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Not Your Father's E-Discovery: Emoji Evidence

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By George Khoury, Esq. on October 16, 2017 6:56 AM

E-discovery has come a long way since it first debuted. Papering your opponent has never been easier and no longer requires spending hundreds or thousands of dollars on copying and a crosstown courier. Now, it is routine for document dumps to be fully contained on a single flash drive, or DVD-ROM, or even in an email.

However, while digitization makes e-discovery easier, the age of the internet has brought with it an entirely new language that lawyers and discovery professionals from coast to coast must learn to understand: Emoji.

Emoji Discovery -- Is That Winky Emoji a Flirtation?

When propounding or responding to production requests, you may find yourself needing to produce or review documents laced with emojis. Unpacking the intent behind an emoji can require quite a bit of legwork, but you may finally get some real value out of your intern (or child, or niece/nephew, or neighbor's kid). But just because those in the know, know what an emoji means, that doesn't mean it was used correctly.

Specific interrogatories, requests for admission, and even depositions, might all be necessary to get to the bottom of whether that one employee sent kissy face emojis to everyone, or just the one employee asserting a sexual harassment claim. It may be that the employee didn't realize it was a kissy face, but maybe thinks it's a worker that loves whistling while they work. If you believe the stereotype, parents just don't understand emojis.

The Importance of Emoji

However, whether or not it is actually worth spending time on emoji discovery is really up in the air. Some judges simply don't think emojis can change the meaning of a sentence.

However, in some case, emoji evidence could be the nail in the coffin. For instance, a boss that uses the different races for emojis, or the wrong emoji, could find themselves facing a hostile work environment, discrimination, or sexual harassment claim. And while an emoji alone might not be enough, placed in a larger context, it could be the straw that breaks the emoji-camel's back.

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