Emoji in eDiscovery: What Legal Professionals Need to Know | Onna Technologies, Inc.

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That pensive face. The disgusted face. Laughter so hard you cry emoji. While emoji aren’t a new phenomenon, the increase in remote collaboration has taken these tiny expressions to an unprecedented level of use as they offer a new way to communicate and build relationships online. One study even found that three in four people prefer to send an emoji instead of words when giving a quick response. However, the use of emoji isn’t the only thing on the rise.

We are starting to see an exponential increase in emoji as evidence in court cases. Not only is the need to uncover emoji data present, but courts are increasingly requiring litigants to produce a wider variety of CSEs far beyond emoji, such as private channel Slack messages and recordings. of Zoom meetings. But when it comes to emoji in eDiscovery, capturing this kind of data presents unique interpretive and technical challenges that any legal professional should be aware of.

The challenges of interpreting emoji ambiguity

Unlike oral and written communication, deriving meaningful interpretations from emoji remains a challenge. It’s not always clear what a sender is trying to communicate with their emoji use, leaving the message open for interpretation by the recipient and, in some cases, the courts.

An example of this open interpretation was found in the Disability-Related Discrimination and Retaliation case of 2014. Apatoff against Munich Re America Services. The use of emoji in emails between two managers led, in part, to the dismissal of the company’s summary judgment motion against a wrongful dismissal claim. A series of smiley emoticons found in the emails was determined by the court as reasonable evidence that the managers were happy to fire the plaintiff.

Understanding the ambiguity of emoji in context also appeals to several other factors, including culture, language, and generation. While the ‘thumbs up’ emoji can serve as a sign of approval in Western culture, it is often interpreted as vulgar and offensive in West Africa and the Middle East. Likewise, when the “waving hand” emoji is used to say hello or goodbye in one language, it can signify the end of a friendship in another. Generation gaps also tend to play a role in interpreting the meaning of emoji, often leading to intergenerational miscommunication.

When it comes to emoji in eDiscovery, context matters (was that a whistle or a smiley face?) You’ll get into the next one.

The technical challenges of Emoji in eDiscovery

The Unicode standard currently recognizes nearly 4,000 emoji symbols, but that doesn’t account for platform-specific or custom emoji that apps, like Slack, allow users to create. With 175 apps being the average number deployed by large enterprises, emoji in eDiscovery can be particularly troubling to legal and IT teams who are already tasked with finding ESI in siled data stores.

Another complication of emoji in eDiscovery is the way the emoji visualization is displayed on different platforms, operating systems, and devices. These emoji rendering implications may result in material changes to the messages and their meanings, or be absent altogether. For example, the same water gun emoji on Apple devices, typically described as a summer activity for kids, looks like a gun when used on LG devices.

And while the emoji recognized by the Unicode consortium provide a code point that allows for accurate rendering on all platforms, user-created and platform-specific emoji tend to be based on custom codes. . Not only can this alter the visual representation of the emoji, but without the right technology, this potentially critical piece of evidence cannot be easily categorized or indexed.

A proactive approach to Emoji in eDiscovery

It’s safe to say that these small but powerful expressions aren’t going away anytime soon, if ever. While much of the challenge of interpreting emoji ambiguity remains unclear, you can get a head start by focusing on narrowing two shortcomings: your technology and how you use it.

When dealing with emoji in eDiscovery, the right tool will allow you to discover, collect, and retain emoji data. Solutions with improved data granularity provide the ability to filter specific data attributes such as date range, user, source code, and even specific emoji skin tones. Not only will having the right tool help legal teams manage defensible collections more effectively, being able to capture emoji in its native format alongside the conversational context can be increased tenfold when it comes to fully deciphering its. meaning.


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