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Discovery: voice-mail recording admissible

What happens when a speaker leaves a voice-mail message for an attorney, whose recording device doesn’t shut off?

The message left on the machine can come into evidence in a real estate case, according to Loudoun County Circuit Judge Thomas D. Horne. In Pacific Century Development & Realty Inc. v. Wheatland Farms LLC (VLW 005-8-197), a developer is asking for specific performance of a contract to buy a vineyard.

On March 28, Horne handed down discovery rulings in the case, including denying the plaintiff developer’s motion in limine to exclude evidence of the conversation between two parties to a planned three-party call that was inadvertently left on the attorney’s voice mail.

The parties apparently planned a three-way call. When the attorney’s voice mail answered, the callers left a message. But “the device, unbeknownst to the parties to the conversation, continued to record a conversation between the two parties,” Horne wrote in his March 28 decision (VLW 007-8-112).

Any lawyer who has had her voice mail roll over on a long-winded caller knows what she is hearing is a monologue, not a conversation. The law agrees, according to the court.

Virginia’s statute on using recorded conversations, Va. Code § 8.01-420.2, deliberately uses the word “conversations,” not “communications,” which doesn’t cover the one-way message left on a voice mail.

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