Custom Emoji May Be a Problem eDiscovery Technology Never Addresses: eDiscovery Trends

Shocked face – again! The good news is that there are 3,633 emoji in the Unicode Full Emoji List, v14.0, which is up from 3,300 in v13.0 of the list. The bad news is that the number of custom emoji for which there is no standard is in the millions.

According to Legaltech® News (Hidden Data? Custom Emojis Pose Blind Spot for E-Discovery, written by Rhys Dipshan – note to author, the plural of “emoji” is still “emoji”, at least according to the Japanese 😉 ), many emoji in circulation today are standard ones—they’re provided by chat or collaboration software and available to all its users. But an increasing number of software applications, including Slack, allow users to create their own unique custom emoji. And these personalized emoji are much harder for eDiscovery tools to handle.

While eDiscovery experts don’t see this as posing an immediate problem, they recognize that it will soon need to be reckoned with. “I think it will start to emerge as a particularly thorny problem, but unfortunately not one that is easily solved,” said Pete Feinberg, senior vice president at Consilio.

Feinberg explained that the fundamental issue with custom emoji is that if creators don’t “submit their emoji to the Unicode standard body, then the rest of the world can’t interpret whatever their custom configuration is for that character.”

Scott McVeigh, industry principal at Onna, noted this can be a particular problem for some eDiscovery platforms. “Custom emojis may not be rendered as an emoji in various review platforms or whatever you’re going to look at for eDiscovery,” he said, explaining that instead of presenting a visual image, a tool may just present a string of characters denoting a custom emoji was used. Without the visual image, however, “you may not get the same context around what that emoji is trying to convey, depending on how that application or eDiscovery platform that you use renders that back,” he said.

Here’s the problem: According to a Wall Street Journal article from July 2019, Slack alone contains 26 million custom emoji (this was over two years ago, so it’s certainly much more now) and the article notes that just one corporate client of Slack has created more than 50,000 custom emoji alone. I discussed this in a post last year covering an excellent white paper written by Matt Mahon.

You say, “much harder for eDiscovery tools to handle”? More like impossible.

Sure, the standard emoji will come into play and can be dealt with, and we had a case earlier this year where the incorrect use of a standard emoji was a factor in the case – Rossbach v. Montefiore Med. Ctr. (which I covered here, second reference in two days!). But custom emoji? As they say in New York, “fuhgeddaboudit”. At least for the foreseeable future. It will certainly take a lot of time and, if it’s going to get done anytime soon, there’s:

So, what do you think? Have you had to address custom 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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