Digital Etiquette v. Documenting The File
Here at Abnormal Use, we are all about online culture. Accordingly, we must comment upon a recent New York Times blog post by Nick Bilton entitled “Disruptions: Digital Era Redefining Etiquette.” Brought to our attention by a Twitter user, the article posits that the “worst offenders of all” are “those who leave a voicemail message and then email to tell you they left a voicemail message.” It’s true that few still listen to voicemail messages. This trend likely frustrates many parents leaving messages for their children (as Bilton notes).
However, in litigation, it may actually be advisable to send a follow-up email after leaving someone a voicemail, particularly if that person is, intentionally or otherwise, making themselves overly difficult to reach. There are those with whom a lawyer must communicate on a case who do not often wish to return calls. Perhaps it is an opponent who has failed to timely respond to discovery responses. Perhaps it is a third party whose documents you have subpoenaed. Perhaps it is a witness who is reluctant to appear for a deposition. Perhaps it is an opposing counsel who simply has other priorities than the case at issue. Whatever the case, simply leaving voicemails, inevitably lost in the void, does not preserve one’s ability to argue later that one attempted to communicate with an individual. Assume that one must later rely upon evidence that one attempted to reach out and communicate with such a person, whether it be in a motion to compel or otherwise. Oftentimes, memorializing the fact that one left a message, particularly if it was ultimately unreturned, creates a record both of attempts to communicate and the recipient’s failure to respond.
Further, you may not initially suspect when you may need to later rely upon such evidence. Occasionally, unforeseen issues surface, and you, the litigator, will be pleased that you created such a record of communications and attempts which you can later rely upon.
(Hat tip: Garance Franke-Ruta).