While emojis may seem like harmless cartoons or animations we add to the end of text messages or emails, their possible insinuations can have a large bearing on a case. But companies are finding it increasingly difficult to both interpret and preserve emojis correctly. So why are emojis presenting law firms which such challenges?

Emojis Are Difficult to Interpret

One of the big issues is that emojis register differently across different operating systems, making even the most everyday requests from opposing counsel very challenging. For instance, if counsel requests to see every “smiley or winking face emoji” within a string of communications, it’s not as simple as the original command makes out.

For example, just the moniker “winking face” alone could be related to several emojis. One way for opposing legal teams to work from a standardized set of labels is by referring to the Unicode.org, which lists each emoji’s term from each available device, platform or operating system. But therein lies another problem, context.

Context of Emoji Presents a Preservation Challenge

While a screenshot of an emoji may prove helpful, what if it was animated? A still of a mischievous monkey may intimate one thing, while its animated actions portrayed in realtime may have had much more sinister undertones. One way to try and preserve an emoji’s intention is to save it as the underlying HTML code itself, so its original visual appearance can be replayed.

However, the context may still be missed in this scenario. For example, what if a bear emoji had a particular significance as an inside joke within an office community? What may have meaning and significance to one party may mean nothing to the other. With that in mind, is it worth altogether banning emojis within the workplace to avoid this potential e-discovery nightmare?

Banning Emojis is Not the Answer

Even though emojis seemingly have the potential to cause so many issues concerning ediscovery, banning them has seen negative consequences borne out for companies who have opted to do so. According to Ryan Zilm (a life cycle management advisor at USAA), companies who attempt to negate their litigation risks by banning the use of social media or emojis within the workplace see their employee retention rates suffer.

When asked about an all-out ban, he states companies are “actually losing employees who have been there for five years and are stellar employees because they are taking away their Facebook, their Snapchat or whatever else they are able to do.” So what is the right approach, given that emojis are challenging to preserve, and complete bans are detrimental?

Instituting Social Media Guidelines Can Have a Positive Impact

Companies looking to limit the downside presented by emojis are best served to implement company-wide guidelines for both social media and emojis. That’s according to Ashley Fischer, managing counsel at H-E-B.

She stated at a recent webinar on using emojis within e-discovery that by issuing helpful guidance on using emojis, companies can limit their litigation downside without constraining employees to the point of feeling too restricted. “It’s a policy that’s coming in more and more these days,” she added.

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