Review of social media records has radically changed over the past decade. Originally limited to e-mails and maybe some Facebook posts the explosion of social media and related trends have attorneys engaged in e-discovery grappling with how to handle smiley faces, winky faces and other emoticons and emoji designed to express emotions. With the number of these symbols skyrocketing from the hundreds to over a thousand, that task is becoming more difficult.

“It's getting more complicated,” Bill Tolson, director of Product Marketing at Actiance, told a webinar held this week in association with the inaugural national E-Discovery Day. “How do you capture that stuff? How do you interpret it?”

Courts and attorneys have faced some earlier questions about emoticons and what they mean and what the writer meant when inserting the symbol. In 2012, one defense offered for Indiana girls accused of cyberbullying on Facebook pointed out that they posted smiley face emoticons – an indication they were not serious, according to The Associated Press. More recently, a jury was given a smiley face (included in an online document) during a New York City criminal trial of a man involved in the Silk Road case. The federal judge hearing the case, Katherine B. Forrest, told the jury to consider the emoticons as part of the evidence, according to a report from The New York Times.