Use of memes, gifs and emojis has changed the landscape for eDiscovery

As the digital universe continues to expand, the rise of remote work over the past two years has accelerated an already growing trend toward the use of memes, gifs and emojis in digital communications, which is changing the landscape for eDiscovery. Not only are emails texts and chats subject to investigation, but all forms of embedded images may now be admissible as evidence in court so legal departments face growing challenges in gathering and interpreting material.

Gifs, emojis and memes can sometimes change the meaning of a message, conveying complex emotions such as humour, sarcasm or fear, which is relevant in litigation just like any other form of digital communication.

“Document reviewers now have to interpret what they see as opposed to what they read so this will be a ramp for folks. Two reviewers can totally interpret the same image differently,” says Shana Simmons, general counsel at eDiscovery software company, Everlaw. While memes, gifs and emojis can be playful, they can also be misconstrued, so it is very challenging to interpret messages containing embedded images. A gif, meme or emoji might make the tone of a message more casual, or a hand-shake image might imply that an agreement has been made, for example.

 “Your message might say ‘this is fine’ but then if you have a meme of a room on fire, the words probably have the exact opposite meaning,” says Simmons. “Employees come from many walks of life, and they bring a diverse array of viewpoints to the table so one person’s idea of a joke is another person’s offensive depiction or tone deaf communication or politically unwelcome message.”

Organizations would be wise to have a technology partner that continuously works to display and process new formats, Simmons advises. Legal departments should communicate with employees about what they need to make the process more manageable. It may also be beneficial for general counsel to establish a set of rules for the use of emojis, memes and gifs within an organization.

Training given to employees should cover more than just awareness about the words used in emails. It should also include a discussion about the use of emojis, gifs and memes. Not only will technology have to evolve to stay on top of digital messaging, but visual literacy will have to evolve, so organizations must ensure that such training is inclusive and nuanced, Simmons says.

“The digital universe is continually expanding, creating what seems like an infinite amount of data, so it behooves all of us as legal tech providers to figure out how to work with those different types of data,” says Simmons.

“As employers we’ve all had to elevate our level of wokeness within the past year and we’ve really had to think about creating more inclusive workplaces, and as a result I think we need to think more about all these types of communications.”

Everlaw offers advanced eDiscovery software to help law firms and in-house legal teams more efficiently solve the challenges of discovery and investigations.