Your Voicemail On The Front Page Of The New York Times - It Could Happen

Thursday, March 1, 2007 - 01:00

It is widely known that caution is advised in the use of email lest we find an embarrassing or damaging email on the front page of The New York Times or a law journal. Few, however, realize that the same admonition applies equally to voicemail messages. Recent developments in the Vioxx litigation brought this reality to bear for Merck & Co., Inc. when a court ordered Merck to preserve and produce all Vioxx-related voicemail messages. Thus, practitioners and their clients should be mindful that voicemail, like email, is an area of discovery that may pose significant challenges in any litigation and proceed with care.

Sobering Litigation Exposure

A brief recitation of Merck's potential exposure serves to highlight the high stakes that can be involved, and thus the incentive of plaintiffs' counsel to leave no stone unturned during discovery. Merck, one of the largest pharmaceutical companies in the world, currently finds itself defending against roughly 24,000 lawsuits relating to its pain medication Vioxx.1 Vioxx was extremely profitable with sales in the billions before Merck voluntarily recalled the drug on September 30, 2004. Now Merck faces potential liability in the billions.

With potential liability in the billions, Merck's financial viability may be at stake. Since many of the claims in the various suits are related, even a small setback in one case can have a resounding impact on other Vioxx litigations. Such a scenario is all too common for many corporate defendants involved in high-stakes mass tort or multiple-plaintiff litigation. With respect to Merck's products liability cases, any evidence that it knowingly misrepresented or failed to disclose risks associated with taking Vioxx to doctors or patients could be significantly detrimental for Merck, and extremely beneficial to plaintiffs. Recent orders issued in the products liability litigation in New Jersey have the potential to turn the current litigation frenzy into a defense nightmare.

The Wake-Up Call From The Products Liability Vioxx Litigation

On September 8, 2006, Judge Carol E. Higbee of the New Jersey Superior Court in Atlantic County issued an order requiring Merck to preserve all existing Vioxx-related voicemails.2 Judge Higbee also ordered Merck to prohibit its employees from leaving any additional Vioxx-related voicemails. While there is little case law relating to voicemail discovery, Judge Higbee's order is consistent with the limited case law and discovery orders that include voicemail as discoverable material.3

Judge Higbee's voicemail preservation order followed an August 25, 2006 oral argument where plaintiffs' attorneys voiced a pressing concern over the potential spoliation of evidence contained in Merck's voicemail system.4 Plaintiffs described a document that indicated sensitive Vioxx-related information had intentionally been omitted from an email and instead relayed over voicemail. Plaintiffs also described internal handwritten scripts found during discovery that were prepared for reading into the voicemail system and mass distribution. Plaintiffs indicated that at least one such script requested the voicemail recipient not reply by email in regard to certain sensitive issues.

Plaintiffs argued that if voicemails were used instead of written communications and destroyed without a backup system, Merck would be violating its obligation to preserve relevant Vioxx-related evidence. The defense attorneys argued that there is no reasonable or feasible way to preserve the voicemails and that to reconfigure the Merck voicemail system, which at the time routinely deleted voicemails after 30 days, would be extremely complex and expensive.

During the discovery conference Judge Higbee referenced an existing order entered at the commencement of the litigation requiring the preservation of all evidence related to Vioxx and noted that voicemail had never been excluded from that order. The transcript indicates that the ban on further Vioxx-related voicemails in the September 8 order responded to plaintiffs' concern that as time passed to resolve the issue, evidence would continue to be subject to deletion. The Court was apparently unmoved by Merck's burden and expense argument and took a middle ground approach in the preservation order pending a then upcoming deposition of a person knowledgeable about Merck's voicemail system.

Subsequently, on October 10, 2006, Judge Higbee ordered Merck to produce, within twenty days, all of the Vioxx-related voicemails preserved pursuant to her previous order.5

The Impact Of Voicemail Discovery

Judge Higbee's voicemail preservation and production orders have significant implications not only for Merck but for all practitioners and clients. Indeed, an order to produce voicemail in one proceeding may have an impact beyond merely the case in which it is entered. For example, now that Merck has been ordered to produce its Vioxx-related voicemail records, plaintiffs in other cases and jurisdictions will no doubt seek discovery of those same records. Aside from the issue of costs, which may alone be daunting, the possibility of plaintiffs discovering damaging voicemails is very real if plaintiffs have indeed found the types of documents they say they have and if the company uses voicemail in much the same way that others would use email.

For all practitioners, voicemail discovery may prove to be more damaging than email discovery because few are aware of the technological capabilities of voicemail systems and may believe that deleting a voicemail causes it to disappear, which may not be the case. This lack of awareness is particularly dangerous if sensitive information is purposefully excluded from email and instead left as voicemail under an assumption that the voicemail will not resurface. Moreover, the tone and inflection of the sender in a voicemail is apparent and less capable of being "explained away" than an email message which is more sterile and open to interpretation.

Voicemail Discovery & Products Liability Defendants

The characteristics of a company's voicemail system will impact the ease of searching and retrieval of messages and the associated costs, thus potentially impacting a party's discovery strategy. Presumably, as sophistication in voicemail systems increases, the cost to search those systems decreases. In that case, parties may be hard-pressed to contend that preserving and producing relevant voicemails constitutes an undue financial burden. Indeed, many state-of-the-art voicemail systems are Internet-based and store voicemails in much the same way as emails, making searching based on recipient or keyword much easier and efficient. A company with such a system will thus face more of a challenge resisting production of voicemail records based upon a cost and burden argument. But less sophisticated systems will not get companies off the hook because if storage and preservation of voicemails is at all possible, a court may be inclined to order preservation and production of voicemail records even if tedious and costly. As with other discovery issues, a balance will likely need to be struck on a case-by-case basis.

Any client, whether involved in mass litigation regarding product recalls or consumer fraud claims like Merck in the Vioxx context or in a litigation against a single plaintiff, must consider the implications of voicemail discovery. It is incumbent upon practitioners, therefore, to advise their clients to approach voicemails with the utmost care even before a litigation is on the horizon because voicemails can come back to haunt a client years down the road much like any discoverable document. Counseling should also include a discussion as to the client's responsibility to preserve voicemail records in the event of a discovery order or litigation. A document retention policy for litigation matters should also include voicemail in its ambit.

Parties should also be guided by the newly enacted changes to the federal discovery rules which apply to electronic discovery, as appropriate.6 For example, the new rules require parties to address issues related to electronic discovery such as form of production and preservation in a Rule 26(f) conference. It is crucial that voicemail systems and messages be included as items of discussion at these initial conferences and that counsel gain an understanding of their clients' voicemail systems, just as they would their clients' email systems. The scope of voicemail discovery should be guided by the new rules which establish that a party need not retrieve or produce electronic information that is not reasonably accessible.7

The recent Vioxx orders prove that courts are willing to issue voicemail preservation orders and clients should be aware and prepared. These orders will likely become more common as plaintiffs seek to broaden their search for as many company records as possible in the hunt for the proverbial "smoking gun."8 For any client facing high-stakes litigation, voicemail discovery orders may have resounding implications. A products liability defendant like Merck that faces thousands of lawsuits has its risk exposure multiplied by the number of plaintiffs and the possibility of punitive damages and statutory damages. Keeping such exposure in check, or at a minimum not adding fuel to the fire, is something that practitioners need to consider at the outset of a potential litigation, and even sooner if possible, by impressing upon their clients the importance and potential pitfalls of voicemail. 1 For Merck's summary of the current Vioxx-related litigation included in a recent SEC filing, see Merck & Co., Inc., Quarterly Report (Form 10-Q), 29-31 (Aug. 7, 2006).

2 Approximately 7,000 of Merck's Vioxx cases have been centralized before Judge Higbee. Her order is available at www.judiciary.state.nj.us/mass-tort/vioxx/vioxx_voicemail_091106.pdf.

3 See, e.g., ICU Medical, Inc. v. B. Braun Medical, Inc., 2005 WL 151927, 1 (2005) ("Plaintiff [] shall search all computerized files, e-mails, voice mails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there."); Order Concerning Electronic Discovery Hearing, In re: Prempro Products Liability Litigation, MDL Docket No. 4:03CV1507-WRW (Nov. 17, 2003), available at www.fjc.gov (including voicemail under the parties' duties to preserve discoverable evidence).

4 Transcripts of oral arguments for In re: Vioxx Litigation, Case Code 619, are available from the New Jersey Superior Court.

5 The October 10, 2006 order is available at www.judiciary.state.nj.us/mass-tort/vioxx/vioxx_ mvx_101306.pdf.

6 New electronic discovery rules that amend portions of the Federal Rules of Civil Procedure have been approved by the Supreme Court and took effect on December 1, 2006. The E-Discovery Amendments and Committee Notes are available at www.uscourts.gov/rules/EDiscovery_w_Notes.pdf.

7 The new Rule 26(b)(2) provides in part: A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible. On motion by the requesting party, the responding party must show that the information is not reasonably accessible. If that showing is made, the court may order discovery of the information for good cause, and may specify conditions for such discovery.

8 While this article focuses largely upon discovery of a defendant, the admonition applies with equal rigor to companies that are plaintiffs in a litigation.

Theodore E. Tsekerides is Counsel at Weil, Gotshal & Manges LLP, where he specializes in complex commercial litigation and products liability. Isabella C. Lacayo is an Associate at the firm.

Please email the authors at theodore.tsekerides@weil.com or isabella.lacayo@weil.com with questions about this article.