Voicemail, Web Conferences and Beyond

Sound recordings have corporate counsel asking questions. With aural data on the rise, and thanks to the recently revised Federal Rules of Civil Procedure (“FRCP”), properly addressing these queries can be ' and will be ' the difference between winning and losing a case. Corporate counsel must be able to master how audio files operate since they play a pivotal role within the recent court-created electronic data explosion that is electronically stored information (“ESI”).

Audio files are, in short, digitized voice recordings and have become ubiquitous with modern business. Common examples are .wav files of recorded customer service conversations, Web conferences and, of course, voicemail. These previously untouched pieces of evidence are now fully discoverable under the FRCP Rule 34(a), and respective case law, and are truly making their mark on contemporary ESI in ways previously unimagined. Sound recordings now unmistakably fall under the same constraints to pinpoint process and disclose as do other permutations of ESI.

Many corporate attorneys have surely questioned if their time is best spent learning the ins and outs of audio technology. For those who believe that this topic is not relevant, consider this. With the proliferation of business Unified Messaging System (“UMS”) configuration options, e-mail and even text messages are discoverable evidence on a business' computer desktops and servers. In addition, this now includes voicemail and VOIP because with a UMS system voice messages are transformed into .wav attachments to the actual e-mail itself. Corporate counsel who do not understand the breadth of the sound recordings in their company will surely be left behind.

Consequences and Challenges of the New Audio eDiscovery Regime

With FRCP Rule 34(a) now positively categorizing “sound recordings” as ESI, eDiscovery will increasingly include audio data as well. As a consequence there will be additional volumes of ESI along with further issues that relate to the duplication and de-duplication of data. Furthermore, the scope of aural file configurations is likely to cause additional headaches. The conventional techniques of evaluating audio files, which traditionally has been listening and then manual transcription, are not suitable to the objective of managing these extra silos of data because they are both not practically scalable to take on a large quantity of files and are just plain expensive.

Corporate counsel will stumble upon similar challenges that would occur in ordinary e-mail-based electronic discovery. Common hurdles will revolve around increased volume. This is because business users will save multiple audio versions that are not under the direct control of company. Furthermore, similar to email, a business' voice messaging system can be categorized as relevant ESI and accordingly subject to a court's litigation hold order.

Step One: Education, Education, Education

The corporate attorney needs to first get a handle on the four conventional ways of managing sound recordings: transcription by hand, phonetic search, listening and computer driven transcription. Manual transcription and listening are the most common methods utilized because speech-to-text is not adequately precise enough to fabricate predictable results. Even so, there are pitfalls. Manual transcription will not scale to properly handle large amounts of data and listening lacks the ability to execute searches without re-listening to the soundtrack for each new search. Nonetheless, manual audio transcription remains a popular route particularly for criminal taped proceedings and in cases where a tape recorder is used because a court reporter was not able to be present to tape the testimony.

Furthermore, both methods can be costly as contract attorneys and paralegals are employed for the first pass review and then the attorneys on the case listen in to deduce all potentially relevant recordings to render legal determination as to their usage in court. Since all of the hours involved invariably will add up corporate counsel must educate themselves as to the above options and determine the route that makes the most sense.

How Can I Make Sure My Legal Team Is on Board?

The contemporary age of businesses enacting benchmarks to meet compliance standards arose barely six years ago with the passage of the Sarbanes-Oxley Act. Substantial headway in this arena has been the spike in the usage of technology to promote and develop corporate records management programs and, as mentioned above, the relatively recent modifications to the FRCP that address the ramifications of ESI. These new regulations have caused corporate counsel to increasingly focus their legal departments' attention on business activities that may have legal repercussions, such as eDiscovery, even if this means running up legal expenses. Frequently overlooked by corporate legal departments is the simple fact that sound recordings are part of modern discovery environs. Corporate counsel must set the tone by notifying their staff and implementing a systematic way of accounting for all company audio files.

Next, in-house legal departments must be ready to perform discovery on these audio files to the extent they do for other paper or electronic documents. This means requesting and producing all discoverable sound recordings. Be sure to recover all accessible audio files that include voicemail and UMS Systems that synchronize voicemail with e-mail such as Web and video phones, which are becoming ever more popular. In addition, corporate counsel must be prepared to dedicate departmental resources to the traditional ways for managing sound files, such as manual recording or truly listening to the audio sounds, if necessary as they may be essential to trial. Corporate counsel should also have their team keep an eye out for audio formats that are proprietary, such as third party data centers, as they may be difficult to admit as evidence.

Finally, in-house counsel need to have their departments understand the notion that although one of the aspirations of the recent FRCP amendments was to have ESI processed in a format reasonably usable, the time and expense necessary to alter a huge quantity of data may be quite high. Have your department realize that they can expect to grapple with this dilemma when dealing with the production and analysis of digitized audio files as well. Fortunately, there are new tools and tactics, as mentioned below, that make it viable to work with audio recordings.

Best Practices for Dealing with Sound Recordings

To start, corporate counsel must maximize technology advances that permit latent phonemes or fundamental aural mechanisms of the sound files. This method has proven to be the most effective way of dealing with computerized audio files because phonetic searches of audio files can take up to 60 times the amount of time that actual transcribing and listening would have taken. This considerable decrease in time does indeed make it possible to swiftly and effortlessly process thousands of hours of recordings. In addition, this method provides rapid searches of the phonetic indices produced by the processing software. With the ever-increasing variations of UMS in digitizing and delivering messages, usually .wav files, to user mailboxes, phonetic searches take on the additional importance of preventing any violation of the discovery obligations under the FRCP to these added forms of data.

After the technology has been selected, corporate counsel should seek an eDiscovery platform that is able to review native documents that are not just paper equivalents. Rather, the platform must be able to directly enable review of any file, electronic, digital, and audio or otherwise that is in common usage in today's business. Be sure that the platform can efficiently and precisely support voicemail, audio archives from business call logging systems and Web conferences as audio evidence. Companies that ordinarily and routinely record conversations with business associates and clients might have massive amounts of discoverable ESI recordings. These audio files must be kept, preserved, produced and made searchable just as well by the proper eDiscovery platform to minimize errors of judgment brought about by fatigue.

Then, when all is said and done, corporate counsel must be proactive and take the lead. This means that corporate counsel will be responsible for listening to all audio recordings to determine their relevancy. By doing so, the sound recordings will thus either be deemed eligible or ineligible to be produced at trial or utilized for internal compliance measures. Throughout this process corporate counsel should conduct preliminary searches, specify the subject matter and set priorities for the most urgent audio records. This will allow corporate counsel to spend less time combing over irrelevant information while maximizing their time listening to the pertinent data.

Conclusion

With the recent rise in sound recordings as admissible ESI it is paramount that businesses put procedures in place to ensure that all company aural files satisfy relevant compliance regulations and can be accounted for when litigation is reasonable expected. For each aforementioned scenario the objectives for corporate counsel are the same. Namely, corporate counsel must pinpoint, review and then produce digitized audio files in a manner that is cost effective, accurate and swift.

The chief hurdles likely to be encountered along this path by corporate counsel are the plethora of voice recordings, the challenges of searching through them and the assortment of audio technologies out there to select from. With sound technologies constantly updating corporate counsel must wrestle with the new requisites and be proactive when searching, processing and producing sound recordings.

Without a doubt, discovery of audio files is now a part of the modern ESI environment and is here to stay. Corporate counsel must comprehend how sound technologies work and how data can vanish in the absence of proper safeguarding. Knowing what is at stake always helps. To assess totalities corporate counsel should start by asking themselves if they have a working knowledge of their company's audio technologies along with how they are stored and managed. Only by intellectually engaging audio technologies and their practical effects will the corporate attorney be able to create a defendable strategy for dealing with their company's sound recordings at trial.

Michael Swarz is an attorney working for eClaris, Inc., a Los Angeles based e-discovery consulting firm dedicated to helping law firms and corporations classify, process and review electronically stored data. He can be reached at [email protected] or through www.eclaris.com.

Sound recordings have corporate counsel asking questions. With aural data on the rise, and thanks to the recently revised Federal Rules of Civil Procedure (“FRCP”), properly addressing these queries can be ' and will be ' the difference between winning and losing a case. Corporate counsel must be able to master how audio files operate since they play a pivotal role within the recent court-created electronic data explosion that is electronically stored information (“ESI”).

Audio files are, in short, digitized voice recordings and have become ubiquitous with modern business. Common examples are .wav files of recorded customer service conversations, Web conferences and, of course, voicemail. These previously untouched pieces of evidence are now fully discoverable under the FRCP Rule 34(a), and respective case law, and are truly making their mark on contemporary ESI in ways previously unimagined. Sound recordings now unmistakably fall under the same constraints to pinpoint process and disclose as do other permutations of ESI.

Many corporate attorneys have surely questioned if their time is best spent learning the ins and outs of audio technology. For those who believe that this topic is not relevant, consider this. With the proliferation of business Unified Messaging System (“UMS”) configuration options, e-mail and even text messages are discoverable evidence on a business' computer desktops and servers. In addition, this now includes voicemail and VOIP because with a UMS system voice messages are transformed into .wav attachments to the actual e-mail itself. Corporate counsel who do not understand the breadth of the sound recordings in their company will surely be left behind.

Consequences and Challenges of the New Audio eDiscovery Regime

With FRCP Rule 34(a) now positively categorizing “sound recordings” as ESI, eDiscovery will increasingly include audio data as well. As a consequence there will be additional volumes of ESI along with further issues that relate to the duplication and de-duplication of data. Furthermore, the scope of aural file configurations is likely to cause additional headaches. The conventional techniques of evaluating audio files, which traditionally has been listening and then manual transcription, are not suitable to the objective of managing these extra silos of data because they are both not practically scalable to take on a large quantity of files and are just plain expensive.

Corporate counsel will stumble upon similar challenges that would occur in ordinary e-mail-based electronic discovery. Common hurdles will revolve around increased volume. This is because business users will save multiple audio versions that are not under the direct control of company. Furthermore, similar to email, a business' voice messaging system can be categorized as relevant ESI and accordingly subject to a court's litigation hold order.

Step One: Education, Education, Education

The corporate attorney needs to first get a handle on the four conventional ways of managing sound recordings: transcription by hand, phonetic search, listening and computer driven transcription. Manual transcription and listening are the most common methods utilized because speech-to-text is not adequately precise enough to fabricate predictable results. Even so, there are pitfalls. Manual transcription will not scale to properly handle large amounts of data and listening lacks the ability to execute searches without re-listening to the soundtrack for each new search. Nonetheless, manual audio transcription remains a popular route particularly for criminal taped proceedings and in cases where a tape recorder is used because a court reporter was not able to be present to tape the testimony.

Furthermore, both methods can be costly as contract attorneys and paralegals are employed for the first pass review and then the attorneys on the case listen in to deduce all potentially relevant recordings to render legal determination as to their usage in court. Since all of the hours involved invariably will add up corporate counsel must educate themselves as to the above options and determine the route that makes the most sense.

How Can I Make Sure My Legal Team Is on Board?

The contemporary age of businesses enacting benchmarks to meet compliance standards arose barely six years ago with the passage of the Sarbanes-Oxley Act. Substantial headway in this arena has been the spike in the usage of technology to promote and develop corporate records management programs and, as mentioned above, the relatively recent modifications to the FRCP that address the ramifications of ESI. These new regulations have caused corporate counsel to increasingly focus their legal departments' attention on business activities that may have legal repercussions, such as eDiscovery, even if this means running up legal expenses. Frequently overlooked by corporate legal departments is the simple fact that sound recordings are part of modern discovery environs. Corporate counsel must set the tone by notifying their staff and implementing a systematic way of accounting for all company audio files.

Next, in-house legal departments must be ready to perform discovery on these audio files to the extent they do for other paper or electronic documents. This means requesting and producing all discoverable sound recordings. Be sure to recover all accessible audio files that include voicemail and UMS Systems that synchronize voicemail with e-mail such as Web and video phones, which are becoming ever more popular. In addition, corporate counsel must be prepared to dedicate departmental resources to the traditional ways for managing sound files, such as manual recording or truly listening to the audio sounds, if necessary as they may be essential to trial. Corporate counsel should also have their team keep an eye out for audio formats that are proprietary, such as third party data centers, as they may be difficult to admit as evidence.

Finally, in-house counsel need to have their departments understand the notion that although one of the aspirations of the recent FRCP amendments was to have ESI processed in a format reasonably usable, the time and expense necessary to alter a huge quantity of data may be quite high. Have your department realize that they can expect to grapple with this dilemma when dealing with the production and analysis of digitized audio files as well. Fortunately, there are new tools and tactics, as mentioned below, that make it viable to work with audio recordings.

Best Practices for Dealing with Sound Recordings

To start, corporate counsel must maximize technology advances that permit latent phonemes or fundamental aural mechanisms of the sound files. This method has proven to be the most effective way of dealing with computerized audio files because phonetic searches of audio files can take up to 60 times the amount of time that actual transcribing and listening would have taken. This considerable decrease in time does indeed make it possible to swiftly and effortlessly process thousands of hours of recordings. In addition, this method provides rapid searches of the phonetic indices produced by the processing software. With the ever-increasing variations of UMS in digitizing and delivering messages, usually .wav files, to user mailboxes, phonetic searches take on the additional importance of preventing any violation of the discovery obligations under the FRCP to these added forms of data.

After the technology has been selected, corporate counsel should seek an eDiscovery platform that is able to review native documents that are not just paper equivalents. Rather, the platform must be able to directly enable review of any file, electronic, digital, and audio or otherwise that is in common usage in today's business. Be sure that the platform can efficiently and precisely support voicemail, audio archives from business call logging systems and Web conferences as audio evidence. Companies that ordinarily and routinely record conversations with business associates and clients might have massive amounts of discoverable ESI recordings. These audio files must be kept, preserved, produced and made searchable just as well by the proper eDiscovery platform to minimize errors of judgment brought about by fatigue.

Then, when all is said and done, corporate counsel must be proactive and take the lead. This means that corporate counsel will be responsible for listening to all audio recordings to determine their relevancy. By doing so, the sound recordings will thus either be deemed eligible or ineligible to be produced at trial or utilized for internal compliance measures. Throughout this process corporate counsel should conduct preliminary searches, specify the subject matter and set priorities for the most urgent audio records. This will allow corporate counsel to spend less time combing over irrelevant information while maximizing their time listening to the pertinent data.

Conclusion

With the recent rise in sound recordings as admissible ESI it is paramount that businesses put procedures in place to ensure that all company aural files satisfy relevant compliance regulations and can be accounted for when litigation is reasonable expected. For each aforementioned scenario the objectives for corporate counsel are the same. Namely, corporate counsel must pinpoint, review and then produce digitized audio files in a manner that is cost effective, accurate and swift.

The chief hurdles likely to be encountered along this path by corporate counsel are the plethora of voice recordings, the challenges of searching through them and the assortment of audio technologies out there to select from. With sound technologies constantly updating corporate counsel must wrestle with the new requisites and be proactive when searching, processing and producing sound recordings.

Without a doubt, discovery of audio files is now a part of the modern ESI environment and is here to stay. Corporate counsel must comprehend how sound technologies work and how data can vanish in the absence of proper safeguarding. Knowing what is at stake always helps. To assess totalities corporate counsel should start by asking themselves if they have a working knowledge of their company's audio technologies along with how they are stored and managed. Only by intellectually engaging audio technologies and their practical effects will the corporate attorney be able to create a defendable strategy for dealing with their company's sound recordings at trial.

Michael Swarz is an attorney working for eClaris, Inc., a Los Angeles based e-discovery consulting firm dedicated to helping law firms and corporations classify, process and review electronically stored data. He can be reached at [email protected] or through www.eclaris.com.