Pop Quiz! The Plural of Emoji is?: eDiscovery Best Practices

Shocked face!  If you said “emojis”, then you’re wrong.  It’s still “emoji”.  But, that’s only the tip of the iceberg of what you can learn in a new white paper out on the topic of emoji and how it impacts not only workplace communication, but how that workplace communication is discoverable.

In a new white paper from Ricoh eDiscovery (The Impact of Emoji in Workplace Communication, written by Matt Mahon, who is National Manager, Information Governance and eDiscovery Sales for Ricoh USA), the author discusses legal and compliance considerations, as well as case law and discovery challenges associated with emoji today.

Emoji, as we know them today, were first introduced in 1999 and Matt gives us a “selected history of emoji” all the way to 2020.  Believe it or not, there is a current approved emoji list (v13.0, as of January 2020), which was put together by the Unicode Consortium which now consists of over 3,300 emoji.  Do you think that’s a lot?  Well, apparently, Slack now contains 26 million emoji, with one Slack client having created more than 50,000 custom emoji alone.  If that client created one custom emoji every waking hour (18 hours a day) every day, it would take about 2,778 days (7.6 years) to create all those emoji.  Time for a new hobby!

Nonetheless, as reported in a 2019 Adobe Survey, by 2019, 92% of the connected population used emoji in personal communication with 61% utilizing emoji at work.  From a discovery standpoint, that means that you’re more likely to encounter emoji in business communications than ever.  How likely?  Well, as Eric Goldman, Professor of Law at Santa Clara University School of Law and recognized expert (yes, there’s a guy who tracks that stuff!) notes in his 2019 Emoji Law Year-in-Review: he “found 101 cases in 2019 that referenced “emoji” or “emoticon.” This nearly doubles the number of 53 from 2018, indicating that the relevance of emoji in the law is growing exponentially.

By the way, you do know the difference between an emoji and an emoticon, right?  An emoticon is created out of text, primarily via the use of punctuation marks, whereas an emoji is a small image, a pictograph. Nearly everyone has used an emoji and emoticon at least once in their lives, even if they didn’t know what it was called.  Personally, I’m not a big fan of emoticons… ;o)

Regardless, in this terrific 21 page white paper, Matt gets into the legal issues, discovery challenges, potential emoji Daubert hearings and emoji translators.  He also gets into how emoji often render differently across platforms, so the emoji you see may not be the emoji your audience sees in social media posts or text/other messages.  And, he covers some case law examples and looks ahead at what to expect in the future, including the need for definitional standards – just as we have for textual language.  The time it will take to get through it all means that there is:

Click here to view the white paper.  Matt also just wrote an article on Evolve the Law about emoji and also will be presenting a webinar for EDRM on November 10 at 1pm ET about the topic (click here to register for that).  And, I interviewed Matt last week, so look for a follow-up post here in the next few days with some of his additional observations!

So, what do you think?  Have you dealt with emoji in eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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