Emails, Voicemails, Text Messages
Emails are discoverable, unless they are subject to the Attorney Client or Work Product Privilege. It is important to note that forwarding a privileged email to a party outside of the attorney client relationship will likely result in the waiver of the privilege.
Emails of in-house counsel are especially sensitive. In order to maintain the privilege, the email must be relating to legal advice, not business advice. It is best for the communication to include a statement that it contains a confidential information for the purpose of rendering legal advice. Extra caution must be taken to ensure that the email is not forwarded to anyone outside of the organizations control group.
Additionally, certain web based email providers, such as Gmail, Yahoo, and Hotmail, among others, make it difficult to produce native email communications. This has to do with the manner in which the files are saved on the servers. In such cases, document recovery firms are often needed to extract the near native format. This can be an expensive process, depending on the size of the request. Email services, such as outlook, that save the files as .msg files are considerably easier to produce in native format. If employees are forwarding work items to their personal accounts, producing emails from those accounts may be required. Organizations should take measures to prevent employees from forwarding work related documents to personal accounts.
Voicemails are generally discoverable, unless they fall under the Attorney Client Privilege or the Work Product Privilege apply. See e.g. Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 142 (2004). Voicemail is an electronic communication that is discoverable under both Utah’s rules and the Federal Rules. See Utah Rule of Civil Procedure 34 and Federal Rule of Civil Procedure 34 (noting that “sound recordings” are discoverable.); see also Bills v. Kennecott Corp., 108 F.R.D. 459, 461 D. Utah 1985) (“it is now axiomatic that electronically stored information is discoverable”).
Producing voicemails has become easier now that voicemail systems are usually digital, and a native electronic copy can easily be obtain and produced. While actually producing the files is relatively simple, knowing which files to produce can become expensive because each file must be listened to and reviewed. Voicemail systems that create an email that shows when the voicemail was left and who the sender was can significantly reduce costs because it makes it easier to identify potentially relevant voicemails and weed out those which are not responsive or relevant.
Similar to voicemails, text messages are also discoverable. Obtaining text messages in their native form can be an expensive process requiring the utilization of specialized software or document recovery providers. If text messages are going to be an issue in a cases, it is best to reach an agreement with opposing counsel regarding acceptable file format for turning over the documents. If only a few text messages are important, it may be sufficient if they are produced as screenshots. Most mobile phones have the ability to create a screenshot of what is being displayed. If there are numerous text messages, there is relatively inexpensive software that can be used to extract the text messages and produce them as .pdf files. If native files are required, .sms, then production will be considerably more expensive. Note that under both the Utah and Federal rules, a party may object to producing the documents in native format if the cost of doing so is unreasonably burdensome. Utah R. Civ. P. 26(b)(4); Fed. R. Civ. P. 26(b)(2)(B).
Facebook, LinkedIn and other social media accounts are increasingly becoming subject to discovery. Archive files are usually downloadable and can be produced. Parties should be aware that information about the case may be placed on social media. It can also become the basis for counterclaims of defamation.