One critical consideration is whether the employer reimburses private
cell phone use in the course of business pro rata.
Stephen M. Garner
Records Manager
x28707
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On
Behalf Of Maarja Krusten
Sent: Friday, August 05, 2005 2:47 PM
To: [log in to unmask]
Subject: Re: Cell phone Voice mail Records
Deborah,
I'm not a records manager or a lawyer, so this just is my top of the
head reaction.
Is this a cell phone belonging personally to an employee of the
organization whose records you manage? If so, why are you being asked
to retrieve the record? Have you talked to your company's legal counsel
about this?
Most organizations caution their employees that they do not have a right
of privacy in the use of office email or voice mail, but your posting
refers to a message left on a private cell phone. Wouldn't that be
outside the scope of your reach, since you only can be expected to
manage the company records within your jurisdiction? A voice mail left
on a private cell phone would not be within your jurisdiction, it would
reside on the server of the wireless provider with whom that individual
contracted in his or her private capacity.
I don't know who is requesting the message, but it a lawsuit is
involved, wouldn't the plaintiff or defendant have to serve a subpoena
on the individual's wireless service provider? Or on the private
individual, to get his or her cell phone? There's no point in any party
in litigation serving you with a subpoena or law enforcement using a
search warrant if the record is held by a third party, the wireless
service provider.
Again, without knowing if this litigation involves two private parties,
or if the government is involved, or any of the details (which I would
understand you couldn't share), I still think you need to talk to -- or
consult more extensively with -- a lawyer who is up on these things.
There are all kinds of laws that apply to email and voice mail (the
Stored Communications Act, the Electronic Communications Privacy Act).
A lawyer should be able to fill you in on what applies in this specific
case.
For related issues, see these two articles, neither of which discusses
precisely what you're describing but do discuss some recent case law,
searching voicemail and e-mail, etc:
http://www.nixonpeabody.com/copyright_article.asp?ID=54&PubType=A
and
www.co.alameda.ca.us/da/pov/documents/voicemail.pdf
Maarja (just my personal reaction, off the top of my head)
>>> [log in to unmask] 08/05/05 12:49 PM >>>
I have a request to collect( for potential litigation) a voicemail
message from a private cell phone.
Has anyone had experience doing this in the past. what methods did you
use to collect the message?
We want to get the actual voice recording, not a transcript.
Any help I can get is greatly appreciated.
Deb Voronkov, CRM
Records and Information Management Coordinator The Scotts Company
14111 Scottslawn Road
Marysville, OH 43041
Telephone: (937) 578-5466
Fax: (937) 644-7568
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