We have all used emojis.  Whether in our text messages or in our IMs, these wordless communications are commonplace.  In fact, by some estimates, more than 10 billion emojis are sent every day in various electronic messaging mediums. With the use of chat and mobile platforms only increasing, what do lawyers and eDiscovery professionals need to know about these marks and how they impact the discovery process and the courtroom?

What is an Emoji?

Emojis are small cartoon images that are interpreted and supported at the discretion of each application developer.  The predecessor to the emoji was the emoticon.

Why Are Emojis Complicated?

Anyone reading eDiscovery content knows that these tiny little carton pictures while often playful and cute, can be a challenge to identify, collect and process.  Part of the challenge is volume driven but part is platform driven.  Specifically, the Unicode Consortium, which is the standards body that allows software to recognize text characters and display them uniformly, acknowledges thousands of different emojis. But that number includes variables of the same image – for example different genders and skin tonality. And while much work has been done to standardize emojis, different systems support different emojis.  For example, while a slice of pizza is likely recognized universally, in reality a slice from the popular Domino’s® franchise looks different from a slice bought at the local brick oven pizza parlor.  Similarly, when dealing in emojis, a slice of pizza viewed on one device will look different than one viewed on a device by a different company.  For those of you who have ever shared a text among different phone operating system users, you have undoubtedly learned this lesson before now.  Indeed, if you ever received the question mark inside the rectangular shaped box – which appears when the recipient’s application does not support the sender’s application – the emoji image is indecipherable.   Complicating this phenomenon is that different instant messaging systems have proprietary emojis and additionally allow users to create their own emojis – none of which are acknowledged by Unicode.org. Add to that the fact that emojis often evolve.  For example, the “pistol” emoji was changed in 2016 by one operating system to a less dangerous version of itself (i.e., a “water pistol” or “toy gun”).  But, when received by a different platform, that water pistol or toy gun emoji might still appear to be a regular “gun” or “pistol” emoji.

Emojis in Litigation

Assuming you have been able to secure during discovery relevant emojis, use during litigation can be paved with surprises.  In fact, once a wordless communication (i.e., an emoji) is admitted into the record, courts and juries will look to the surrounding circumstances to interpret the communication.  And, while this analysis generally includes scrutiny of the accompanying text and whether the emoji alters the meaning of the message, how does one account for platform interpretation issues?  Meaning – what if the water gun I sent from my device is received by another device in a way that reflects a menacing weapon thereby manifesting a different intent to the recipient than what was intended by the sender.  At first glance, the emoji may seem innocuous, such as a simple smile to communicate happiness but taken in the context or community in which the communication is used, the meaning may be interpreted differently by the sender and/or recipient.  Indeed, emojis should not be considered a universal language having universal meaning and, like certain physical actions, the meaning of symbols can vary by community or culture.  Consider for example that the “thumbs up” emoji is considered vulgar in many countries in the Middle East yet typically considered a positive expression in most other countries.[1]

Because the complexities of interpreting the meaning and intent of the emoji in court is exacerbated by competing platforms, focused inquiry on the sender’s and recipient’s intent, surrounding circumstances and accompanying text may be critical. Unfortunately, 1 + 1 does not always equal 2 and things may not be as they may appear merely because of a certain electronically generated animated face.

[1] A few cases involving emojis include Ghanam v. Does (where the Michigan Court of Appeals had to analyze the circumstances surrounding the use of the emoji “sticking out its tongue” within a communication in a defamation case); Commonwealth v. Danzey, (smile face embedded in social media did not immunize claims defendant stalked and harassed victim where wording demonstrated criminal intent); Kryzac v. State, (Tennessee case where “frowning face” emoji used as evidence of relationship between defendant and victim); State v. Disabato, (defendant in Ohio was convicted of telecommunications harassment for sending unwanted text messages, some of which included “rodent” emojis); Commonwealth v. Foster (Pennsylvania defendant on probation for a drug-related conviction raised the suspicion of his probation officer when he posted photographs depicting guns and money along with three “pill” emoji).

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It’s a simple phrase that makes us feel like we’re living in the future promised us by The Jetsons and Star Trek. Alexa, Siri, Google Assistant—all Artificial Intelligence (AI) designed to make our lives just a little easier. Need a recipe for beef brisket? Just ask Siri. What time is the movie going to start? Ask Alexa. Need some music for your dinner party? Google Assistant has you covered, just ask. But how are Alexa and Siri at your beck and call? The answer is they’re always listening. What does that mean for you? It means that every sound they hear is analyzed and indexed.

Data Privacy

Privacy is the next big frontier in eDiscovery. Data privacy laws are constantly evolving. The General Data Protection Regulation (GDPR) (effective May 25, 2018) is the European Union (EU) and European Economic Area (EEA) law that relates to data protection and privacy. It also applies to the transfer of personal data outside of the EU and EEA. (The University of Michigan has a great timeline of the history of privacy law.) Practically, your personal data is the most valuable asset you have.

Understanding existing and pending privacy legislation is important. Currently 3 states have passed legislation, including California; 9 states, including Pennsylvania, have active bills; and 15 states have introduced legislation that ultimately died or was postponed. At some point there could be federal legislation that governs privacy similar to GDPR.

Do these devices violate wiretapping laws? Unclear.

An issue worth exploring is whether these devices fall under the purview of wiretapping laws. In Hall-O’Neil v. Amazon, a class action case in the Western District of Washington, Plaintiffs allege that Alexa enabled devices collected and recorded confidential conversations with minors. Hall-O’Neil v. Amazon.com Inc. et al., 2:19CV00910. It is important to keep an eye on these and other similar cases to understand the privacy issues at play with these types of devices.

How Do We Handle Evolving Privacy Issues in the Legal World?

So, what does this mean for legal professionals? One thing to consider is attorney-client privilege issues. With the global pandemic requiring a major shift to working from home you should carefully consider the ramifications of having a virtual assistant in your home while you’re working on client matters—you may be violating attorney-client privilege. Out of an abundance of caution you probably want to unplug your virtual assistant before getting to work.

On the flip side, if someone has a virtual assistant and it was present during a key meeting or event you might want to investigate subpoenaing the recordings, which carries with it additional issues such as who owns the data related to virtual assistants, how long is the data retained, and how do you obtain it.  Law enforcement agencies have been subpoenaing virtual assistant data for years to obtain voice clips and time stamped logs of user activity in crime investigations.

What’s the Best Practice?

With so many questions and so few real legal precedents it’s best to proceed with caution with the use of these devices. It’s also very important, from an eDiscovery perspective, to make sure you’re aware of the potential for important data to be found on these devices during the discovery process.

Article by Gretchen E. Moore, Lydia A. Gorba, Lynne Hewitt and Maryann Mahoney of Strassburger, McKenna Gutnick & Gefsky

For more articles on cybersecurity, please visit here.

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Can this happen to your client? Your client gets sued, is forced to spend over $100,000 on eDiscovery despite you making all the right objections, you deliver a clean victory on dispositive motions and the District Court awards costs of … $200. Here is what happened in the Fourth Circuit and what you can do to help your clients avoid the same fate:

The Fourth Circuit just decided the scope of taxable eDiscovery costs under 28 U.S.C. § 1920(4) in Country Vintner of North Carolina v. E. & J. Gallo Winery, Inc., __ F.3d __, 2013 WL 1789728 (4th Cir. Apr. 29, 2013). Section 1920(4) allows the District Courts to “tax as costs … [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Id. ¹   Under Federal Rule of Civil Procedure 54(d)(1), the cost of making copies “should be allowed to the prevailing party.” As an initial matter, the Fourth Circuit concluded that section 1920(4) applies to the costs related to documents produced in discovery – not just used at trial or in connection with a dispositive motion. Country Vintner, 2013 WL 1789728, *7. The Fourth Circuit then examined the meaning of “making copies,” and held that section 1920(4) “limits taxable costs to … converting electronic files to non-editable formats and burning files onto discs.” Id., *9. ²   In reaching that conclusion, the Fourth Circuit explicitly rejected the argument that “ESI processing costs constitute[d]” “making copies” under Section 1920(4). Id., *7. As a consequence, Appellant Gallo was awarded only $218.59 out of the $111,047.75 in eDiscovery costs it sought.

What does that mean?

Appellant Gallo sought more than $70,000 for “indexing” and “flattening” ESI – processing methods that extracted irrelevant files and duplicates, made the remaining data searchable, and organized the data; spent more than $15,000 extracting and organizing metadata and preparing it for review; less than $100 on electronic bates numbering; and over $20,000 on quality assurance and preparing the document production. None of these costs were taxed. Instead, Gallo received only $178.59 to convert certain native files into TIFF and PDF format and another $40 to burn images onto CDs. While the documents could not be “copied” without all of the processing that preceded it, such processing costs will not be shifted through a bill of costs. Id., *8-9 (citing Race Tires Am., supra n. 2, 674 F.3d at 169).

What lessons can we learn?

The Fourth Circuit seems to recognize the harshness of its ruling and provides two helpful clues for future litigants seeking to manage their eDiscovery burdens. The court first observes: “That Gallo will recover only a fraction of its litigation costs under our approach does not establish that our reading of the statute is too grudging in an age of unforeseen innovations in litigation-support technology.” Id., *9. Then, the court leaves open the question of whether the allowable costs of production might include the processing costs had the parties “clearly agreed to the production of ESI on a particular database or in native file format.” Id., *9 n. 20 (citing In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1365–66 (Fed. Cir. 2011) (holding that $234,702.43 for the cost of an electronic database which the parties agreed to use for document production would have been allowed, but for the parties’ agreement to share costs)). Next, the court points out that, where discovery costs are excessive, the responding party can move for a protective order and, if that motion is denied (as Gallo’s motion was denied), then the responding party “can appeal that decision” Id., *9; id., *9 n. 21 (noting that Gallo had not appealed the denial of its motion for protective order).

Lesson #1: While it is not entirely clear how the parties’ agreement to utilize a particular format or database alters the conclusion that processing is not “making copies,” the Fourth Circuit seems to suggest that it might. ³  So, any party seeking to shift its eDiscovery costs should consider agreeing with the other side regarding the format or database to be used to handle the parties’ productions.

Lesson #2: While it is not entirely clear whether parties are entitled to file an interlocutory appeal with respect to the denial of a motion for protective order, the Fourth Circuit seems to urge parties to do so. ⁴  Either the court is encouraging interlocutory appeals before the ESI expenses are incurred, or the court is suggesting that a final judgment (for either party) does not moot the trial court’s refusal to shift pre-trial eDiscovery costs.

 ¹ Because appellant Gallo’s eDiscovery costs neither involved authentication of public records nor demonstrative exhibits – two potential meanings of exemplification – the Fourth Circuit did not define the meaning of exemplification in this case.  Country Vintner, 2013 WL 1789728, *10.

 ² In reaching that conclusion, the Fourth Circuit aligned itself with the Third Circuit’s approach in Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012).

³  In distinguishing In re Ricoh Co., the Third Circuit explained: “we have acknowledged that the costs of conversion to an agreed-upon production format are taxable as the functional equivalent of ‘making copies.’ It is all the other activity, such as searching, culling and deduplication that are not taxable.” Race Tires Am., 674 F.3d at 171 n.11.

 ⁴ On one hand, discovery orders against a party are not immediately appealable. See, e.g., Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537 (4^th Cir. 2004). On the other hand, most discovery orders will be moot by the time a final order is entered. See, e.g., E. H. Reise v. Bd. of Regents of the Univ. of Wisconsin, Sys., 957 F.2d 293, 295-296 (7^th Cir. 1992).

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The ABA Section of Science and Technology Law is pleased to invite you to the E-Discovery and Information Governance National Institute at Stetson’s Tampa Law Center in Tampa, Florida January 23–25, 2013. This National Institute will provide attendees a rare opportunity to sharpen their skills in electronic discovery and digital evidence (EDDE). The curriculum will consist of case studies, a mock 26(f) meet-and-confer, a mock spoliation hearing, and panel discussions with luminaries in the field.

The faculty, consisting of judges, legal practitioners, technologists, and forensics experts will:

• Present information on the current thought on the handling of electronically stored information (ESI), including descriptions and interpretations of judicial decisions
• Analyze recent judicial decisions on the production of ESI and the key rules from the Federal Rules of Civil Procedure that impact e-discovery
• Provide invaluable insights on how best to prepare their technical staff and information systems to respond to requests for ESI
• Cover ESI issues for a variety of business sectors including the HIPAA HITECH requirements that mandate an enhanced standard of care for the parties producing and receiving electronic health records (EHR)
• Describe how new search technologies will lead to cost efficient, yet defensible, automated production of relevant ESI
• Examine the e-discovery implications of the increasing use of encryption, social media, and data stored in the cloud Attendees will walk away with an understanding of how the handling of ESI has evolved and will present a hopeful prognosis that expected improvements will provide cost efficient, but defensible, management of ESI.

Attendees will walk away with an understanding of how the handling of ESI has evolved and will present a hopeful prognosis that expected improvements will provide cost efficient, but defensible, management of ESI.

This unique blend of faculty, case studies, analysis of judicial decisions, clear explanation of where technology is and where it is going, and informative yet entertaining mock hearings presented in a two-day package offer an experience matched by no other conference. This is a one-of-a-kind program you will not want to miss.

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The ABA Section of Science and Technology Law is pleased to invite you to the E-Discovery and Information Governance National Institute at Stetson’s Tampa Law Center in Tampa, Florida January 23–25, 2013. This National Institute will provide attendees a rare opportunity to sharpen their skills in electronic discovery and digital evidence (EDDE). The curriculum will consist of case studies, a mock 26(f) meet-and-confer, a mock spoliation hearing, and panel discussions with luminaries in the field.

The faculty, consisting of judges, legal practitioners, technologists, and forensics experts will:

• Present information on the current thought on the handling of electronically stored information (ESI), including descriptions and interpretations of judicial decisions
• Analyze recent judicial decisions on the production of ESI and the key rules from the Federal Rules of Civil Procedure that impact e-discovery
• Provide invaluable insights on how best to prepare their technical staff and information systems to respond to requests for ESI
• Cover ESI issues for a variety of business sectors including the HIPAA HITECH requirements that mandate an enhanced standard of care for the parties producing and receiving electronic health records (EHR)
• Describe how new search technologies will lead to cost efficient, yet defensible, automated production of relevant ESI
• Examine the e-discovery implications of the increasing use of encryption, social media, and data stored in the cloud Attendees will walk away with an understanding of how the handling of ESI has evolved and will present a hopeful prognosis that expected improvements will provide cost efficient, but defensible, management of ESI.

Attendees will walk away with an understanding of how the handling of ESI has evolved and will present a hopeful prognosis that expected improvements will provide cost efficient, but defensible, management of ESI.

This unique blend of faculty, case studies, analysis of judicial decisions, clear explanation of where technology is and where it is going, and informative yet entertaining mock hearings presented in a two-day package offer an experience matched by no other conference. This is a one-of-a-kind program you will not want to miss.

The post The 2013 E-Discovery and Information Governance National Institute January 23 – 25, 2013 appeared first on The National Law Forum.

The ABA Section of Science and Technology Law is pleased to invite you to the E-Discovery and Information Governance National Institute at Stetson’s Tampa Law Center in Tampa, Florida January 23–25, 2013. This National Institute will provide attendees a rare opportunity to sharpen their skills in electronic discovery and digital evidence (EDDE). The curriculum will consist of case studies, a mock 26(f) meet-and-confer, a mock spoliation hearing, and panel discussions with luminaries in the field.

The faculty, consisting of judges, legal practitioners, technologists, and forensics experts will:

• Present information on the current thought on the handling of electronically stored information (ESI), including descriptions and interpretations of judicial decisions
• Analyze recent judicial decisions on the production of ESI and the key rules from the Federal Rules of Civil Procedure that impact e-discovery
• Provide invaluable insights on how best to prepare their technical staff and information systems to respond to requests for ESI
• Cover ESI issues for a variety of business sectors including the HIPAA HITECH requirements that mandate an enhanced standard of care for the parties producing and receiving electronic health records (EHR)
• Describe how new search technologies will lead to cost efficient, yet defensible, automated production of relevant ESI
• Examine the e-discovery implications of the increasing use of encryption, social media, and data stored in the cloud Attendees will walk away with an understanding of how the handling of ESI has evolved and will present a hopeful prognosis that expected improvements will provide cost efficient, but defensible, management of ESI.

Attendees will walk away with an understanding of how the handling of ESI has evolved and will present a hopeful prognosis that expected improvements will provide cost efficient, but defensible, management of ESI.

This unique blend of faculty, case studies, analysis of judicial decisions, clear explanation of where technology is and where it is going, and informative yet entertaining mock hearings presented in a two-day package offer an experience matched by no other conference. This is a one-of-a-kind program you will not want to miss.

The post The 2013 E-Discovery and Information Governance National Institute January 23 – 25, 2013 appeared first on The National Law Forum.

In its continuing efforts to ease the financial burdens of litigants, the Ad Hoc Committee for Electronic Discovery of the U.S. District Court for the District of Delaware recently amended the court’s Default Standard for Discovery (the Standard). This revision continues a recent trend on the part of the federal courts, which have attempted to lower the costs associated with e-discovery by offering guidelines designed to streamline the process. Some examples of this trend include the following:

• In September 2011, the U.S. Court of Appeals for the Federal Circuit unveiled a Model Order for E-Discovery in Patent Cases designed to reduce discovery costs.[1]

• In November 2011, the U.S. District Court for the Southern District of New York implemented Standing Order M10-468, In re: Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York, which details the court’s expectations regarding e-discovery.[2]

• In January 2012, Chief Judge Randall R. Rader of the Federal Circuit, together with three other members of the Federal Circuit Advisory Council, presented a proposal to the U.S. International Trade Commission (USITC) to streamline e-discovery in ITC section 337 investigations.[3]

• This month, the judges in the U.S. District Court for the Eastern District of Texas intend to discuss a committee report on the Federal Circuit Model Order on E-Discovery in Patent Cases to address what U.S. District Judge Leonard Davis—who will become chief judge of the Eastern District next year—calls “a very legitimate concern, primarily around the cost of email production.”[4]

• The U.S. Court of Appeals for the Seventh Circuit will complete Phase Two of its E-Discovery Pilot Project in May2012. There are 18 district court judges, 23 magistrate judges, and three bankruptcy judges from federal courts in Illinois, Wisconsin, and Indiana participating in Phase Two, which includes a model “Standing Order Relating to the Discovery of Electronically Stored Information,” also designed to develop best practices and reduce discovery costs.[5]

The Standard recently implemented by the District of Delaware provides parameters for the discovery of traditional paper records and electronically stored information (ESI), which are applicable until further court order or until the parties reach an alternative agreement. It contains provisions related to general e-discovery issues such as preservation duties, discovery conferences, privilege log protocols, and disclosure requirements, while also addressing patent-specific requirements, search methodologies, production formats, and metadata. The Standard also highlights the importance of cooperation, proportionality, and categories of information that litigants should discuss at the 26(f) conference.

Some of the more significant provisions of the Standard include the following:

• Specific categories of lesser known ESI “need not be preserved” absent good cause. These include forms such as “[d]eleted, slack, fragmented, or other data only accessible by forensics,” temporary Internet files, instant messages, voice messages, certain mobile device data, and network logs.[6]

• Preservation compliance steps “are protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).”

• A clawback provision for inadvertently produced privileged and/or work product information.

• The requirement that all parties provide a list, in order of relevancy, of the 10 custodians that they believe will contain the most discoverable information.

• Discovery timelines specific to patent litigation that provide for deadlines to produce or disclose core technical documents, claim charts, invalidity contentions, and invalidating references. After which, absent good cause, any further discovery is limited to six years prior to the complaint, unless related to prior art or “the conception and reduction to practice” of the invention at issue.

• The number of additional search terms the requesting party may ask be added to the search terms being used by the producing party is limited to 10. These additional terms must have a narrow focus and not simply contain product and company names.

• Production specifications are defined for file format and metadata, requiring that ESI be produced as text searchable image files with metadata fields specified in the Standard. Only Excel files, or other files not easily converted to images, should be produced in native format.

The Default Standard is available athttp://www.ded.uscourts.gov/SLR/Misc/Electronic-Standard-for-Discovery.pdf.

With federal courts across the country increasingly adopting standards, protocols, and model and standing orders designed to reduce e-discovery costs and foster cooperation between litigants, expect to see more such measures in the future. Attorneys should keep abreast of such trends in the courts in which they litigate and leverage them in negotiating a proportional, reasonable, and cost-effective discovery plan with the other side.

Copyright © 2012 by Morgan, Lewis & Bockius LLP.

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