From the Georgetown Law Advanced E-Discovery Institute: Unified communications – the game changer in e-discovery

12 November 2009

The presentation was titled Information Everywhere: Understanding New Technologies and Coping With New Problems and was presented by Judge James Francis (U.S. Magistrate Judge in the Southern District of New York), Anne Kershaw (founder of A. Kershaw, P.C.), Thomas Morrissey (responsible for the development and implementation of technology supporting the Office of the General Counsel at Purdue Pharma) and George Rudoy (Director of Global Practice Technology & Information Services at Shearman & Sterling LLP).

They covered virtualization, unified communications and cloud computing.  First up:  unified communications.

Unified communications (UC) is the integration of real-time communication services such as instant messaging (chat), presence information, IP telephony, video conferencing, call control and speech recognition with non real-time communication services such as unified messaging (integrated voicemail, e-mail, SMS and fax).

More and more corporations are moving to UC and it will present/is presenting enormous e-discovery nightmares.  First, some basics:

UC is not a single product, but a set of products that provides a consistent unified user interface and user experience across multiple devices and media types.  UC refers to a trend to offer “business process integration” which means (basically) a process to simplify and integrate all forms of communications in a company to optimize business processes, and manage flows.

So, for discovery, you have EVERYTHING in one place.  It kind of … kind of … makes search easier.  You have the whole story in one spot.  Or as Anne Kershaw said it is like the old days when you went to the file cabinet and went through the correspondence in a file and you said “oh, I see, he wrote this, then she wrote that, and he said this …”

UC allows an individual to send a message on one medium and receive on another. It makes it possible to easily transfer any activity or message to another medium. For example, one can receive a voice mail message and choose to access it through email or a cell phone. If the sender is online according to the presence information and currently accepts calls, the response can be sent immediately through text chat or video call.

The difference between unified communications and unified messaging is this:  unified communications refers to both real-time and non-realtime delivery of communications, where unified messaging systems culls messages from non-realtime sources.

For business, UC it is a no brainer:  it represents a concept where multiple modes of business communications can be seamlessly integrated.  UC integrates all the systems that an employee might already be using and helps those systems work together in real time. For example, unified communications technology could allow a user to seamlessly collaborate with another person on a project, even if the two users are in separate locations. The user could quickly locate the necessary person by accessing an interactive directory, engage in a text messaging session, and then escalate the session to a voice call, or even a video call – all within minutes. In another example, an employee receives a call from a customer who wants answers. Unified communications could enable that worker to access a real-time list of available expert colleagues, then make a call that would reach the necessary person, enabling the employee to answer the customer faster, and eliminating rounds of back-and-forth emails and phone-tag.

Note: the panel provided a video from Microsoft (not to sell Microsoft but to show how this all works) and you can access these videos by clicking here.

However … the e-discovery concerns.  And will the e-discovery concerns slow adoption as companies learn that the move away from traditional phone service includes the conversion of voice mails into e-mail in the form of wave (audio) files.

In the event of litigation, they are discoverable in either case, but in electronic form these audio files must be converted to text because wave files are difficult to search because as audio files there is no actual text information to pull out the document during a search.

Failing a completely accurate technology option, the best protection is a sound business process for the handling of voice mails in any form. All the panel recommended handling voice mails on wave files as part of a company’s document retention (and deletion) policy.

And … like any document, voice mails can provide the smoking gun that determines the outcome of a lawsuit.

The panel did not believe there was an increased legal risk by going to unified communications (companies are storing more voice mail as a result of the conversion to unified communications) but since traditional voice mail already is discoverable, converting voice mail to electronic form makes files more accessible to more people.  And it also makes them easier to store and move around, if not search.

But it triggers issues surrounding legal holds and the “duty to preserve” since these concepts/principles applies to all relevant existing or subsequently created data.  As one panelist said, upon issuance of a litigation hold notice or on receipt of a discovery request a company would have to suspend its retention policy and halt destruction of potentially all voice messages on the voicemail server.  Each message would have to be reviewed for a relevance determination.  Prohibitively time consuming and expensive.  Maybe the relevance of the message may be identifiable based on the context of the metadata regarding the sender, recipient and date/time received? 

A complex, complex area.   But regardless of the digital technology, it all must be integrated in a data retention/deletion policy.

Bottom line:  unified communications promises to pave the way for more collaborative business practices and greater productivity, but it also means the general counsel and his/her ESI manager have another set of issues.  Because while while real time communications like IM, VolP, web and audio conferencing make business workflow easier it also brings inherent risks including security, compliance and e-discovery.