Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of December 21-January 4. Here’s what’s happening.

Thumbs-up emoji is a signature, Canadian court says

We’ve written before about the increased relevance of emojis in litigation and the practical challenges of capturing and cataloging evolving forms of communication. Now we have an update on how a court ruling can hinge on a single emoji.

In Canada, an appellate court recently dismissed the appeal of a ruling that a “thumbs-up” emoji in a text message constituted an acceptance of a contract. The case involved a grain buyer and a farming corporation that had previously entered into contracts through text messages. In 2021, a representative of the grain buyer texted details to the farm corporation’s owner about purchasing grain at a certain price on certain dates. The grain buyer representative followed up by texting a photograph of a signed standard contract used in previous dealings between the two parties, with the message “Please confirm flax contract.” The farm corporation owner replied to that message with a thumbs-up emoji.

In June 2023, a justice sided with the grain buyer and the farm corporation appealed on the grounds that the emoji didn’t satisfy the signature requirement under Canadian law. The majority of the appeals court disagreed. They found that under the circumstances of this particular exchange, a thumbs-up emoji can be used to express acceptance. Additionally, the signature requirement was met by the thumbs-up emoji because it originated from the buyer’s unique cell phone, which was used to receive the flax contract sent by the seller.

This dispute is another example of why lawyers should pay close attention to what is being said or implied when emojis are used in conversations to understand the potential true context of the messages. And while this one took place in Canada, emoji-related disputes are happening in the U.S. too. Eric Goldman, Associate Dean for Research and a Professor of Law at the Santa Clara University School of Law, tracks U.S. cases involving emojis on his blog and found 216 emoji-related cases in 2023, up from 177, 163, 125 and 98 over the last four years.

Practical tips for Gen AI use

On the ILTA blog, eDiscovery Today editor Doug Austin shares eight things to know about generative AI (Gen AI). While his advice is offered for corporate legal departments, it’s a helpful reminder as the use of Gen AI has transitioned into practical mainstream applications.

In the article, we’re reminded that the results generated by AI are only as good as the data that’s fed into the large language model (LLM). That leads to his next tip: Managing the risks of feeding sensitive and confidential information into LLMs, especially when selecting a third-party Gen AI solution or vendor. At Array, we take data security and confidentiality seriously, especially when it involves the use of AI in eDiscovery.

Some questions to ask potential vendors include whether the AI tools they use for eDiscovery specifically prevent submitted data to be used to further train the model, and what version of the tool is being used – whether it’s public or a closed, enterprise-level model and what level of data retention and data reuse is employed by the tool.

Other recent eDiscovery news and headlines:

• Legal Tech’s Predictions for E-discovery in 2025 (Legaltech News)
• New Year, New Threats: Practical Tips for Secure Communications after Salt Typhoon (JD Supra)
• The Workstream of eDiscovery (Complex Discovery)

Julia Helmer; Director, Client Solutions

With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.