By Ed Silverstein, From Legaltech News

With the explosion of social media and related trends, attorneys find themselves grappling with new methods of expressing emotion.

Review of social media records has radically changed over the past decade. Originally limited to e-mails and maybe some Facebook posts the explosion of social media and related trends have attorneys engaged in e-discovery grappling with how to handle smiley faces, winky faces and other emoticons and emoji designed to express emotions. With the number of these symbols skyrocketing from the hundreds to over a thousand, that task is becoming more difficult.

“It’s getting more complicated,” Bill Tolson, director of Product Marketing at Actiance, told a webinar held this week in association with the inaugural national E-Discovery Day. “How do you capture that stuff? How do you interpret it?”

Courts and attorneys have faced some earlier questions about emoticons and what they mean and what the writer meant when inserting the symbol. In 2012, one defense offered for Indiana girls accused of cyberbullying on Facebook pointed out that they posted smiley face emoticons – an indication they were not serious, according to The Associated Press. More recently, a jury was given a smiley face (included in an online document) during a New York City criminal trial of a man involved in the Silk Road case. The federal judge hearing the case, Katherine B. Forrest, told the jury to consider the emoticons as part of the evidence, according to a report from The New York Times.

Attorneys handling e-discovery are likely facing similar issues in their cases – or will be very soon.

When it comes to e-discovery, Tolson points out that new forms of communications are raising risk for attorneys. Content needs to be captured and supervised, he explains.

“Ten years ago it was email,” Tolson said about social media documents. “It’s not just email anymore. It’s everything and anything.”

For instance, now there are up to 40 different types of popular applications in social media, he estimated. They vary from Salesforce.com, text messaging instant messaging, Jive, Chatter, WebEx and SharePoint.

Given the widespread use of these options, lawyers cannot prevent employees at companies from using them, adds Mike Hamilton, senior manager, Marketing Programs, at Exterro.

“Business units are going to use these tools,” Hamilton says.

Tolson reminds attorneys that the general rule is that “all is discoverable” if it is relevant to a given legal matter.

Similarly, Hyoun Park, chief research officer at Blue Hill Research, said the processes for applying e-discovery to social content are “still very emerging.”

Generally, the e-discovery process is being better understood by businesses, according to Tolson. It is moving away from a more “siloed … and disjointed process,” Park adds, explaining that the earlier process was less predictable when it came to expenses.

Moreover, much of the costs and time for e-discovery are spent on the review process, Park adds.

The increasing focus now is to find more “cost efficiency” in e-discovery, agrees Patrick Fuller, director of Legal Analytics at ELM Solutions.

He advises that the amount of data being generated is not going to “reverse itself anytime soon.” The longer an organization waits to be proactive, the “more arduous the task,” he adds.

Tolson further advises companies to know what data they have, where it is and who is generating it. “Try to manage all of your data,” he adds. “Don’t push away from technology.”

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