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What you don't know can hurt you: How nonverbal communication in technology is disrupting litigation.

Byline: Gabriella E. Ziccarelli

You know the scenario all too well--you have just gotten off the phone with your outside counsel, and you are beginning to strategize the first stage of discovery in the litigation your company is involved in. Custodial interviews, document collection, and scheduling depositions are on your not-so-distant to do list.

But, check that to-do list again. Do you have a reminder to ask your employees what methods of communication they use on company devices (e.g., company issued cell phones and company email?) and whether or not they use emojis in their messages? If it's not on your list--it's time to add it now.

Even though a bulk of daily communication occurs digitally, our expression is becoming increasingly nonverbal: emoji (a pictograph) and emoticons (a facial representation, used to convey emotion in a text only medium such as :-)) are used frequently for communicating. Although these nonverbal forms of expression come up more often in personal non-work related communications, there is no dearth of emoji and emoticon usage in the workplace. How and when these nonverbal communications are used can make or break a case.

Corporate counsel, in conjunction with outside counsel, must prepare the evidentiary record in their litigations with an awareness of not only what their employees are saying, but how they are saying it. Identifying which custodians may have records that contain communications with emojis or emoticons will allow counsel to more effectively pinpoint those pieces of evidence that are likely to be misconstrued, or alternatively, work to the benefit of the company's case. The best offense truly is a strong defense.

Unfortunately, the process may be an involved one. But the investment could be well worth it. E-discovery systems traditionally only account for text-based communication, and although emoticons may be searchable, it is nearly impossible to create search terms that account for Unicode emoji and all of the emoji variations. (The dancing emoji on Apple is a lady in a ruffled red dress, whereas the Samsung emoji is a gentleman in casual clothes). This means corporate counsel will need to pinpoint those custodians that use emojis to communicate from the outset of a case. And if that particular custodian's communications are of importance to the claims at issue in the litigation, it may be worth searching through those documents with a fine toothed comb, versus only searching based on narrow search terms where these kinds of communications may slip through the cracks. Although it may be more costly at the document review stage, it will be worth the investment to avoid risk, assess the strength of your case, and get to the evidence before your opponent raises it to your surprise (and potential dismay).

Once evidence containing emojis is found, counsel needs to be cognizant of which platform an emoji was sent on and received on. This can entirely change the perception of the message conveyed by the emoji because different systems represent the same Unicode emoji completely differently. Without systems and technologies that allow attorneys to capture relevant evidence that may be nonverbal, cases may be proceeding with missing evidentiary links that could assist a party in winning its case. And so, until technology adjusts to match our existing communication styles, counsel needs to step up their game in how they prepare and analyze their cases.

Indeed, this nonverbal disruption of years of primarily verbal and text-based communication is changing not only how we prepare, but also how we present our cases in court. Nonverbal communication in the courtroom used to be exclusively that which jurors picked up from a witness's tone and demeanor on the witness stand. Now -- it is so much more.

Nonverbal communication evokes a more subjective meaning than verbal communication. It is not restricted to the confines of definitions, but rather expanded by the sender and receiver's perceptions, experiences, and context. A purported "smoking gun" text message emoji chain presents a unique problem. What emoji evidence means to the sender, may not have meant the same thing to the receiver, let alone the same thing to a court or jury. In the near future, testimony on the intended meaning of emojis may carry great weight in deciding a case.

Nonverbal communication in litigation evidence is not just topical -- it is crucial to a company's success in litigation. These issues are presenting themselves in existing cases, and with billions of emoji being used annually in all forms of communication (e.g., text, email, social media), it's only a matter of time before these issues become a regular occurrence in modern litigation.

Take for example, in Lenz v. Universal Music Corp., a case where mother Stephanie Lenz uploaded a video to YouTube of her baby dancing to a Prince song and in response Universal Music issued a takedown notice for copyright infringement. Lenz argued that she had been "substantially and irreparably injured" by the takedown notice. Universal Music's position was Lenz argued in bad faith that she had been harmed because she used a winky face "just kidding" emoji in an exchange with her friend, where her friend wrote: "love how you have been injured Cysubstantially and irreparably' ;-)." Lenz, in turn, responds, "I have ;-)." Lenz replied she was simply mirroring her friend's winky face - and the Court sided with Lenz.

The time is now to revise your in-house litigation to-do list. Although the rules and procedures that govern "modern" litigation were built on evidence of the verbal (spoken and written) word --savvy litigators and corporate counsel can include nonverbal communication strategy as a part of a company's litigation tactic to stay ahead of the curve and the opposition.
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Publication:Inside Counsel Breaking News
Date:Jun 13, 2016
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