Audio Discovery: The Next Frontier

By: Correy E. Stephenson
Lawyers USA
Mar. 01, 2007

More than just voicemail, audio discovery encompasses all types of audio files, including recorded calls to customer services centers, teleconferences, webconferences and taped Board of Directors meetings, among other things.

As the use of audio files increases in everyday life, so does its use in litigation.

"The new Federal Rules caused lawyers to focus more on electronically stored information, and now that people are starting to get their heads around e-mail and other electronic documents, audio files are the next frontier," said Lori Wagner, a partner at Redgrave Daley Ragan & Wagner in Minneapolis, Minn., who works with large companies to understand their technological infrastructure and prepare for discovery.

"This is a new avenue for civil discovery," agreed Michele Lange, a staff attorney at Kroll OnTrack in Eden Prairie, Minn., a computer forensics company that specializes in electronic evidence. "It has seeped into our culture that using a computer or sending an e-mail leaves a fingerprint, but it hasn't yet seeped in that leaving a voicemail does exactly the same thing."

The new Federal Rules only reinforce the importance of audio discovery, Lange added.

"Rule 34(a) specifically says that sound recordings are fully discoverable," she noted, foreclosing arguments about whether or not audio files must be produced. In addition, "we're starting to see developing case law, where judges are addressing the preservation and production of audio files in standard civil discovery."

Although voicemails have been around for decades, the current attention to audio discovery is a result of our increasingly digitized society.

Another factor is the advanced technology that makes reviewing and searching audio files cheaper and easier for attorneys.

"The big barrier in audio discovery has always been the issue of searchability," explained David Fishel, senior director technology counsel at Nexidia, based in Atlanta, Ga. Nexidia recently partnered with Kroll OnTrack to combine its phonetic-based technology for indexing and searching audio files with Kroll's litigation experience.

"Just like e-mail, a huge percentage of voicemails are useless, and it's time-consuming to listen to all of them - you need a way to search through them to find what you need," he said.

But technological advances mean the use of audio discovery will only increase.

"The future will bring … audio file collection and review similar to [what is done for] e-mail," predicted Marla S.K. Bergman, counsel at Jones Day in New York, whose practice specializes in the exchange of electronically stored information. .

Lange agreed. "Five to ten years from now … we won't believe we got away with not producing audio files."

Where to find them

While the most common audio files at issue in discovery remain voicemails, many others exist.

For example, call centers, particularly in product liability or pharmaceutical cases, can be a good source of audio files, and the number of board meetings and conference calls being recorded is rapidly increasing, Fishel said.

"Lawyers haven't really thought to look much at business-related audio files. [They] will ask for notes or minutes from meetings in a request for production, but recordings may very well be a much better source of evidence than notes," he said.

In addition, some industries are required to keep their phone records on file for a certain amount of time, such as brokers regulated by the SEC, said Wagner.

He noted that some companies have introduced technology that transfers voicemails to employees' e-mail inboxes - while more advanced systems actually convert audio files to text, others simply forward the message in its audio format, meaning that employees' laptops and desktop computers can be fruitful sources of discovery.

The result is that audio files are increasingly finding their way into the courtroom, from Martha Stewart's infamous voicemail to her broker to messages left by Enron employees who noted they were leaving voicemails in lieu of sending an e-mail - so there wouldn't be a record.

Lange said voicemails have been an issue in the Vioxx litigation, where Merck employees discussed the drug over the phone. And a U.S. District Court in California recently ordered the preservation of audio files in a case where plaintiffs are alleging that a company violated the Fair Debt Collection Practices Act and want to obtain tapes of phone calls made to it. (Del Campo v. Kennedy, No. C-01-21151-JW (N.D.Cal. 2006).)

"The judge refused to accept … that maintaining this digital evidence was a burden, and expected the attorneys to have general knowledge of all the electronically stored information - including audio files - in their clients' possession," Lange said.

Bergman, who has worked on several cases where the parties have requested that audio files be preserved and collected, said that because so many lawyers are still unfamiliar with this issue, attorneys can use the request as potential leverage.

"Some parties are requesting the preservation of voicemail not necessarily because they truly want to review and collect the information, but to exploit a chink in their adversary's armor, to set the stage for a spoliation argument before the court," she explained.

Successful searching

Previously, lawyers faced the expense of hiring staff, handing them headphones and waiting while they listened to audio files word for word.

"And you can't get through one hour of audio in one hour of listening," Lange noted. "It takes about two to four times as long, so if you have 200 hours of audio, expect that to take 400 hours minimum to get through."

The other option was to hire a court reporter to transcribe the audio to text, which had similar cost and time drawbacks.

But technology has come to the rescue - specifically, with phonetic-based software that drastically reduces the time and effort required to deal with audio discovery.

"Essentially, our process analyzes the spoken content, the specific phonetic utterances in context and creates a specialized index," explained Jeff Schlueter, senior director of legal markets at Nexidia. Software then allows a search of the index, using key words or phrases, which will take the user to an exact point in the recording.

The company's phonetic indexing and search technology has been around for years, but is relatively new to the legal market, Schlueter explained. He said it offers lawyers two key solutions to the historical problems of audio discovery: speed and accuracy.

"A single machine can index up to 8,000 hours of content per day - over 341 times faster than real time," he said. The software is available in 30 languages, including three different versions of English: Australian, United Kingdom and Northern American, which includes dialects ranging from Texas to Canada to New England.

Pricing can either be based on an entire project or by the hour.

Nexidia has already seen a dramatic increase in its business post-Dec. 1, when the new Federal Rules went into effect, as lawyers have begun trying to cope with audio discovery.

"People are really dealing with audio discovery for the first time, and it can be really daunting, especially now that lawyers have to meet and confer under the Federal Rules so quickly," Fishel said, giving them little time to become acquainted with a client's audio files.

But once you figure out what is there, "if the data collection that you identify involves more than a few hundred hours of audio, then searching is going to have to be a factor," he said.