Hypertext documents can be used as attachments, but this court is not prepared to consider them as part of the family
The Hanzo team always tries to stay one step ahead of the needs of our customers. We constantly ask what new type of Electronically Stored Information (ESI) parties will need to preserve, collect and review for ediscovery and what challenges ESI will pose. Some time ago, we identified the files in Google Drive as one of the next ediscovery puzzles. Fortunately, we had already developed the capability, based in part on over a decade of experience archiving websites and tracking links for regulatory compliance clients, for what we call “follow the trail” collections. link “.
Now we are starting to see the courts ruling on how parties should handle files in Google Drive. Are linked files “attachments” to an email if they are not actually exported and attached but rather delivered exclusively via a hyperlink? This is the question the court addressed in Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (SDNY March 11, 2021). There, trial judge Katherine H. Parker dismissed the complainants’ request for reconsideration and clarified that, in her view, the hypertext documents are not attachments. However, the distinction she drew in reaching that conclusion could quickly turn out to be outdated.
Here is what happened.
The Ediscovery Dispute in Nichols: Are Hypertext Documents “Attachments”?
This class action lawsuit, alleging violations of state law as well as common law fraud and unjust enrichment, involves what the plaintiffs call a “deceptive and illegal auto-renewal program” for the service. Noom’s weight loss. At the start of the discovery, the parties agreed to an ESI protocol that included Noom’s use of Google Vault to collect content from its Google Drive and Gmail.
Complainants quickly determined that “Noom employees frequently link to internal documents instead of email attachments or other documents.” In other words, rather than uploading an existing document to Google Drive and attaching a copy to an email, Noom employees would simply provide a hyperlink to the current version of that document. This was problematic, the plaintiffs argued, because they would not receive “family” designations as they would for traditional email attachments: metadata that would associate specific hypertext documents with emails about them. Therefore, the plaintiffs asked the court to require Noom to use a specific vendor to retrieve both Google Drive and Gmail “so that all hypertext documents are also extracted as part of the” family “document.”
Noom opposed this request on the grounds that “hyperlinks are not attachments”. He further stated that he produced all related documents and pointed out that the court had already ordered him to provide all related documents that the plaintiffs could not locate. Noom argued that a recall would delay discovery and that its estimated price of $ 180,000 would be disproportionate to the case.
The Court’s decision: a distinction without difference?
The court ruled that hypertext documents are not the same as attachments. In the court’s opinion, an attachment to an e-mail is “a necessary part of the communication”. A hyperlinked document, on the other hand, “may or may not be necessary” or even important for communication. The court then cited several examples where hyperlinks would not be an essential part of communication: hyperlinks to cases cited in a legal memorandum, to other parts of a document such as in a table of contents, or to contact details. . In all of these cases, the court noted, the “underlying hypertext documents may be unimportant for communication.”
The court concluded that since the hypertext documents were not the same as the attachments, the family designations did not matter. He ruled that the existing process – where complainants could request any hyperlinked material they couldn’t locate in the corpus – would be appropriate for any litigation that might arise. The court also noted that this process would avoid what it saw as the unnecessary costs and delays that would be associated with re-collecting Noom’s Google Drive documents.
Key points to remember
Personally, I think the court took the “attachments” too literally and restrictively – and there are two sentences in the court opinion that make my point.
First of all, the court recognized that the dispute “raises[s] complex questions about what constitutes reasonable research and collection methods in 2021 – when old forms of communication via emails and documents with attachments… will be replaced by emails and documents with hyperlinks to other documents. Here, the court admits that the attachments are replaced by hyperlinks. If so, then the court’s distinction between attachments and hyperlinks, at least in this context, is outdated. If hyperlinks replace attachments, there is no functional difference between them.
Second, the court reaffirmed the plaintiffs’ position in a way that belied its own conclusion, noting that “Noom employees frequently link to internal documents instead of attachments to emails or other documents” . If hyperlinks are used “instead” of attachments, then they are not used any differently from attachments and they should not, again, in my opinion, be treated any differently during ediscovery.
I expect that “modern attachments,” where correspondents share hyperlinks to documents and other content accessible in the cloud rather than attaching a single version of that content to an email message, will soon be considered. like best practices. More importantly, I think it won’t be long before our current understanding of “attachments” becomes an anachronism akin to the concept of “hanging up the phone”. As email is phased out of business communications and collaborative text messaging platforms are phased in, I think we’ll see a lot more hyperlinks and a lot less real “attachments.” Although this is an evolving area of law, I predict that future courts and opinions will come to a different conclusion.
Whatever the future, Hanzo will be there to help organizations deal with these types of issues.