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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - email@example.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Monday, November 24, 2003
After the Tone... After the Tone, You Will Enter...The Next Frontier
OK, so we've successfully figured out how to discover the elusive e-mail, hidden excel spreadsheet and buried word processing document. We can yank out its metadata, extract its attachments in a method reminiscent of the Spanish Inquisition, view its interiors in a way that would make Paris Hilton blush. Uh huh, we can categorize these little fellas by relevance, privilege, production sub-set etc.... If the little bugger just doesn't want to budge, we can call in the forensic surgeons who can methodically and with great precision dissect each little sector, bit and byte of the stubborn e-data. Yep, we've whipped that piece of the puzzle into shape. We rule the e-data so now what's left to tackle?
Video Synchronized Depositions? Old hat.
Courtroom graphics? Paleeeeze! Can you say Christopher Darden circa 1994?
Hey, hows abouts imaging of paper? Like, the kid next door with the X-Box is already bored with imaging.
So what then?
Digital voicemail - the uncharted frontier. Even a Vulcan like Spock can't quite grasp this one yet.
The digital voice mail is the future of automated electronic litigation support. Think about it. If that smoking gun memo wasn't put into the word processor or shot off through Outlook and wasn't scribbled on a piece of paper that found its way into the filing cabinet, then where oh where could that damning communication live? Have you checked your messages today, pal?
As you probably are aware, voice mail today is a complex beast. Long gone are the days when we would rewind the cassette and record over our last three months of messages from spiteful ex girlfriends and United Way contribution solicitations. Today's voice mail is digital. The message is left, it is forwarded, stored, categorized, backed up onto servers and possibly even sent to text pagers.
What kinds of beasts live on these digital voice recordings? Well, if you look at some of the cases out there that have turned on voice mail messages, them fish are lunkers.
I'm not talking about the 911 recording that snagged so many insipid evildoers trying to create a diversion. That stuff has been on the Discovery Channel for years now... I'm talking about the:
Six million dollar settlement when a stock broker was recording dispensing some "very timely" investment tips to his buddy via his buddy's office vm.
Thirty-five million dollar patent infringement settlement when CFO and new employee just snatched away from the competition were discussing the possibility that new employee may have brought with him some "interesting source code."
A defense verdict when the plaintiff made an admission against interest on the voice mail of the defendant which completely negated the plaintiff's negligence cause of action.
The list goes on...
So you're probably thinking that this is all dandy, right?
Not quite so.
Voice mail discovery has its own set of problems. Principal is the fact that most digital voice messages are not "searchable." Granted, some very infant technologies exist which allow for sound matching querying but this field is at a pre TV Pong stage in an era of virtual reality Ninendo.
The hard truth remains that some unlucky human being must listen... yes actually listen to ALL of the captured digital voice data to try to capture that golden snippet of sound.
What about privilege?
Unfortunately, voice mail messages usually don't start like this:
"Hi Bill, this is Sally your attorney with whom you have an ongonig confidential and privileged relationship... let me tell you something that will be of extreme importance to the third prong of your defense."
Ain't that easy folks. It will take a specially trained ear to deduce who lives behind the voice. Is this the voice of the attorney? Sure about that? How can you be sure? If you can prove you are right, then maybe the court will exclude this evidence based on privilege. Is that the doctor calling the patient? Sure? Well if you can prove it then... you get the picture.
Further, what if the client speaks Mandarin or Tagalog? Who are we going to get to screen and evaluate those tapes?
These issues are just a few of many to ponder in an area that we as litigation support professionals and nerds will be hearing much, much more about.
posted by Alexander | 6:02 PM