A “document” is defined in Rule 31.4 CPR as “anything on which information of any kind is recorded”. Lawyers brought up in the days of paper disclosure, even those who have adjusted to electronic versions of those paper documents such as the source Word file, may overlook other things “on which information of any kind is recorded”.
At the top of the list comes recordings of telephone conversations. These days, our most mundane calls are preceded by a message warning us that our call may be recorded “for training purposes”. If that was indeed its only purpose, then the warning is little more than aural clutter to make us hate the company even more than we do already – most of us come across these messages when dealing with our ISP, utilities provider or similar organisation whose institutional incompetence extends to the erection of barriers against the customer. The added delay whilst some Estuary-accented trollop warns you about recordings certainly succeeds in putting me off making any call which is not vital, as is doubtless intended.
It is rather different when your call may involve making a contract – a financial trade or an insurance contract – perhaps including representations passing either way or a regulator’s compulsory warnings. One tends to think of these as being for the protection of the company making the recording, but that is obviously not always the case. As the caller, that recording may be your only evidence of what was said. Further, material or prejudicial evidence may be recorded going beyond the true purpose of the recording.
The subject comes up because of the successful claim, said to be worth £20 million, brought by the day trader Rajesh Gill, whose broker, Matthew Bomford, led him to believe that he had built up a substantial credit through successful trading. Gill relied on Bomford’s telephone calls because he did not see the statements sent to his Isle of Man address, and the transcripts appear to have been heavily relied on at trial.
It was not just Bomford’s representations which were recorded. The Times of 7 May carries the transcript of the telephone call in which Gill learnt from another employee of the broker that he did not after all have £10 million to his credit. There is an immediacy about the verbatim transcript which no other medium could convey.
According to the Daily Telegraph, a further recording between Bomford and another staff member allegedly provides evidence that Bomford took speed. Bomford denies this. The point of mentioning it is to point up the fact that information may lurk on the recordings which is collateral to the recording’s purpose but which may nevertheless be disclosable or useful. If people are unguarded in e-mails (as they are) how much more so are they on the telephone?
That is all very well, but how do you find the recordings? Lawyers may think that they can speed-read documents, but a 60 minute recording takes 60 minutes to listen to (perhaps my most miserable week as an articled clerk was spent doing just that with a cassette recorder with piano-key controls). You do not know if there is anything of value without listening to it all, or having the whole lot transcribed just in case.
Enter audio search technology. Autonomy is not the only company whose applications can search audio files, but I have seen it as the star turn at a couple of Autonomy functions recently – it was their technology which tracked down the evidence of rogue trader Jerome Kerviel’s €5 billion fraud at Société General. In broad terms, a searcher can use all the search functions available for text searching – key words, concepts or whatever – across audio files, and be delivered neat chunks of recording with markers to show the passages which met the search criteria.
One thinks of this as being relevant only to massive volumes. I think this is a misconceived approach. Given my point above about the one-to-one ratio between recording and listening time, audio files provide a measurable task – you can calculate the time, and thence the cost of listening to them. We are all going to have to learn how to estimate prospective time spent on a litigation task, because that is what will be needed for the costs management which Lord Justice Jackson is urging parties and judges to undertake (see Jackson launches costs management trial in Birmingham). Once you are put to the exercise of estimating the costs of searching audio, you may well decide that an automated approach is worth the investment.
First, however, you have to appreciate that the audio exists and may be material. The Gill story shows that there may be more useful stuff there than you expect.