Last week, I talked about some of my first takeaways from this year’s  Global Advanced eDiscovery Institute (“Georgetown”). This week, I share some more of my favorites! The emoji session was particularly fun and interesting!

• Emojis!!  Case law involving emojis more than doubled between 2018 and 2019, and 2020 is on track to further increase. Interestingly, most face emojis are used by predatory older men trying to lure young victims. Each platform (iPhone, Slack, Facebook, Office 365, and Teams etc.) has its own emojis which creates a cross-platform depiction diversity problem in interpretation. Also, emojis can be interpreted differently between the sender and the recipient (the devices could be different so the emoji looks different or recipient could just interpret it differently outright).

• Rapid-fire eDiscovery best practices points:
  • Stop relying on Oppenheimer Fund v. Sanders, in fact, you should not really cite to any pre-2015 discovery case because the Rules are very different today.
  • Some Covid-era things to keep in mind:
    • Beware of remote platforms: Are your clients recording meetings? Are chats enabled during meetings? All are potentially discoverable.
    • Where there is locally saved data, use remote collection kits. Turn to low tech options, if necessary, such as screen shots and photographing text messages.
  • Don’t overload the review panel. Studies have shown that after 7 options, effectiveness, speed and accuracy all decrease. Believe me, our entire team thanks you for this one – especially Charles and Regina!
  • Document all of your data preservation efforts. Document, document, document.
  • Use a Franken-document in TAR to find a document you have not yet seen but are looking for or hoping you will not find in your data set. Negative exemplars are important in training the TAR.

The major takeaways from Georgetown 2020 culminated for me in two points (1) U.S. discovery rules will need to change to meet data privacy and security concerns worldwide, and (2) we must (as we have in the past) adjust our practices to the rapidly changing chat universe in which we have found ourselves. And, I think, as discovery professionals, we have an ethical duty to lead these efforts.