e-Discovery Best Practices: Hyperlinks vs. Attachments | TransPerfect Legal Solutions

One of the most important emerging issues in eDiscovery concerns how courts should deal with emails containing hyperlinks to other documents.

Should these emails be produced with a family relationship, like traditional emails and their attachments?

Although this issue is far from settled, a recent decision by the Southern District of New York, Nichols v. Noom, 20-cv-3677, 2021 WL, provides helpful advice.

More specifically, the Name decision holds that:

(1) Lawyers should proactively address the treatment of hyperlinks in their ESI protocol, and

(2) In the event of a dispute on this question, the result should be determined by examining the respective charges of the parties.

Attachments vs Hyperlinks

First, what are hyperlinks and how are they different or the same as traditional 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. Both pieces of information represent an immutable snapshot in time. The email and attachments will be received in exactly the same condition as 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 separate location from email, as opposed to email. himself. This makes hyperlinks different from traditional attachments because the underlying documents are not snapshots in time. Instead, they are works 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 that same file at the time the underlying email was sent.

the Name Decision

Nichols v. Noom discussed the fundamental 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 the “children” hyperlinks be produced sequentially after their “parents”?
  • Is it sufficient to produce relevant emails and documents separately, as they are in the organization’s systems at the time of collection?

The plaintiffs requested “clarifications” or a review of the magistrate’s orders regarding the production of documents by the defendant Noom. Noom used Gmail for its communications and stored its documents on Google Drive. Employees used to send Gmail communications with embedded hyperlinks pointing 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 its emails, but that if the plaintiffs identified hyperlinked 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 plaintiffs argued that “hyperlinks are akin to attachments” and should be filed with their parent emails as families. They asked the Court to require Noom to either use a specific forensic collection device or create a new computer program to produce hyperlinked documents as attachments.

Noom has taken the position that hyperlinked documents are not the same as attachments. She argued that she was already producing the referenced hyperlinked documents through her collection of organizational and custodial documents. He also argued that he should be allowed to choose his own method of collection rather than shoulder the added burden of making redundant production simply to meet the defendant’s request to reproduce documents with family connections. Additionally, he presented evidence that the cost of using the plaintiff’s preferred forensic tool would be nearly $180,000, which he claimed was not commensurate with the needs of the case.

Disagreeing with plaintiffs that a hyperlinked document is an attachment, and concluding that they did not need all of the hyperlinked documents anyway, the Court upheld the collection method chosen by the defendants. Critically, the parties’ ESI stipulation addressed typical email attachments, but was silent on the issue of emails containing hyperlinks.

In the absence of agreement between the parties and the Gmail and Google Drive data (which included all relevant hyperlinked documents) already collected, the Court rendered a decision which took into account proportionality, cost and time. He determined that hyperlinks are not equivalent to attachments and upheld the magistrate’s decision that the defendant did not need to re-collect data with family attachments in place. Rather, it could provide information about these relationships in response to specific requests from the applicant.

So what should lawyers do about hyperlinks?

Name Nevertheless, there is no real consensus as to whether it is standard to maintain family relationships between emails and linked documents. This decision shows us that the courts will not automatically treat hyperlinks as traditional attachments. Accordingly, there are two main takeaways for lawyers:

  1. If an attorney wishes to maintain the “family” relationship of the hyperlink to the email, they will need to write the ESI protocol specifically to account for the nature of the hyperlinks. In the absence of clear discussion and negotiation, there is at least a reasonable chance that a court will decide otherwise. Thus, it is essential that lawyers understand the nature of their clients’ and opponents’ email data before negotiating the ESI protocol.
  2. This decision suggests that in the event of a dispute over the collection of hyperlinked materials, courts will be inclined to craft a solution that takes into account the factors of proportionality, cost and time. the Name The court did just that by avoiding plaintiff’s request for expensive and time-consuming technical solutions to connect emails to their embedded hyperlinks. This is especially logical when most of the embedded documents are not material to plaintiffs’ claims or defenses anyway. Consistent with the proportionality requirement of FRCP 26(b), it seems unlikely that a court would require a litigant to incur significant expense or delay to comply with his opponent’s preferred method of production, particularly where time and money has already been spent on the effort. .

Lawyers and courts will need to change their understanding of detectable communications as technology continues to evolve and develop. The best-prepared lawyers will have thought through the matter as soon as possible and enter into discovery negotiations with a plan in place.

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