Chances are most readers instantly associated meaning to each one of these symbols. Emojis are now a staple of modern communication. According to a recent article by USA Today, users share over 10 billion emojis daily across several platforms. Text messaging, emails, social media, documents, and work chat apps all have options to add emojis into communications. On 17th July, many celebrated “World Emoji Day” for the tenth year. Each year more emojis introduced and are registered with Unicode, an entity attempting to standardise emojis.

All of this illustrates just how drastically communication has changed in a short period of time. Every year the use of emojis becomes more commonplace. This has presented litigation obstacles as the meaning of emojis is contextual and does not always mean the same thing. Take the first smiling emoji above. To some, this just conveys simple happiness or positive sentiments. However, other people attribute that particular smiley face to convey a passive aggressive or patronising response. Also, emojis can look slightly different based on the device or operating system. See how it can get confusing when trying to decipher the context of a conversation during eDiscovery review?

There has also been a recent shift where courts are starting to give greater weight to emojis in their decisions. While this does not eliminate their subjective nature, it can cause disputes. Reviewing key case law and keeping apprised of best practices can help provide a roadmap for handling emojis during litigation. This will provide insight into how courts may handle key issues, while also offering guidance on how to practically approach emoji review.

Compelling Case Law

Recent decisions in the U.S. and abroad highlight the prevalence of emojis in modern communications. Judges have accepted that these symbols carry meaning and in some situations are finding them legally binding or otherwise significant. 

Here are three examples of this sentiment in practice:

1. In the case of In re Bed Bath & Beyond Corp. Securities Litigation, 2023 U.S. Dist. LEXIS 129613 (D.D.C. July 27, 2023) the court denied a motion to dismiss in a securities fraud case. Bed Bath and Beyond investors brought a class action against Ryan Cohen for securities law violations. He made USD $68 million in profit after talking up the stock and then liquidating. He tweeted a message with the full moon face emoji, which plaintiffs interpreted as a sign to hold or buy the stock because it would go “to the moon,” thus driving up the price of the stock quickly. Cohen maintained that this was ambiguous, but the judge pointed out how important context is in this situation. Also, how language in itself can be ambiguous and contextual depending on tone, sarcasm, and the overall situation in which relaying a message.
2. In Canada, the judge in South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII) ruled that the “thumbs-up” emoji was sufficient to demonstrate contract acceptance. The court granted summary judgement placing USD $82,000 liability on a farmer that breached a contract by failing to deliver goods to a buyer. The buyer texted a photo of their contract and said, “Please confirm flax contract.” The farmer responded with the thumbs up emoji, arguing that this was meant to convey receipt of the text but not a digital signature. The court did not find the intent relevant and found that although untraditional, the circumstances warranted interpretation that this was a valid signature.
3. In Rossbach v. Montefiore Medical Center, No. 19-cv-5758 (DLC), 2021 WL 3421569 (S.D.N.Y. Aug. 5, 2021), the judge issued an instructive opinion on emoji review. The plaintiff filed a wrongful termination suit where she claimed sexual harassment. In discovery, she produced text messages from a former co-worker going to the core of her claim. Defendants reviewed the produced text messages and raised several issues with their credibility, one being the characteristics of the heart eyes emoji image. The judge found that plaintiff fabricated this evidence and ordered dismissal and monetary sanctions. Analysis of the emoji was pivotal to this decision, as the characteristics were inconsistent with what it should look like on the phone’s operating system.
    
   In August 2023, the Second Circuit upheld the case termination and monetary sanction against plaintiff but vacated the sanction ordered against her attorneys. It noted that the lower court incorrectly applied the wrong standard, which should have been explicit bad faith.

Tips for Success

Emojis will only continue to integrate into modern communications. This means that they will keep coming up in litigation over text messages, emails, work chat apps, social media messages, and more. 

To ensure proper handling of emojis during litigation, take inspiration from the case law above and consider these suggestions:

1. Understand that emojis will always be contextual. While some have a more universal meaning, others are subject to the user’s interpretation. This will warrant manual review to some degree, so make sure to include that in eDiscovery workflows. This also may require a specific line of questioning during depositions or trial to garner the correct context.
2. Consider the different characteristics emojis may have over different versions of an operating system or devices. As Rossbach illustrated, emojis can be a pivotal source of evidence and having the right review skills is crucial.
3. Litigators should take reasonable steps to affirm authenticity of the evidence their client provides. Although sanctions were overturned in the Rossbach case, another judge could rule differently. Even if a court requires demonstrative evidence that an attorney acted egregiously in order to issue monetary sanctions, negligent or reckless representation can still result in discipline before the state bar for ethical violations.
4. Looking through a wider lens than discovery, the other cases discussed above illustrate how emojis can come into play dispositively. It could support or defend against certain motions, which means that an earlier understanding of key communications may be necessary.
5. Look for a provider that offers an end-to-end chat data eDiscovery solution’ that can help with production, assist with contextual review, and consult on litigation trends. For example, using tools that have capabilities to render emojis inline can be very helpful in deciphering context. This will allow reviewers to view collaborative chat conversations and instant messages as if using the custodians’ native chat applications with all the nuance and interaction needed to make sense of modern messaging.

Incorporating these tips into practice can improve approaches to eDisclosure and litigation as a whole. The case law on emojis will also keep surfacing, so make sure to read them to remain informed on new guidance in this area.