Within the Enforcement Manual of the Securities and Exchange Commission (SEC) Division of Enforcement, there exists a definition of the document types for which an officer might deem relevant and issue a subpoena. Though the definition reads “…messages of any type, telephone messages, voice mails…or otherwise, which can be retrieved, obtained, manipulated, or translated”, most companies focus on the “messages of any type” component of that definition. When they do, they put audio recordings such as phone and voice messages on the backburner as there is no efficient way to handle them. But having to deal with audio content from phone systems, VoIP, call desks, trading desks, etc., is entering the mainstream of eDiscovery.
The need to pull audio into the eDiscovery process is gaining attention because of scenarios that appear innocuous on the surface. Consider situations where someone like a trader is having a phone conversation with a client and at the same moment exchanging emails with another. On the surface, the two tasks seem distinct and unrelated with no indication of foul play. But if one listens to the audio in context with the email exchange, it may paint a completely different picture. In fact, it may show that the trader was in fact working the client on the phone call to his advantage based on information he was receiving from the individual with whom he was exchanging emails or instant messages.
However tying these two events together is anything but easy doing only a discovery of written messages. Companies are now challenged to efficiently bring audio eDiscoveries into their larger eDiscovery processes of written content such as emails and instant messages. In these circumstances audio eDiscovery is almost always handled as a separate process but this inability to combine audio and email eDiscoveries into one has created the following challenges for companies:
- The need to bring in point products for each type of eDiscovery
- The need to hire high-paid consultants to manage audio eDiscoveries
- Creating and maintaining one-off processes to handle audio
This lack of an integrated process results in companies adopting audio discovery processes that are separate from the normal chain of custody processes. This results in email and audio data not tagged the same way and no way to directly relate them to each other. Further, the context of building a timeline when these transactions occurred becomes more difficult to create and leaves investigators unable to see the interrelationships between these different messages. This is problematic from a legal standpoint as companies move to a uniform communications model since all communications in whatever form they take – written, audio and eventually video – must be put into context.
Ultimately, it doesn’t matter from where communications originate. What matters now is how companies produce what is relevant. Companies like Autonomy realize this fact and provide eDiscovery tools that bring email and audio technologies together for eDiscovery. 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 companies start to close this gap, companies obtain an understanding of what content they have and where the risks and liabilities lie and then use them to quickly build a strategy and bring those items into play so they go into any litigation scenario in the best position possible.