In modern communication emojis have become ubiquitous. So much so that last year Vermont introduced legislation to allow emojis to be used on vanity license plates. In fact, emoji license plates have been available in Queensland, Australia since 2019.

Emojis, first introduced in 1999, are a way to communicate tone in written communication. The “smile” emoji can take what might be interpreted as harsh criticism and change it to sarcasm or a joke. Often single emoji in a message or email can communicate an idea more effectively than a paragraph of text. Because they are an integral part of today’s communications, they are also an important part of the discovery process.

There is more and more caselaw, civil and criminal, that involves emojis—from 2018 to 2019 the number of cases nearly doubled and there are no signs of that trend slowing. Despite the increase in litigation related to emojis the technology to interpret them in discovery is lagging. Anyone who’s ever collected text messages is familiar with the dreaded “�” indicating an emoji was used but, was not rendered in the discovery production process.

There are certainly situations where that missing emoji is essentially meaningless, but then there is the nightmare scenario.  In this situation you have Anne sending an email to her co-worker Frank; they both work in the HR department.

The presence of the eggplant emoji dramatically changes the tone of the email from one that is fairly innocuous to one that is not. If the emoji doesn’t render, crucial evidence is lost. Further, if one side has a version with the emoji and the other doesn’t it can lead to an unfortunate “gotcha” moment.

Emojis have taken on secondary and even tertiary meanings and the meanings can change in the time it takes a Tweet to go viral. It’s crucial to understand these meanings and understand the timing of their evolution. For example, in September of 2019 the Anti-Defamation league added the “okay” symbol to its hate list as it’s become a symbol for white supremacy groups.

There is no definitive lexicon for emoji use and there are many challenges to beginning to create one. Context matters. The same emoji can be texted by the same person to different people and mean something completely different. Legal professionals need to be mindful of this. Often context will only be found in further discovery—interrogatories, depositions, etc., but only if you know what questions to ask.

Complicating things even more is the reality that e-discovery technology has not fully caught up to emoji use. In 2019 Relativity, a leader in e-discovery technology, introduced the Relativity Short Message Format (RSMF) as a unified message format that processes and renders short message data like, Slack, SMS, iMessage, Bloomberg, and Skype with their attachments. In this format you can search for specific emojis, but there are still issues. The RSMF format renders ~1,000 different emojis.  At last count Slack alone has 26-million different emoji.

So, what should we do? As legal professionals we must be diligent and ensure that all the data we collect is processed properly so we can take full advantage of the tools available. We also must recognize the constantly evolving world around us so we can fully understand the necessary context and recognize when we need to dig deeper.