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Discovery and Evidentiary Issues with Emojis

Level: Beginner
Runtime: 61 minutes
Recorded Date: March 16, 2022
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  • Importance of Emojis as Evidence in Civil Litigation
  • Discovery Issues with Emojis
  • Evidentiary Issues with Emojis
  • Practice Tips
  • Resources | Q & A
Runtime: 1 hour, 1 minute
Recorded: March 16, 2022

For NY - Difficulty Level: For Newly-Admitted Attorneys (transitional)


Emojis are an important aspect of everyday communication in 2022. Given their ubiquity, there should be little surprise that emojis have become a source of admissible evidence in civil and criminal cases and provide context and clarity on disputed issues. While they certainly won’t be critical in every action, counsel should be aware of key discovery and evidentiary issues that may affect the admissibility of emojis. In this program, a panel of experts will examine these issues and discuss recommended practices for handling them during discovery, in motion practice, and at trial.

This program was recorded on March 16th, 2022.

Provided By

American Bar Association
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Hon. Maria Audero

U.S. Magistrate Judge
United States District Court, Central District of California

Maria A. Audero was appointed as a Magistrate Judge in June 2018. Prior to her appointment, Judge Audero was a Partner in, and served as co-chair of, the Employment Law Department of Paul Hastings LLP in Los Angeles. While there, she specialized in state and federal wage-and-hour nationwide class and collective actions, discrimination and pay equity cases, equal employment opportunity cases, and government contract affirmative action matters.

Prior to her appointment, Judge Audero served as Judge Pro Tem for the Los Angeles Superior Court and was appointed by Governor Edmund G. Brown as Commissioner of the California Fair Political Practices Commission. Judge Audero was co-chair of the American Bar Association's Section of Labor and Employment Law Committee on Federal Labor Standards Legislation – Family and Medical Leave Act and was Editor-in-Chief of the annual Mid-Winter Report. She also sat as Chair of the Board of Directors of the Employment Round Table of Southern California and was a member and advisor of the Executive Committee of the California Bar Association’s Labor & Employment Law Section. Since her appointment, Judge Audero has served as faculty at The Sedona Conference’s annual meetings and e-discovery negotiation training and spoken on e-discovery panels. In addition, she is a member of the Executive Committee of the Los Angeles County Bar Association’s Litigation Section, an Honorary Director of the Los Angeles Chapter of the Federal Bar Association, and a member of the Board of Governors of the Association of Business Trial Lawyers.

Judge Audero received her B.A. at UCLA, and her J.D. from Southwestern University School of Law, graduating magna cum laude. While there, Judge Audero served as an editor of the Law Review.

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Claudia T. Morgan

eDiscovery Counsel
Wachtell, Lipton, Rosen & Katz

Claudia T. Morgan is eDiscovery Counsel in Wachtell, Lipton, Rosen & Katz’s Litigation Department. She focuses her practice on electronic discovery and information management, both domestically and abroad. She has significant experience in responding to and advising on litigation in federal and state courts, regulatory requests for information, and internal investigations.

Ms. Morgan has represented and advised clients on all aspects of discovery, from preservation to production. She also has experience working with expert witnesses to collect and analyze relevant data, and in support of eDiscovery motions.

Ms. Morgan counsels clients on a range of information risk management issues, including eDiscovery and Records and Information Management (RIM) best practices and litigation preparation. She has worked with clients in overhauling their corporate RIM policies and procedures.

Ms. Morgan received a B.S.F.S. from Georgetown University and completed her J.D., with honors, from George Mason University School of Law.

Chambers has recognized Ms. Morgan as a top lawyer in the field of eDiscovery & Information Governance. Ms. Morgan is a member of the Steering Committee for The Sedona Conference Working Group 1 (Electronic Document Retention and Production), as well as a member of Working Groups 6 (International Electronic Information Management, Discovery and Disclosure), and 11 (Data Security and Privacy Liability). Ms. Morgan is a member of the American Bar Association and the New York State Bar Association.

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David Gaston

Assistant General Counsel & Chief of the E-Litigation Branch
National Labor Relations Board (NLRB)

David serves as Assistant General Counsel and Chief of the E-Litigation Branch at the National Labor Relations Board (NLRB). In his role as the Agency’s Lead Technology Counsel, David leads the NLRB in the development and execution of information policy and ESI-related litigation strategy.

Prior to this role, David was an Attorney-Advisor at the U.S. Department of Agriculture in Washington, DC. His practice areas primarily relate to information governance, civil litigation, e-discovery, digital investigations, and the Freedom of Information Act. Before his government service, David was the Director of Waters Edge Consulting, a consulting firm focused on information governance and security. He is co-author of the Discovering the Digital Record -- The Questions for Examination (2008), an e-discovery reference volume.

David is a graduate of Harvard Law School and the University of Georgia.

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Philip Favro

Special Master, Expert Witness, and eDiscovery & IG Consultant
Innovative Driven

Philip Favro is a Chambers-ranked lawyer who serves as a trusted advisor to organizations and law firms on issues relating to electronic discovery and information governance. Phil serves as a special master and an expert witness on cases involving electronic discovery issues. He also provides clients with guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. Phil additionally offers direction on records retention policies, litigation hold policies, and the need to manage dynamic sources of information found on messaging applications and workplace collaboration tools. Phil is also a leading expert on ephemeral messaging and advises Driven clients regarding risk and compliance issues. Phil is a nationally recognized legal scholar on electronic discovery issues and his articles have been frequently cited in court opinions and academic journals. He actively contributes to The Sedona Conference, where he serves as a member of the Steering Committee for Working Group 1 (Electronic Document Retention and Production). Phil has led various Sedona drafting teams including The Sedona Conference Primer on Social Media, Second Edition (2019), for which he served as editor-in-chief, and the Commentary on Proportionality in Electronic Discovery (2017). He is presently serving as the editor-in-chief for The Sedona Conference Commentary on Ephemeral Messaging (2021) for Working Group 6 (International Electronic Information Management, Discovery and Disclosure).

Phil is a licensed attorney and member of the California and Utah state bars. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in San Jose, California.

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