The way people communicate and collaborate at work is continually changing. The use of collaboration apps had been increasing before the COVID-19 pandemic. Now, the use of these communication apps has increased to a point where over 80 percent of all employees now state they regularly use collaboration tools to communicate with other team members.
While many employers are pleased that there are tools that allow employees to work more efficiently in the workplace and from home, many legal ramifications must be considered when using these applications.
Information communicated between employees using these apps is still part of the company’s digital footprint and would need to be included in eDiscovery. This presents many different challenges for both legal teams and the people processing the discovery.
Interpreting Emoticons and Thumbs Up Emojis
One of the new challenges when going through electronic discovery today is interpreting the intent and meaning of emojis and emoticons. One would never think that there could be so many legal issues with a “thumbs up” emoji, but there are many issues that must be addressed.
The first thing that you must determine is the intent of the sender. For example, was that thumbs-up emoji indicating that you agreed with the text that you received? Or does it mean that you received the information and will get back to it later? Does a thumbs up mean go ahead with the plans or project, or does it mean that everything here is looking positive for approval on the project?
If that does not present enough confusion in interpreting emojis and emoticons, you will have to ask if the recipient received the right emoji on their end.
An app like Skype, WhatsApp, Zoom, iMessage, Slack, and Teams all have different versions depending on when you installed the application, if you have updated the app, or if you are using the premium subscription feature or a free version. Two people using the same app, but different versions may not be able to send or receive the same emoticons and emojis. A person may send a smiley face to another person, but if the recipient does not have the same version of the app, they may receive a number or letter instead of the emoticon.
Litigation support going through the discovery process will have to look at both sides of the conversation to determine if the message and its emoticons or emojis sent were actually the same ones received.
Generational, Cultural, and Interpreted Meanings
Determining the intent of an emoticon or emoji will also have to address the user’s age and cultural background. These things may not make a difference in the workplace, but they will make a difference in how emoticons and emojis are used.
A person who is 50 will not use the same emoticons as someone who is 20, and neither will they have the same reasoning behind the choices they do make. It will be essential to establish a pattern for each person when going through discovery to determine the intent behind the messages.
Interpreting Language Used
The use of messaging apps and collaboration tools has also created a new language. People use “text talk” when using these apps that include many acronyms, abbreviations, and even made-up words that are only understandable in texting, such as “gr8” for “great.” This presents another challenge when interpreting data for legal purposes.
The language used in these messages will also be impacted across generational and cultural lines. Some terminology used by one group that is meant one way can be interpreted another way by someone outside of those cultural boundaries or age group. Investigators will be required to take all of these possibilities into consideration and make a note of the differences.
How Corporations Can Address This Digital Information Issue
The pandemic has changed how many employees perform their job duties. Many have switched to remote-style work, and it has been very successful for them and their companies. This type of setup ensures that these companies and employees will continue to use platforms like WhatsApp, Skype, Zoom, iMessage, and Slack. In fact, you can even expect an increase in the use of these programs.
So, what does a company do to protect itself from legal issues with employees using these collaboration apps?
Companies will have to work with their in-house or external corporate legal team to establish guidelines for collaboration app use and for the collection and storage of that data.
Research Will Be Required
As most companies understand, the storage of all digital files for their company is a necessity in case there are ever any legal issues. Many companies have the daily information stored separately from other data so that it can be accessed at any point by investigations support if a lawsuit is filed.
The same type of storage will be required for data that takes place on these collaboration apps.
This is where it becomes complicated.
Many of these apps do not store their information for very long. Some of these apps even prohibit the storage of this information off-site. You even have one app out there that stores absolutely nothing because their messages disappear after a set time period. So, what do you do to protect your company?
1. The IT department will have to work closely with different apps to discover their data retention times and if they can be stored off-site.
2. Once different apps have been explored. The company will have to establish which app or apps can be used by the company and which version of that app.
3. All other apps will have to be discarded by employees.
4. IT department will have to continually monitor and update collaboration apps so that the company remains compliant with corporate legal guidelines while still providing the tools their employees need.
And Then There Is TikTok
TikTok is a video app that has been around since 2017. The app features small, short videos that are only 15 seconds long. The app originated in China but has quickly become one of the most popular apps across the globe.
TikTok is the second most downloaded app in the world. It is also the leading non-business app downloaded onto company phones and other devices. This is where the problem lies.
Since this is not a collaboration tool or other work tool, the information about the use of the app should not concern the business. Right?
Wrong. Since the app is being held and used on business property, the information about the use of that app must be included in any eDiscovery. The videos that a person watches, likes, dislikes, comments on, or shares with others can shed a lot of light on that person’s personality and work ethics.
There have already been cases that have gone to trial where this type of evidence has been used. A pattern established on the video viewing site showed a direct connection to actions taken while the person was at work.
So businesses are encouraged to either accept the fact that this app is being used on their devices and take the necessary precautions to track and store all of this information or strictly prohibit the use of the app on any company-owned device.
What Does This All Mean For Law Firms and Litigation Support?
The increased use of collaborative tools by businesses will have an impact on law firms. When electronic discovery is required, law firms and their litigation support will have to consider that these types of records need to be reviewed and reviewed differently than other digital documents.
You will not be able to simply do a keyword search to start finding relevant documents for your case. You cannot search for a “thumbs up” emoji or a “smiley face.” You will have to dedicate time to review these documents, and it may also require follow-up interviews to determine intent.
The support staff may also have to investigate further the app used and the versions being used in the conversation. There are many possibilities for miscommunication in the same app if different versions are being used.
Law firms are encouraged to meet with their corporate clients and encourage them to implement IT strategies that will address the issues of using collaborative tools. The sooner these issues are addressed, the more protection the enterprise will have in the event of a lawsuit.
Law firms and corporations saw significant changes in collecting and storing information when email first emerged as a new form of communication. It took both industries a little while to adjust to the new system, but these challenges were quickly overcome.
The same will apply to collaboration and communication apps. As more businesses and employees utilize these tools to increase production and make their jobs easier, the more common it will be to include this information in litigation.
By taking the necessary steps to self-regulate which apps are used, how the information is stored, and keeping all employees using the same versions of a collaboration app, businesses will easily adapt to this new technology.
Law firms will have to take a more aggressive approach to this subject, at least at first. The support staff will have to be instructed and trained on how to evaluate this type of information and to ensure that it is gathered. Many businesses will not be prepared for releasing this information right away as if they are just starting a program to address this issue.
Attorneys will have to interpret the data because of the many ways text messaging, emoticons, and different people can take to mean emojis. More follow-up interviews may be necessary for clarification purposes.
As a side note, law firms may also benefit from implementing the same type of IT protection at their firms. Recent data shows that 44 percent of all law firms use collaborative apps and that many firms have reported that they intend to increase the use of these tools as more people work from home.
Conor Looney is also an advisor to the Electronic Discovery Reference Model’s (EDRM) Global Advisory Council.
Connect with Conor Looney