The Difference Between a Smile, a Wink, and a Blushing Grin: Emojis in E-Discovery

I was talking with friends just the other night about how 17 or 18 years ago, I never would have dreamed that I would use emojis -- or emoticons as we used to call them when they were just cleverly combined punctuation marks -- as much as I do now. And not just in informal personal conversations, but in professional communications. We all know the progression of writing in our best voices and educated diction (honestly, the only time I’ve heard anyone speak the word ‘nevertheless’ out loud is when Luke Skywalker confronts Jabba the Hutt in Return of the Jedi) in the opening message in a conversation, and then, after a few exchanges, we move from using titles and last names to first names, then to shortened versions of those first names, and before you know it we’re dropping in smiley faces with floods of anime tears followed by "LOL." And it’s clear why we as successful, respected professionals use these things that we were once thought to be only appropriate for teenage discourse: without them we sound like jerks. Just think about the difference between, “I really hate my job” and “I really hate my job 😉”.

That’s why the ability to search and analyze emojis as a part of your legal team’s process is becoming more and more vital. As Joe Sremack from the Berkeley Research Group says in a recent article in Today’s General Counsel, “Attorneys who know where emojis are in their document sets have significant advantages. First, they will know whether emojis were properly processed and be better equipped to both defend their own e-discovery process and identify failures in the opposing party’s process. Second, they will be better at finding potentially responsive communications that do not respond to keyword searches.”

On the one hand, the approach to new data types is no different than with more familiar forms of ESI: you identify the data within an organization and then decide how to handle it. The key is knowing what you have. Once you have that, then you can plan on how to preserve and collect that data if litigation arises.

Following a Preservation/Collection Checklist is one way to ensure your process is on track when it comes to new data types:

• What Data is Currently Being Stored?
• How and Where is that Data Preserved?
• How is that Data Accessed?
• What Policies and Procedures are in Place, and are Users Trained for Compliance?
• Are There Clear Channels of Communication Between All Stakeholders (Legal, IT, Business Units)?
• Are You Working with Outside Counsel/Consultants to Create A Reasonable Process for Preserving/Collecting New Data Types?

For more on this, Download this White Paper produced by Berkeley Research Group and Exterro:

The Most Debated E-Discovery Issues: Preserving and Collecting New Data Types