Taming Modern Data Challenges: Emojis

In our last post, we discussed the evolution of structured data in discovery, types of cases where structured data may be important, and the skills needed and best practices to conduct structured data discovery effectively.

Perhaps the most unique modern data challenge is the emergence of emojis as discoverable evidence. Emojis have been playful informal elements of text messages since the late 1990s. But in recent years, they have become integral to professional digital communication through a variety of platforms, including email, text, and collaboration apps like Slack and Microsoft Teams. They are no longer simply cultural curiosities; instead, they have often become critical pieces of evidence because they can influence the tone, intent, and legal interpretation of messages. In this post, we will discuss emojis in terms of how they have evolved, how they have become important in discovery, the challenges associated with discovery of emojis, and the best practices for addressing emojis in discovery.

The Evolution of Emojis

Emojis were not the first representation of emotion within communications – before emojis, there were emoticons. The evolution from emoticons to emojis began in the early days of digital communication, when users sought simple ways to convey emotion through plain text. Emoticons, such as 🙂 for a smile or 🙁 for a frown, emerged in the early 1980s as a way to add tone and emotional nuance to otherwise flat, text-only messages. They relied on basic punctuation marks and keyboard characters, requiring readers to mentally interpret sideways faces. Despite their simplicity, emoticons quickly gained popularity in emails, online forums, and early messaging systems, becoming a form of internet shorthand for expressing feelings.

As digital communication expanded and mobile technology advanced, the limitations of emoticons gave way to the visual expressiveness of emojis. In 1999, Japanese designer Shigetaka Kurita created the first set of 176 emojis for a mobile internet platform, introducing small pictographs to represent emotions, objects, and concepts. Emojis became widely adopted in Japan and were later standardized by Unicode in the 2010s, enabling consistent rendering across platforms and devices. Today, emojis have evolved into a global visual language, with thousands of symbols representing a broad spectrum of human emotion, culture, and identity. They have far surpassed the expressive potential of their emoticon predecessors.

The Importance of Emojis in Discovery

As emoticons have given way to emojis in popularity, they have also taken on increased importance in eDiscovery. According to Eric Goldman, the first known U.S. legal case involving an emoticon occurred in 2004. Over the next ten years, there were at least 40 cases involving emoticons as evidence, but the first known case involving emojis didn’t happen until 2014.

However, over the next ten years, there were at least 864 known cases involving emojis as evidence in the U.S. – with a high of 216 cases in 2023. Conversely, there were only 108 cases involving emoticons as evidence over that same time period. The significant growth in the number of cases involving emojis clarifies just how important emojis have become as evidence in litigation and discovery.

Recent examples of cases involving emojis include:

• A case where a farmer in Saskatchewan, Canada was fined over $61,000 after failing to fulfill a contract the Court ruled he accepted via the thumbs-up emoji.
• This case where a DC court found that the moon emoji tweet sent by an investor in Bed Bath & Beyond in response to a CNBC report was actionable as a potential sign to other investors.

These trends and examples illustrate just how important emojis have become as a potentially relevant and discoverable source of ESI in discovery.

Challenges in Discovering Emojis

There are several challenges associated with discovery of emojis, ranging from interpretive issues related to their meaning to technical challenges in managing them in discovery:

Interpretive Challenges

Emojis introduce significant interpretive challenges because they can convey nuance, emotion, sarcasm, or irony that dramatically alters the perceived meaning of a message. For example, in the Canadian case mentioned above, one party considered the thumbs-up emoji to be acceptance of the contract, while the other claimed it was simply to acknowledge receipt of the text message. These subtleties are important in litigation, as courts are increasingly admitting emojis as evidence to establish state of mind or corroborate claims.

Varied Rendering of Emojis

Emojis can look different across various platforms and devices and this can complicate legal interpretation significantly. As this example shows, the same emoji code might appear cheerful on one interface but anxious on another. Unicode provides the basic definition of an emoji, but it doesn’t specify the exact visual representation. As a result, companies like Apple, Google, Samsung and Microsoft each design their own versions of emojis based on the Unicode standard, leading to variations in appearance.

This visual variation means that the sender’s and recipient’s perception of a message might differ based on how the emoji rendered on their specific devices. In high-stakes cases, legal teams may need to provide screenshots or platform-specific renderings to demonstrate the emoji’s actual appearance at the time of communication.

Other Technical Challenges

Legal teams encounter several technical hurdles associated with discovery of emojis. For example, platforms inconsistently store or export emojis, sometimes converting them to Unicode (e.g., 😊becomes U+1F60A), rendering them as images, or even stripping them entirely, making it difficult to preserve their original appearance. Also, traditional keyword searches are ineffective for emojis, requiring Unicode values and specialized indexing, which many review platforms lack, making it difficult to retrieve them in discovery.

Best Practices for Handling Emojis in Discovery

Given the challenges associated with interpreting, rendering, processing and searching emojis, here are some best practices to consider:

• Select the right tool: Leading eDiscovery platforms are integrating capabilities to recognize and index emojis during ingestion, render them visually in review interfaces, and allow users to filter or search by emoji type. Ensure your eDiscovery platform supports those capabilities.
• Plan for them early: During early case assessment (ECA), identify data sources likely to contain emojis (e.g., chat logs, collaboration apps, mobile communications). Also, as part of custodial interviews, ask custodians how and where emojis were used, especially in cases involving interpersonal conduct or sensitive conversations.
• Address in review instructions: Review protocols should include guidance on evaluating emojis in context, and privilege or issue coding should account for their potential implications.
• Stay abreast of case law rulings: While the number of litigation cases involving emojis are on the rise, this is still a fairly new area of case law. It’s important to stay abreast of case law rulings that may impact how your court could rule.

Conclusion

Emojis are no longer mere playful communications; today, they are meaningful, metadata-rich elements of communication that can influence legal outcomes. While they present challenges in preservation, interpretation, and review, they also provide valuable insight into human behavior, intent, and emotion in a digital world. By leveraging advanced eDiscovery technology and updating workflows to support them, legal and eDiscovery professionals can ensure emojis are treated as the potential evidence they are – not the meaningless distractions they used to be.

In our next post in the series, we will discuss considerations for addressing a new emerging data source: GAI created content.

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