Introduction to Audio ediscovery

Transcription

1 white paper A Whitepaper by Nexidia, Inc. and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending.

2 Copyright Notice Copyright , Nexidia Inc. All rights reserved. This manual and any software described herein, in whole or in part may not be reproduced, translated or modified in any manner, without the prior written approval of Nexidia Inc. Any documentation that is made available by Nexidia Inc. is the copyrighted work of Nexidia Inc. or its licensors and is owned by Nexidia Inc. or its licensors. This document contains information that may be protected by one or more U.S. patents, foreign patents or pending applications. TRADEMARKS Nexidia, Enterprise Speech Intelligence, Nexidia ESI, the Nexidia logo, and combinations thereof are trademarks of Nexidia Inc. in the United States and other countries. Other product name and brands mentioned in this manual may be the trademarks or registered trademarks of their respective companies and are hereby acknowledged. and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 2

3 Introduction The recent Amendments to the Federal Rules Of Civil Procedure (FRCP) specifically define sound recordings as a type of electronically stored information (ESI) that is subject to the same identification, preservation, disclosure, and production requirements as word processing documents, , or any other kind of ESI. 1 The new provisions may catch litigants unprepared to take the mandatory actions that apply to audio or to comply with the new deadlines for developing a comprehensive e-discovery plan. Some litigants may violate the discovery rules by failing entirely to identify sound recordings. E-discovery now, by definition, includes audio files. As courts enforce the full scope of the new ESI requirements, the ability to cost-effectively locate, preserve, review, and produce audio evidence will be a critical element in litigation. Discovery of Sound Recordings By now, attorneys and litigants should be fully aware that the FRCP discovery rules apply to all types of data, including audio. The FRCP, and the judicial opinions leading up to the recent revisions, make it clear that discovery requirements are media neutral. There is no variety of electronic media that is exempt from discovery by virtue of its format. Considering the amount of exposure given to the FRCP revisions, courts are already expecting attorneys to be facile with regard to their clients electronically stored information. Judges give every indication that they will enforce the full scope of the rules and the shortened deadlines from the outset of the amended Rules. While audio recordings were discoverable in the past, lawyers tended to avoid recordings unless something pointed them to a specific event or message. That is one reason that very few lawyers have any experience with audio discovery. Another reason is that in the past, any review or production of sound recordings was an expensive, labor-intensive proposition, to be avoided whenever possible. The technology and the law have developed to the point where, if a company has sound recordings voic , customer support, conference calls, collections, transactions it is required to identify, review, and perhaps produce those recordings along with its documents and other information. That requirement has come much sooner than many lawyers are prepared for. Who has Audio Discovery Issues? Most commercial enterprises have large collections of sound recordings that are subject to discovery requirements. These may include voic systems, customer call centers, financial transactions, or web-based corporate meetings. New digital and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 3

4 recording technologies have rapidly increased the ability to record speech and to store vast amounts of those recordings, so the amount of recordings is growing dramatically. Since these technologies are digital (that is, created and stored on computerized systems rather than analog tape), the growth of audio in the business world is enabled by the same factors that brought about the recent explosion of electronic messaging and documents, and like them, digital audio usage is growing very, very fast and takes a number of forms. Sound recording means voic to many attorneys, but voic itself can take several forms. Voic now ranges from the simple cassette recorder to the company PBX, and even to the system. Universal messaging systems that attach digital sound recordings to messages are becoming common in the business world, and are routinely turning up in discovery (often as attachments in the WAV format). Of course, voic is not the only variety of audio evidence. Businesses routinely record interactions with customers. For example, corporate call centers often record product- and servicerelated conversations with their customers. These conversations may represent huge stores of potentially discoverable recordings. If the issues in a case include, for example, the number and type of complaints about a certain product, when a company had notice of alleged problems with a product, or how a company treated its customers, that information could be found in the thousands (or millions) of calls the company received and recorded. Many businesses also record transactional conversations, such as trading or sales calls. This type of recording is common in financial service businesses where some types of financial transactions between service companies and their retail customers must be recorded to comply with laws and regulations governing those activities. In the fast moving world of financial markets, recordings of traders have proven critical in cases involving energy companies and commodities traders. Companies also record meetings, conference calls, and other group activities such as presentations and training, especially when those meetings are web-based. Collections of recordings may include Web-conferences, IP-based conference calls, and executive-level meetings. Some companies record meetings or training sessions as podcasts or videos which they distribute to employees. Despite their misgivings about the difficulty of dealing with audio, attorneys should be aware that recorded conversations can be valuable sources of evidence, for a number of reasons. First, text or databases cannot fully capture some types of communication, such as calls between customers and company service centers, or transactional conversations in financial markets. Second, people tend to be less circumspect about their spoken communications than in written ones, and off-hand remarks can point to other evidence whose importance is buried in databases. A person s tone of voice or inflection can convey as much meaning as the words used. Finally, many people have rightly assumed that they have security through obscurity; that is, they realize that it is difficult or impossible for someone to monitor everything they say, so they believe that they can be more open when speaking than they would be in writing. Risks of Failing to Plan and Conduct Audio Discovery The combination of specific discovery requirements and explosive growth of recorded content means that whether you are currently engaged in discovery or can reasonably foresee litigation, you should be thinking about audio recordings. A lack of and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 4

5 education, procedures, and systems in place ahead of litigation demands can lead to bad outcomes for both attorneys and clients. Some companies are actively preparing mapping their systems, educating counsel and staff, and organizing their data while others are waiting for litigation before they get organized. Given the very short deadlines, mandatory disclosure requirements, and the expectation of courts and clients that attorneys should be intimately acquainted with the clients information systems, attorneys would be wise to prepare now. Many firms have been re-engineering their corporate information systems, building compliance-focused processes and systems to comply with accounting and reporting legislation such as the Sarbanes Oxley Act of 2002 (SOX). Some are also aiming to use the new information management frameworks to reduce the costs of responding to discovery requests. They hope to use business systems (rather than litigation systems ) to respond to the inevitable regulatory and litigation demands, which in turn will reduce the disruption and cost of requests that have become routine business processes in the post-enron era. Including audio recordings in the enterprise information management and compliance framework allows a company to reduce its litigation costs, improve its relationships with regulatory agencies, and, if included as part of a proactive culture of compliance, it allows the company to make a case for mitigated penalties in the event of a regulatory infraction. Unfortunately, some companies may overlook their audio data in this restructuring process and fail to account for all of their ESI obligations. There are significant litigation risks for failing to properly conduct any aspect of discovery, and little room for error. Many of the discovery sanctions cases in the past few years involved backup tapes for . Although backup tapes have a reputation for being notoriously difficult to find and produce, no exception has been afforded to tapes or because they are hard to manage or a new requirement. As noted above, the amendments to the FRCP dash any lingering hope that some form of data is immune to standard discovery requirements due to its unique characteristics. The discovery rules are media-neutral: the requirements for identifying, preserving, and producing them as well as the sanctions for failing to do so apply across the spectrum of electronically stored information. Discovery sanctions cases of the past few years generally applied the harshest sanctions to bad faith actions, but inattention and incompetence are not viewed kindly by courts either, especially if the opposing party suffers prejudice as a result. 2 As with all major changes in the law, we would expect to see a period in which courts provide some flexibility and leeway as clients, counsel, and courts come to terms with both the Rules and the ever-changing technology. However, given the amount of news, education, and analysis of e-discovery cases and the amendments to the FRCP, any grace period can be expected to be very short. Of course, the greatest risk in audio discovery is the pure litigation risk posed by the recordings themselves. No attorney wants to hand over discovery materials before thoroughly reviewing them, but it can happen when the deadlines are short, the collections large, and the media difficult to search. This dangerous combination describes many cases involving sound recordings. Steps for Audio Discovery New digital recording technology spawns new opportunities and challenges for both requesting and producing parties. More stored information means more potentially relevant evidence, but it also means more work for both sides. While the rapidly changing technologies may challenge our understanding, the process of discovery for sound recordings is the same as for any other electronically stored information. and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 5

6 1 IDENTIFY the possible sources of audio recordings that may be relevant to the matter. Determine which are accessible (and from which you will likely make production), and those that arguably are not reasonably accessible. These audio files may be in places that litigants have not previously considered, such as call logging systems, voic (PBX-based and even within the system), web conference or other online meetings and calls, and customer call centers. You will need to be familiar with how those files are stored, their formats, and the possible content or other characteristics you will use to decide whether the recordings may be relevant to the issues. 3 2 Take the necessary steps to PRESERVE the recordings, including those that you have determined are not reasonably accessible. The failure to preserve evidence has been the subject of countless sanctions motions, judicial decisions, and articles. There is no basis for preserving audio differently from other ESI. 4 The issues involved in preserving audio recordings are similar to those for any other digital media, but care should be taken to ensure that there are effective systems and procedures in place, and that repositories are not overlooked. While companies have paid a great deal of attention to preserving documents and , they may not have been as thorough creating retention and preservation policies for their audio records. 3 COLLECT the evidence. Audio requires the same amount of care as other forms of electronically stored information, but litigants may be unfamiliar with issues regarding file formats or metadata gathering. For example, there may be significant metadata that also should be preserved, extracted, and produced, stored in a database or file separate from the sound recording file. 4 On cases of any size, some form of PROCESSING will be necessary to prepare for legal review of the recordings. This processing may include tasks like converting from proprietary file formats (of which there are many), or extracting audio files that are embedded in messages. 5 REVIEW the recordings for responsiveness, privilege, and privacy issues. This is the stage where many audio discovery plans falter because an audio recording is fundamentally different from virtually every other kind of information that attorneys are used to in that it is not text. Further, in large quantities audio recordings are difficult and expensive to reduce to searchable text. This is the make-or-break stage where good search tools will greatly enable the discovery process on larger collections, and may determine whether requests for audio recordings are unduly burdensome or expensive to produce. In addition, this stage requires a review workflow for audio that can differ markedly from the text-based review process. 6 PRODUCE the responsive recordings. This may entail further processing and also requires consideration of the format in which the material will be made available. Rule 34(a) requires that electronically stored information be provided in a reasonably usable format, which in audio discovery may require converting recordings from a proprietary format. A requesting party may specify a preferred form or forms, but the responding party must either agree to that choice or propose another form of production which it intends to undertake. Is Audio Search Possible? With the advent of e-discovery on large bodies of audio comes the need to fully process them as discovery materials, including the challenge of finding responsive recordings. It is possible for a litigant s IT and legal staff to have a good grasp on the location of audio evidence, but to have no idea what the recordings contain. and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 6

7 At present, there are three primary ways of reviewing and searching recordings: listening, manual transcription, and phonetic search. (A fourth option, speech-to-text transcription via computer software, is widely regarded in the legal field as currently not sufficiently accurate to produce reliably searchable transcripts.) Listening and transcription are the most-used methods at present, and can be effective for small collections of recordings. However, both methods are very expensive and slow, and neither can scale up to economically handle the hundreds or thousands of hours of recordings a larger matter might produce. Even on small audio collections, the cost of transcribing or listening to recordings can quickly become prohibitive. Listening suffers from a number of limitations, the greatest of which is the reviewer s inability to search the audio content. If a new search subject is added after the first time a reviewer has listened to recordings, the recordings must be listened to again in their entirety. Physical listening is also expensive, although listening costs vary widely. Firms sometimes use paralegals or contract attorneys for the initial review, but supervising attorneys generally listen to potentially relevant recordings in order to make legal determinations about them. In addition to prohibitive cost and lack of searchability, effective listening takes much longer than the duration of the recordings themselves, listeners find it difficult to sustain attention for any long period of time, and it is difficult to get directly back to relevant bits of conversation even after they have been located. Transcription can also be slow and expensive. On average, a law firm can expect to spend over $100 per hour of audio recording to produce a usable transcript of audio content, and economical transcription services can take a very long time. These problems increase with the size of an audio collection. Transcripts of key sections of recordings may be required for motion practice and trial, but transcribing more than 100 to 200 hours of recordings is a prohibitively expensive and slow way to manage a large collection of audio evidence. In addition, a transcript fails to capture much of the useful information from a recording, such as tone, inflection, and emotion in the human voice. Phonetic Audio Search Technology Enables Large Scale Audio Discovery Phonetic audio search technology is based on breaking audio recordings into the smallest components of human speech, known as phonemes. (There are roughly 40 phonemes used in spoken North American English.) Phonetic search of audio recordings is very fast, accurate, and economical compared with other methods. The high-speed phonetic audio search approach is comprised of two phases preprocessing and searching. The first phase preprocesses the sound recordings to break the recorded words into very short chunks that contain their component phonemes. This step produces a phonetic search track. A single server can render one hour of audio recording searchable in less than one minute. Reviewers then search the phonetic index for words and phrases, and software links the search results directly to the point in the original recording where the search term was found, allowing reviewers to jump directly to the point in the recording containing potentially relevant terms. This greatly increases the speed at which reviewers can pinpoint their listening to potentially relevant passages of the audio. This means that the phonetic search tool makes it feasible to search and review thousands of hours of recordings for discovery. The more audio data you have, the greater the advantages of phonetic search, and the more inefficient and impractical physical listening and manual transcription become. and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 7

8 Since 2000, Nexidia Inc. has applied phonetic search technology in the government intelligence and commercial call center arenas. More recently, the company began applying the technology to e-discovery and corporate compliance. Nexidia Forensic Search provides a unique Phonetic Search Engine, which indexes and analyzes phonemes, the smallest discrete elements of human speech, and includes review tools specifically designed for legal applications. Nexidia Forensic Search makes electronic audio review and search much faster, more scalable, and cost-effective. Using Nexidia Forensic Search tools, producing parties can rapidly winnow irrelevant materials and focus their efforts on finding and reviewing potentially responsive records. Requesting parties can use the same tools to organize their review, and to find the needle in the haystack. Conclusion Litigation support companies, corporate counsel, and law firms must be sure that they are prepared for the audio discovery requests that are the inevitable result of the broadening scope of e-discovery and the growth of recorded content. Nexidia Forensic Search provides fast, accurate audio search, a critical aspect of fully complying with the requirement that sound recordings be treated the same as other electronically stored information. Phonetic search makes it possible to conduct large scale audio discovery. and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 8

9 References 1 Fed. R. Civ. P. 34. Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes, (a) Scope: electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained 2 Judge Scheindlin of Zubulake fame published an interesting study of e-discovery sanctions at 11 Mich. Telecomm. Tech. L. Rev. 71 (2004). The article can be downloaded at 3 Fed. R. Civ. P. Rules 16(b) and 26(f) require that the parties meet very early in the case, confer on discovery issues (including ESI), and develop a discovery plan. This means that counsel and client need to come to grips with their information systems at the earliest stages of the case. Those who are not knowledgeable about their information systems run a serious risk that the court will issue a discovery order and schedule that they simply cannot meet. There is no reason to believe that courts will take kindly to protests about a schedule being impossible to meet if that schedule results from the attorneys failing to fully understand the issues and inform the court. 4 Fed. R. Civ. P. 26(b)(2) requires the preservation even of media that a party claims are not reasonably accessible. Moreover, technology advances could render today s inaccessible data readily available next year. Nexidia Inc Piedmont Road NE Building Two, Suite 400 Atlanta, GA tel fax toll-free nexidia.com and one or more of the following United States patents: 7,231,351; 7,263,484; 7,313,521; 7,324,939; 7,406,415 and other patents pending. 9