One of the most important emerging issues in eDiscovery is how courts should deal with emails containing hyperlinks that refer to other documents.
Should such emails be produced with a family relationship, close to traditional emails and their attachments?
While this issue is far from settled, a recent decision by the Southern District of New York, Nichols vs. Noom, 20-cv-3677, 2021 WL, provides helpful advice.
More precisely, the Noom decision considers that:
(1) Lawyers should proactively address the treatment of hyperlinks in their ESI protocol, and
(2) If there is a dispute regarding this matter, the outcome should be determined by considering the respective burdens of the parties.
Attachments vs hyperlinks
First, what are hyperlinks and how are they different or the same as traditional email attachments?
With traditional emails and attachments, the family relationship is clear: there is a parent email and a child attachment. Both exist in a single container. The two pieces of information represent an immutable snapshot over time. The email and attachments will be received in exactly the same state they were saved and sent.
Hyperlinks (or “modern attachments” in the Microsoft ecosphere), on the other hand, are digital references to files that are stored in a location separate from the email, as opposed to the email itself. same. This makes hyperlinks different from traditional email attachments because the underlying documents are not snapshots in time. Instead, they are work in progress that can be edited, moved, or deleted at their source. Thus, the content of the file referenced in a hyperlink may be significantly different from the content of this same file at the time of sending the underlying email.
The Noom Decision
Nichols vs. Noom discussed the basic nature of emails containing hyperlinks:
- Should they be treated the same as emails with attachments?
- Should the family relationship be maintained during collection and processing, and should “child” hyperlinks be produced sequentially after their “parents”?
- Is it sufficient to separately produce relevant emails and documents, as they are in the organization’s systems at the time of collection?
The plaintiffs asked for “clarification” or a review of the magistrate’s orders regarding the production of documents by the defendant Noom. Noom used Gmail for his communications and stored his documents on Google Drive. Employees used to send Gmail communications with embedded hyperlinks that pointed to these documents. These emails and the documents referenced in their embedded hyperlinks were not linked as family documents in Noom’s document collection.
The magistrate ordered that Noom could use Google Vault to collect his emails, but that if plaintiffs identified hypertext documents that they could not find in the Google Drive collection, they would be allowed to raise this issue with Noom. Noom would then produce or identify the document.
The complainants argued that “hyperlinks are akin to attachments” and should be produced with emails from their parents as families. They asked the court to require Noom to use a specific forensic collection device or create a new computer program to produce hypertext documents as attachments.
Noom took the position that hypertext documents are not the same as email attachments. She argued that she was already producing the hypertext documents referenced through her collection of organization and custody documents. He also argued that he should be allowed to choose his own method of collection rather than taking on the added burden of making redundant production just to meet the defendant’s request to reproduce documents with family relationships. In addition, he presented evidence that the cost of using the Applicant’s preferred forensic tool would be close to $ 180,000, which he said was not commensurate with the needs of the case.
Disagreeing with the applicants that a hypertext document is an attachment, and finding that they did not need all the hypertext documents anyway, the Court supported the method of collection chosen by the defendants. Above all, the ESI stipulation of the parties concerned classic e-mail attachments, but was silent on the issue of e-mails containing hyperlinks.
In the absence of an agreement between the parties and the Gmail and Google Drive data (which included all relevant hypertext documents) already collected, the Court issued a decision which took into account proportionality, cost and delay. He determined that the hyperlinks were not equivalent to attachments and upheld the trial judge’s ruling that the defendant did not need to collect data again with family attachments in place. Rather, it could provide information about these relationships in response to specific requests from the requester.
So what should lawyers do about hyperlinks?
Noom however, there is no real consensus as to whether it is standard to maintain family relationships between e-mail and hypertext documents. This decision shows us that the courts will not automatically treat hyperlinks as regular attachments. Accordingly, there are two main takeaways for lawyers:
- If a lawyer wishes to maintain the “family” relationship of the hypertext link to the e-mail, he will have to specifically draft the ESI protocol to take into account the nature of the hypertext links. In the absence of clear discussions and negotiations, there is at least a reasonable chance that a court will decide otherwise. Thus, it is essential that lawyers understand the nature of the email data of their clients and opponents before negotiating the ESI protocol.
- This decision suggests that in the event of a dispute over the collection of hypertext documents, the courts will be inclined to find a solution that takes into account the factors of proportionality, cost and time. The Noom This is exactly what the court did in avoiding the plaintiff’s request for expensive and time-consuming technical solutions to connect the emails to their embedded hyperlinks. This makes particular sense when most of the embedded documents are not important to claims or plaintiff defenses anyway. In accordance with the proportionality requirement of FRCP 26 (b), it seems unlikely that a court would oblige a litigant to incur significant expense or delay in meeting his opponent’s preferred method of production, particularly when time and time is needed. money has already been spent on the effort.
Lawyers and courts will need to change their conception of discoverable communications as technology continues to evolve and develop. The best prepared attorneys will have thought through the matter as soon as possible and will enter discovery negotiations with a plan in place.