Besides the three-martini lunch, the most personalized and candid form of communication in business is voice mail. Like e-mail, voice messages are often casual and off-the-cuff. The speakers never expect to hear the words they deposit in voice systems again.

Voice recordings introduced as evidence continue to impact juries and judges more than e-mail, paper, or other electronic documents. E-mail is flat communication. Even with emoticons, it's difficult to determine tone, inflection, conviction, and other non-verbal cues in the written word. Letters and other electronic documents don't even have emoticons.

An example of the voice recording impact is visible in the case where Kelley Drye & Warren in New York represented Arch Personal Care Products in a non-compete lawsuit against a founder of a company it had just acquired. The defendant was caught trying to establish a competing company even before the Arch Personal Care Products could complete the acquisition. A 30-second, expletive-laden voice mail solidified the case and ultimately led to a US$7 million verdict for Arch.

So is it discoverable?

Although it's arguable that voice mail and voice recordings have always been discoverable, you couldn't really deem them "documents" or "electronic data compilations." With the amendments to the Federal Rules of Civil Procedure that will go into effect in December 2006, the new designation is "electronically stored information" (ESI). Voice mail and voice recordings are clearly covered under the designation as ESI. Even without this clarity, courts have compelled the production of voice messages and other recordings. The court record on imposing sanctions for not preserving or producing voice communications has been mixed. However, the courts have been relatively gentle with their sanctions. I believe this is due to the challenges in understanding what kind of voice system or recording is at issue, such as how to request, preserve, review, produce, and introduce it into evidence with a proper foundation. For more on court decisions, see the sidebar Relevant Case Citations.

Some voice systems, especially newer digital systems and Internet-based technologies, adapt themselves to legal and investigatory processes better than others. Some voice systems, such as transportation recording systems, court recording systems, and 911 tapes, are designed with evidence handling in mind. Companies implementing voice recordings systems for regulatory purposes should take note.