• The Hidden Discovery Danger in Uniform Messaging
  • July 28, 2004
  • Law Firm: Pepper Hamilton LLP - Philadelphia Office
  • Telecommunication advancements offer benefits and raise potential legal issues for businesses. One of the new technological advancements that is likely to reduce transaction costs, but also increase discoverable material, is Uniform Messaging (UM) systems.

    By integrating all of a company's existing communication devices, UM systems offer the possibility of solving that maddening problem of missing an important message in the shuffle of voice mail, e-mail or fax, one of which you invariably forgot to check. The UM server acts as the central repository for all voice mail from the telephone systems as well as data from fax and e-mails. The server then provides centralized access for all of the information stored on these various mediums. The user would be able to access all of this information through a single instrument, such as a laptop, hand-held device or cell phone.

    Any company considering upgrading to a UM system also should update its record retention policies to reflect the new capability to store voice mail messages in easily accessible digital format. Without an effective policy, your company could learn to its chagrin that a treasure trove of new discoverable material is available.

    How UM Works

    With a UM system, you can arrive at your office in the morning and access your voice mail in digital text the same way you view your e-mail. If you are on the road, text-to-speech technology would allow you to hear your e-mail read to you through your cell phone. You also would have the ability to command the system to read just the subject lines or the whole message of the e-mails.

    The allure of UM systems is increased convenience and employee efficiency. Some authorities estimate that UM could cut the time for retrieval of faxes, e-mails and voice mails in half for office-based users. The savings for mobile workers or geographically spread workgroups can be even greater. Depending on the size of the company and the number of employees, UM could produce substantial savings in time and costs.

    But of course, these advances come with a price. Implementation of a UM system requires replacing existing hardware and software or adding middleware. In addition, many companies will need to train employees and encourage them to actively use the system to reap the benefits. The long-term savings in time and increased productivity must be weighed against the initial implementation costs. In the short term, UM systems are likely to be more popular with certain businesses -- such as large enterprises with geographically spread workgroups -- than with others.

    Voice Mail Discovery Made Easier?

    UM systems also pose potentially serious legal issues for companies and their lawyers. The most obvious is the impact UM systems will have on voice mail discovery. Voice mail has always been subject to discovery (and frequently has been critical in high-stakes litigation), but historically, voice mail has been difficult to obtain because the desired message usually was purged through routine system maintenance. Voice mail systems lacked the same long-term storage capacity of e-mail.

    But voice messages in digital format, like e-mail, can be stored indefinitely. Digital voice mails create the strong possibility that in the near future, a careless message may tip the balance in litigation. Increasingly, companies are likely to face discovery requests for digital voice messages as well as traditional information sources. And while technology is improving constantly, complying with onerous discovery requests for voice mail are extraordinarily time-consuming and costly, even with a UM system.

    As this new technology is implemented and improved, companies should:

    • ensure that their IT and telecommunications professionals understand the legal ramifications BEFORE purchasing/installing a UM system
    • update their record retention policies to reflect the new reality, and make sure employees are educated in compliance with the policies
    • create a plan to respond to discovery requests for digital voice mails, and conduct tests to determine how difficult it is to comply.

    While employees are slowly acclimating to the need for care in drafting e-mails, such awareness is absent for voice messages. As a result, companies also must be increasingly vigilant about educating employees to exercise care with all communication systems.