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A recorded client call can provide evidence of instructions, advice, or authorization. However, its evidentiary value may be called into question if your firm cannot account for the file's origin, preservation, and subsequent transfers.
Chain of custody documents the recording's history, identifying its custodians and the actions taken during preservation, review, and production.
For attorneys, recording a conversation is only the initial step. Your firm must also establish procedures for preserving the audio and documenting its treatment.
This article zeroes in on the chain of custody for recorded client calls. It also talks about how iPlum's phone system for lawyers can improve your firm's management of recorded client communications..
Table of Contents
1. What does the chain of custody establish for a recorded client call?
2. How should your firm document the chain of custody for recorded client calls?
3. Use iPlum as the starting point for your recording custody process
5. Build your recording custody process from the first call with iPlum
What does the chain of custody establish for a recorded client call?
Chain of custody establishes the documented sequence of possession, storage, and transfer connecting a recorded call to the audio submitted for review.
It allows your firm to explain the file's history and address questions about its identity and integrity.
For a recorded client call, the documentation should establish:
- Origin: The call associated with the recording, including its date, time, business line, and identified participants.
- Custodians: The individuals responsible for preserving, exporting, or transferring the audio.
- Storage history: Where the firm retained the recording and any preserved copies.
- Transfers: When the file changed custody, who received it, and why.
- File treatment: Any conversion, editing, redaction, or other processing, with distinctions between the preserved audio and derivative copies.
Together, these records allow your firm to demonstrate that the audio presented for review is the recording it claims to be.
How should your firm document the chain of custody for recorded client calls?
Your firm should document custody when it first preserves a recording, then update the record as authorized individuals access, copy, or transfer the file.
The best practice is to assign responsibility to a designated attorney or records administrator so the recording and its custody history remain traceable through review and production.
Here's a breakdown of that process:
Identify the call and its source
Start with the information connecting the audio to the client conversation. Record the date, time, time zone, business number, call duration, and recording service.
Identify the participants using information your firm can substantiate. A telephone number alone doesn't establish who spoke. The attorney who participated can identify the speakers and explain the circumstances of the conversation.
Also, note the recording method and any documented notice or consent. If the service records only part of the conversation, describe that limitation. Don't label a partial recording as the complete call.
Preserve the associated call log alongside the audio so a reviewer can compare both records.
Preserve the recording before preparing review copies
Retain the source recording in its account and preserve an initial download in a firm-approved location. Restrict permission to modify or delete the preserved file, then create separate copies for transcription, excerpts, or other review work.
At the time of export, record:
- The recording identifier and associated client file number.
- The source account and business line.
- The name of the individual performing the export.
- The export date, time, and time zone.
- The downloaded filename and format.
- The storage destination.
Distinguish the call date from the download date. A computer can assign a new creation date to a downloaded file, so don't assume its local file properties are established when the conversation occurred.
Also, check the service's deletion schedule before depending on continued account access. Arrange preservation before a scheduled deletion or account closure that affects the recording.
Calculate a hash for the preserved download
A cryptographic hash is a value calculated from a file’s contents. Your IT administrator or forensic provider can calculate a SHA-256 hash while preserving the downloaded recording and record the value along with the date and the tool used.
Later, recalculating the hash allows your firm to compare the file against the initial preserved version.
A matching value provides evidence that its contents haven't changed since the first calculation. NIST recommends hashing digital evidence near the point of collection and securely storing the values.
Document access and transfers as they occur
Limit access to authorized individuals and retain available access records. When transferring a recording, document the sender, recipient, date, purpose, transfer method, and exact file supplied.
For example, if an attorney sends audio to an outside expert, the custody entry should identify the expert and the version received. Ask the recipient to confirm receipt and document any subsequent processing.
Use the firm's approved transfer channel and retain the transfer confirmation with the custody record. If the recipient downloads the audio, account access records alone won't document what happens to that downloaded copy.
Also, record changes in storage location. Moving a recording into case management software creates another event your firm should be able to explain.
Label excerpts and transcripts separately
A transcript, redacted recording, or enhanced audio file serves a different purpose from the preserved recording. Give those versions distinct identifiers and record which source file produced them.
For an excerpt, specify the beginning and ending timestamps. For a redaction, document the portions removed and the reason in an appropriately restricted record.
Similarly, record who prepared or corrected a transcript. Check speaker labels, names, dates, and statements concerning client instructions against the audio.
Retain the preserved recording after creating these versions. Review confidentiality and privilege before authorizing external disclosure, including disclosure to a transcription provider.
Reconcile the file and custody record before production
Before production, compare the selected recording with the preserved version and confirm that the custody record accounts for relevant transfers and processing.
Check the following:
- Does the audio correspond to the identified call?
- Are any excerpts, redactions, or conversions documented?
- Can your firm identify the individuals responsible for the recorded transfers?
- Does the production copy match the version approved for disclosure?
If information is missing, investigate through available logs, transfer receipts, and custodian accounts. Document any later reconstruction with its date and source, and don’t present a reconstructed entry as a contemporaneous record.
Use iPlum as the starting point for your recording custody process
A custody record needs an identifiable source.
For client calls, your firm needs to know which business line received or placed the call, where the recording resides, and how an authorized custodian can retrieve it.
iPlum gives your firm a starting point for recording client calls and documenting their subsequent custody.
With iPlum, you can:
Connect the recording to an identifiable business call
iPlum gives attorneys a separate business line on their existing smartphones. Client calls made through that line have a professional number associated with them, separate from the attorney's personal calling activity.
For custody documentation, your firm can record the assigned number and account holder alongside the client file reference. If a dispute concerns a particular conversation, the custodian then has a defined account to examine.
iPlum's automatic call recording records incoming and outgoing business calls.
The service also provides a standard announcement notifying the other party about the recording. Your firm can incorporate the announcement into its recording procedures alongside the consent requirements applicable to the conversation.
The distinction between the business call and its later export is important. Record the call's identifying information first, then document the download as a separate event.
Doing so preserves the chronology from the conversation to the file your custodian receives.
Assign responsibility for recordings held in the account
When several attorneys record client calls, your firm needs to establish who administers their accounts and who takes responsibility for preservation requests.
An iPlum multi-user account allows your administrator to add users, manage their lines, restrict certain feature permissions, and administer centralized call recordings. Your firm can use those arrangements to designate responsibility for locating recordings associated with particular attorneys.
In addition, iPlum provides configurable account security settings, including two-factor authentication, password requirements, and app passcode protection. The service also encrypts data at rest and in transit.
These protections enable your firm to manage access to the account and stored communication data.
Your internal procedure should identify:
- Who receives requests to preserve a recorded call
- Who locates and exports the requested audio
- Who records the export and accepts custody of the downloaded file
Assigning those responsibilities provides attorneys with a defined process for when a recording requires review. It also establishes who should explain the actions recorded in the custody history for retrieval and preservation.
Document the handoff from iPlum to your firm's records
Authorized users can play recordings through the iPlum app or portal and download audio files through the portal. That way, a custodian can review the conversation to confirm its relevance, then preserve the downloaded file using the procedures described above.
Your firm can also download usage logs as CSV files. The portal allows users to select a particular user and month when retrieving those records. Preserve the relevant call information alongside the audio so reviewers can examine both.
After downloading, record the exporter, date, filename, and destination. If your firm uploads a copy to case management software, document that transfer and identify the preserved version it came from.
iPlum also provides the recording and retrieval functions. Your firm's custody record then accounts for the audio as it passes into internal review, expert analysis, or production.
Frequently asked questions
Does recording a client call automatically establish a chain of custody?
No. Recording creates an audio file, but your firm must also document its origin, custodians, storage, and transfers to account for its treatment from initial preservation through review and production.
Who should maintain the custody record for a client call recording?
A designated attorney or records administrator should maintain the custody record. Anyone who exports, transfers, or processes the recording should provide details promptly so the administrator can document those actions.
Does downloading a recording break its chain of custody?
No. Downloading doesn't automatically break the chain of custody. Document who downloaded the recording, when, where it came from, and where they stored it. Then, preserve that file before creating copies.
Can a transcript replace the original call recording?
No. A transcript records words but doesn't preserve the audio's tone, pauses, or overlapping speech. Retain the recording and document who prepared the transcript and any corrections made during review.
Build your recording custody process from the first call with iPlum
When a client's instructions come under scrutiny, your firm needs the relevant conversation and an account of how it preserved the recording.
Establishing responsibilities before a dispute arises puts your attorneys in a better position to explain both.
iPlum provides automatic business call recording and portal access for retrieving audio. Your firm can incorporate those functions into its preservation procedures and document exports, transfers, and subsequent reviews.
Click the link below to sign up for iPlum, record those conversations, and make the audio available for your firm's documented custody and preservation process.
