTE 17] Voice mail systems are considered to be sources of discoverable ESI, whether they are in analog or digital form.[FOOTNOTE 18] Notably, emerging voice mail technology offers unified messaging systems which integrate telephony and computer systems. In certain systems, recipients receive emails notifying them of an incoming voice mail that may also attach the voice mail as a WAV audio file, thus creating additional forms of voice mail messages.[FOOTNOTE 19]

The takeaway here, at least for non-legal-types like myself, is  that “voice mail systems are considered to be sources of discoverable ESI.” This is good news for those with a need to document their processes for later referral or even in court–now there is another layer of documentation available to establish both the nature of the communication itself and a communication timeline. Even if, as she states, there isn’t a specific legal obligation to do so, many organizations and individuals are choosing to protect themselves by keeping searchable records of all correspondence, including voicemail.

What’s your take on this? Do you use voicemail transcription as searchable documentation, or is it just the convenience factor that is appealing?