As digital habits change and the shift to virtual work continues to evolve in businesses, new eDiscovery challenges will inevitably emerge. For example, litigators routinely debate the use of AI technology in e-discovery protocols. One party often alleges the theft of electronically stored data when the other fails to produce relevant evidence. Or an eDiscovery service provider faces a hurdle when trying to collect data that is difficult to export and review, such as free-form conversations conducted in chat applications. These are just a few examples of eDiscovery issues that have arisen in recent years. Now the question of whether hyperlinks are detectable has taken center stage.
Consider the following scenario. Someone writes an email to a coworker and wants to include a memorandum they created. Today, many people create and save documents in the cloud. Instead of going through the additional steps of uploading a Google document or a file created in Microsoft 365 OneDrive to share a file, the author simply includes a hyperlink to the saved file. When the recipient receives the email or chat, it looks like a standard attachment, but when they open it, as if it were a standard attachment, it opens the file from location directly in the cloud. Some modern platforms do not offer the user a choice, that is, a hyperlink (often referred to as a “modern attachment”) to share a file is the only option available. In other scenarios, a company’s IT policy may require that for all modes of communication, attached files be shared through hyperlinks.
So what happens when correspondence containing hyperlinks to internal documents appears during production of eDiscovery? A New York court recently addressed the issue, but the decision has met with criticism and skepticism. While it is important to understand where the courts are now, it is even more essential to prepare for different points of view.
Recent case law
In the case of Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (SDNY Mar 11, 2021), the court ruled that hyperlinks are not the same as attachments of physical documents for eDiscovery production purposes. In their ESI protocol, the parties agreed to use Google Vault to collect the data the defendants stored in Gmail and Google Drive. During the review, the complainants discovered that a common practice was to include hyperlinks to internal files instead of physically attaching documents to their emails. The plaintiffs asked the court to ask the defendants to use an external provider that could remember and produce hyperlinks as part of the document family, as this could not be accomplished with Google Vault. This is where the question arises as to whether hyperlinks should be considered attachments.
The trial judge cited additional costs and delays as a reason for not granting the request, finding that this made the request disproportionate to the needs of the case. The judge also mentioned that the protocol did not specifically mention hyperlinks, even though it referred to a list of metadata. Instead, she told the plaintiffs to ask the defendants for specific hyperlinked documents that they had not produced. This is a major issue that will undoubtedly be raised again in other courts, as it requires the receiving party to associate separately produced documents with thousands of hyperlinks in emails to determine s ‘they were legitimately produced.
Another interesting part of this ruling is that in one breath the judge said that a hyperlink is not synonymous with attachment, but in another breath she recognized that the inclusion of hyperlinks on physical attachments is now common practice. Even so, she always said they can’t be the same because a hyperlink doesn’t always point to relevant information about a case, but a physical attachment would because it acts as an extension of the conversation. She used examples like a hyperlink to shipping information or contact information. While there is some merit to this line of thinking, the point is that there are many situations where hyperlinks serve as “modern attachments” that point to a relevant document stored internally on a cloud platform. . Without making one-time collection efforts, these documents will not necessarily link to the correct email with the correct version of the shared file, which will also hamper the review and ultimately delay the case.
This decision was challenged in the district court, which ultimately upheld the magistrate’s decision. The tribunal essentially concluded that the high onus to overturn this decision had not been respected and that the reasons given were sufficient to conclude that the complainants’ request was not proportionate, but did not comment on the substance of the decision. of the judge. This leaves plenty of room for future courts to determine whether the position of hyperlinks not being an attachment is too strict and inappropriate based on current technological practices for referencing key documents in an email or other communication mechanism.
What to expect
As stated, it is fair to say that the issue of hyperlink generation is not a closed matter simply because of the Nichols decision. Just as opinions on other topics related to eDiscovery have evolved and changed over the years, the trend will certainly continue with hyperlinks and other new ESI sources emerging and dominating modern communication. Litigants should anticipate certain challenges in the near future when hyperlink production becomes the subject of an eDiscovery disagreement. There will likely be strong pressure for the courts to receive more technological education on this issue.
First, the fact that more people are using hyperlinks to reference internal documents is a significant indicator that they should be treated the same as physical attachments. More and more companies are using collaborative platforms to create, edit and manage content. For this reason, hyperlinks are used on physical attachments due to how technology works. That alone presents a strong argument that hyperlinks should be considered modern attachments. In addition, without sharing the contents of the file, is it possible to make a substantive decision on the context of the communication under consideration?
The resulting technological consequences will also be very heavy for the examining party. When this question arises in future courts, the need for eDiscovery experts will likely be needed to illustrate how more cost-effective it can be to deploy collection methods that capture hyperlinks as part of a document family. Being able to tie everything together will reduce the time associated with finding and associating hypertext documents with their initial correspondence. Additionally, a key principle of eDiscovery fueled by Federal Rule 34 is that data is disclosed in a reasonably usable form. Expect future parties to talk more about this, as there is certainly a strong argument that not having hyperlinks linked to the original emails may be deemed unusable and put too much of a burden on the person. the examining party. Allowing for additional collection efforts that can put it all together can alleviate this problem and there are solutions on the market today that do this easily and cost effectively.
A point of the Nichols The case that can help minimize issues like this, or at least bring them to the fore before data collection begins, is the emphasis on the language of the protocol. When creating ESI protocols, be sure to reference modern attachments if you expect them to be widely present in producing documents and links to data relevant to the case. If the other party doesn’t agree, it can at least be taken to court before time and money is spent on eDiscovery. If your organization or the opposing party uses Microsoft 365 or Google Workspace, modern attachments are likely to be present in emails and chat data. This could work in the party’s favor if it seeks specialist suppliers to help with data collection, as the costs will not have been spent yet. Just as the language of a lease dictates disputes between landlords and tenants, many courts look to ESI protocols to govern eDiscovery disagreements.
Litigants should continue to watch the evolution of the modern debate on attachments and hyperlinks over the coming months. There is a high probability that other judges will deviate from Nichols restrictive view of hyperlinks that are not attachments. As more courts get a glimpse of the new reality of how emerging technology stores attachments, the benefits of obtaining the files associated with modern attachments and systematic solutions continue to come to market. , the consensus could switch in the other direction. Recently, and as the understanding of modern attachments matures, regulators are now requesting hypertext documents in their applications. If requests from government regulators continue to include hypertext documents and as case law evolves we will likely see this shaping what is discussed in Rule 26 (f) meet and confer, how requests for documents are drafted. and in the content of the ESI.
Those responsible for eDiscovery should also expect more modern debates to continue, for example whether Zoom transcripts are discoverable, the collection and retention of communications from ephemeral platforms, or the failure to do so. Failure to suspend the automatic deletion of messages on collaborative platforms may result in penalties. Knowing which technology is relevant and becoming more popular will help prepare for some of these eDiscovery hurdles and shed light on the data that needs to be preserved and collected. Remember, we live in an age where communication habits change rapidly, so staying informed is the only way to be truly prepared for the future of eDiscovery.