What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other?

“Zoomers” have their own style of communication.  Danielle April, Gen Z’s slang and emojis are confusing older colleagues at work – The Washington Post (Dec. 12-13, 2022).

Generation Z, those born between 1997 and 2012, have a “form of messaging” that creates “a quirky challenge for multigenerational workplaces….” Id.  For example, Ms. April wrote that use of the phrase “out of pocket” led to giggles among younger workers, while the word “slay” was confusing to older ones.  To Gen Z, “slay” means “good job” or “killing it.”  Id.

In William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009), the Hon. Andrew J. Peck issued “a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information (‘ESI’).”

Judge Peck described a number of ways to meet that test. His Honor wrote:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails. Prior decisions from Magistrate Judges in the Baltimore–Washington Beltway have warned counsel of this problem, but the message has not gotten through to the Bar in this District…. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use….  [emphasis added].

The Washington Post article demonstrates the importance of following Judge Peck’s guidance. So do a number of other articles.

There are many other articles describing how language – and emojis – are changing.  See, e.g., Koya Yurieff, Sorry millennials,[1] the crying face emoji isn’t cool anymore | CTV News (Feb. 15, 2021)(“For many Gen Z-ers, the skull emoji has become a popular replacement for conveying laughter. It’s the visual version of the slang phrase ‘I’m dead’ or ‘I’m dying,’ which signifies something is very funny.”). The article states:

Anecdotally, older generations tend to use emojis literally while younger people get more creative, said Jeremy Burge, the chief emoji officer of Emojipedia, an emoji dictionary website. Emojipedia recently wrote a blog post that said: “It’s common wisdom on TikTok that the laughing crying emoji is for boomers…. Gen Zers told CNN Business they like to assign their own meanings to emoji, which then spreads to others in their cohort, often through social media. “

Id.

An excellent resource on emojis is Eric Goldman, “Emojis and the Law,” 93 Wash.L.Rev. 1227 (2018), and his blog A Million-Dollar Thumbs-Up Emoji?-Lightstone v. Zinntex – Technology & Marketing Law Blog (ericgoldman.org)(emojis can satisfy the statute of frauds),[2] as well as sites such as 📙 Emojipedia — 😃 Home of Emoji Meanings 💁👌🎍😍.

Judge Peck got it right.  In designing searches, Boomers, Millennials, and Zoomers may attribute different meanings to similar words or emojis and they need to be interviewed by anyone involved in constructing a search methodology.

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[1] Millennials were born between 1981 and 1996.

[2] Prof. Goldman wrote: “I use the thumbs-up emojis extensively, but it does pose some risks. In some cultures, it means F-U; and in the US, using it in online negotiations could be worth a lot of money.”  He also wrote: “I also point out that smileys always have the capacity to indicate that the associated text was sarcastic, in which case the smiley can flip the text’s meaning. That makes a simple smiley an indispensable part of every conversation where it appears, because it might be reversing the meaning of the text around it.”  Court Explains How Smileys Are “Prone to Multiple Interpretations”-In re State – Technology & Marketing Law Blog (ericgoldman.org) (May 10, 2022).