As most IT professionals already know, courtesy of the Federal Rules of Civil Procedure Rule 34(a), audio files are now fully discoverable. This has led many IT professionals to create and implement procedures that will record and store telephonic conversations and other electronic interactions originating from and connected to their company client orders. These new protocols specifically address sound content from call desks, trading desks, phone systems and, of course, VoIP. IT professionals have enacted these procedures in an effort to keep up with one of the newest trends in mainstream e-discovery: sound recordings.
HOW AUDIO E-DISCOVERY AFFECTS IT
The necessity for IT professionals to haul audio recordings into their general e-discovery process is gaining awareness because of situations that may -- at first glance -- appear harmless. Think about scenarios where a company employee is having a phone dialogue with a customer and at the same time sending e-mails to another. This may seem innocuous on the surface; the two interactions seem separate and unconnected with no suggestion of any illegality.
However, if one pays attention to the audio in the milieu of the e-mail exchange, it may paint an absolutely different picture. In reality, the entire picture may demonstrate that the company employee was using the data received from the person with whom he or she was exchanging instant messages or e-mails to his or her advantage when speaking with the other customer on the phone. Nevertheless, connecting these two actions together is nearly impossible via conducting a discovery of solely written messages. IT professionals are now tasked with bridging this gap by creating an integrated business information system that will account for all business written and audio content.
Failure by IT professionals to enact such an integrated data management system can be fatal. The absence of a viable, synchronized information protocol results in businesses pursuing various recording discovery procedures that are distinct from the ordinary chain of custody mandate. Consequently, sound recordings and e-mails are not tagged in a similar fashion, and there is no method to directly connect them to one another. Furthermore, the ability to fashion a timeline as to when these exchanges happened becomes more complicated for IT professionals to generate. This in turn leaves in-house counsel at a palpable loss and incapable of viewing the interconnectedness between the diverse messages.
KEY TECHNICAL CONSIDERATIONS
For IT professionals, there is good news. Sound discovery technologies are now addressing some of the restrictions with transcription and listening reviews, which are pivotal to implementing the correct company audio regime. Gone are the requisites of having the entire data set transcribed or listening to endless hours of audio files. As an alternative, audio discovery technologies are instead making sound recordings effortlessly searchable in a swift and cost-efficient manner. New technology can break down audio files into phonemes, the tiniest component of communication. Post processing, the sound files can be uploaded by IT professionals to online review software platforms.
A team of reviewers can then maximize the online software to travel through hours of sound recordings seeking particular phrases and words. The team can skip to specific sections of the sound recordings for listening purposes. Companies will benefit from the online software because they will be able to target and categorize documents as responsive and privileged. If required, IT professionals can engage an audio e-discovery service provider to furnish a team to deal with the native audio files. This technology also works well for audio sections of video-based files.
This know-how to digitally record language is progressing every day, making aural data more similar to regular file data and e-mail. As an example, voice recording and digitized phone systems normally store voice-mail recordings as digital sound files. When checking for quality control, IT professionals will experience the upside of these digitally recorded voice conversations, especially when dealing with corporate call centers, which tend to contain an enormous amount of sound recordings.
Furthermore, voice mail and e-mail systems are starting to synchronize more often. This means that voice mail is now being sent to recipients via e-mail, and e-mail is increasingly being accessed by phone. IT professionals must deal with company voice-mail systems that are used to send and store voice mail through a centralized computer system that translates the sounds into digital bytes. As such, what started off as a voice-mail message just may end up as an e-mail file or an e-mail attachment. Companies are rapidly embracing Unified Messaging Systems to create the centralized system mentioned above.
Finally, since the majority of phone and audio recording systems are based on some adaptation of a standard computer operating system, it is likely businesses will be able to harvest raw data from a modern audio recording system. The sensible course for IT professionals to follow is to treat audio recordings like other discoverable ESI such as e-mail..
AUDIO DISCOVERY OPTIONS
Step one for the IT professional is simply being aware of the sound recording universe. Audio recordings can take the shape of many file formats, ranging from AIF to MP3 to the ever-popular WAV -- and beyond. These sound files can be manipulated, copied and saved, just like other electronic data. There are some audio archiving technologies that may also add metadata to sound recording audio files. Examples of the metadata collected are telephonic actions such as delete/forward, time and date stamps and sender/recipient phone numbers. Similar to other formats of electronically stored information, these types of digitized audio files are growing exponentially within businesses and constantly challenging IT professionals to account for them all at an unprecedented rate.
Then, as with traditional discovery, IT professionals should ensure that their company has policies that will collect, search, arrange and review all audio files before presenting any information. In the past, parties that were compelled to produce audio files ordinarily reviewed them by either listening to each file or sending the files to a transcription service and subsequently reading the transcribed text. These methods are arduous and slow, complicating the review of small volumes of recordings and making large volume reviews virtually impossible.
For instance, listening to sound files during review can take up to three or four times the actual duration of the recording. Another limitation associated with listening to audio files is the lack of searchability. Without search functionality, legal teams must rely on the reviewer's abilities to identify keywords as they listen to the recordings. On the other hand, if the recordings are transcribed to text, the legal team must wait weeks or even months before the review can even begin. Another downside to transcription review is that any tone or inflection in the recording will be lost, without going back to the original sound files.
Ultimately, to move ahead, it doesn't matter from where communications originate. What matters now is how companies produce what is relevant. Companies must realize this fact and provide IT professionals with discovery tools that bring e-mail and audio technologies together for e-discovery. With investigative tools and graphical models, companies can quickly sort through massive amounts of data and construct simple, intuitive timelines that answer questions about what happened, when it happened and in what context. As IT professionals assist their companies in closing this gap, businesses will receive an even greater understanding of what content they have and where the risks and liabilities lie. IT professionals will be charged with providing this critical data to the business, allowing it to enter into any litigation scenario in the best position possible.
CONCLUSION
Previously, a combination of a dearth of relevant case law and deficient technology options have kept sound recordings from emerging in the discovery process on a consistent basis. Those days are over. Now, with the newly revised FRCP amendments, cutting-edge technologies and rising state case law, IT professionals are asking themselves new questions: Have I completely examined and accounted for all of my company's audio recording systems? Will the audio data collected be able to be produced and reviewed in an acceptable format? Should an outside sound discovery outfit be consulted?
Once these questions are properly addressed, sound recordings properly gathered by IT professionals can be convincing evidence when utilized during trial or settlement negotiations. In addition to the words themselves, once an audio recording is played, the audience -- usually a jury -- will be able to pick up on the subtle indications inherent in human speech. Cadence, tone, timing and expression will be able to be discerned. IT professionals must be able to assemble and account for audio evidence in such as fashion as to bring the aforementioned to fruition.
In sum, audio recordings are now clearly part of the ESI environment. As a result, they are now naturally subject to the same production and preservation requisites as other forms of ESI. IT professionals must develop and efficiently implement procedures that will be able to pinpoint, review and produce sound files upon request. These maneuvers will enable their company to wade effectively through the previously uncharted ESI waters that are: Audio e-discovery.
Michael Swarz, J.D works for eClaris, a Los Angeles-based e-discovery consulting firm dedicated to helping law firms and corporations classify, process and review electronically stored data. 