How to Manage Hyperlinks: Current and Future eDiscovery Practices | Epic
As digital habits change and the shift to virtual work continues to evolve across enterprises, new eDiscovery challenges will inevitably emerge. For example, litigants commonly debate the use of AI technology in eDiscovery protocols. One party often alleges spoliation of electronically stored data when the other fails to produce relevant evidence. Or an eDiscovery service provider hits a snag when trying to collect data that’s hard to export and review, like free-form conversations conducted in chat apps. These are just a few examples of eDiscovery issues that have surfaced in recent years. Now the topic of whether hyperlinks are detectable has taken center stage.
Consider the following scenario. Someone writes an email to a colleague and wants to include a memo they created. Today, many people create and save documents in the cloud. Instead of going through the extra steps of uploading a Google Doc 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, they open the file from the location directly in the cloud. Some modern platforms don’t give the user a choice, i.e. including a hyperlink (often called a “modern attachment”), sharing 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 via hyperlinks.
So what happens when correspondence containing hyperlinks to internal documents appears during eDiscovery production? A New York court recently addressed the issue, but the decision has been met with criticism and skepticism. While it is important to understand the current position of the courts, it is even more essential to be prepared for different points of view.
Recent case law
In the case of Nicholas c. Nom, Inc., No. 20-CV-3677 (LGS) (KHP) (SDNY Mar. 11, 2021), the court ruled that hyperlinks are not the same as physical document attachments for eDiscovery production purposes. In their ESI protocol, the parties had agreed to use Google Vault to collect data that the defendants stored in Gmail and Google Drive. During the review, complainants discovered that a common practice was to include hyperlinks to internal files instead of physically attaching documents to their emails. Plaintiffs asked the court to instruct 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 of whether hyperlinks should be considered attachments arose.
The trial judge cited the additional costs and delays as a reason for not granting the motion, finding that it made the request disproportionate to the needs of the case. The judge also mentioned the fact 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 hypertext materials that they had not produced. This is a major issue that will no doubt be raised again in other courts, as it requires the receiving party to associate separately filed documents with thousands of hyperlinks contained in emails to determine whether they were legitimately produced.
Another interesting part of this decision is that in one breath the judge said that a hyperlink is not synonymous with an attachment, but in another breath she acknowledged that the inclusion of hyperlinks on exhibits physical attachments is now common practice. Even so, she always said they can’t be the same because a hyperlink won’t always link 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 this line of thinking has some merit, the fact is that there are many situations where hyperlinks serve as “modern attachments” that link to a relevant document stored internally on a cloud platform. Without unique collection efforts, these documents will not necessarily be linked to the correct email with the correct version of the shared file, which will also hinder review and ultimately delay the case.
This decision was challenged in the district court, which ultimately upheld the investigating judge’s decision. The court essentially found that the heavy burden to overturn that decision had not been met and that the grounds given were sufficient to conclude that the plaintiffs’ claim was not proportionate, but did not comment on the substance of the claim. judge’s decision. This leaves plenty of room for future courts to determine whether the position that hyperlinks are not an attachment is too strict and inappropriate based on current technology practices for referencing key documents in an email or other mechanism of communication.
What to expect
As noted, it is fair to say that the issue of hyperlinking is not a closed topic simply because of the nichols decision. Just as opinions on other eDiscovery issues have evolved and changed over the years, the trend is sure to continue with hyperlinks and other new ESI sources emerging and dominating modern communication. Litigants should anticipate certain challenges in the near future when hyperlinking is the subject of an eDiscovery disagreement. There will likely be strong pressure for 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 the way technology works. This alone presents a strong argument that hyperlinks should be considered modern attachments. Moreover, without sharing the contents of the file, is it possible to make a substantive decision on the context of the communication examined?
The resulting technological consequences will also be very heavy for the examining party. When this issue 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 family of documents. Being able to link everything together will reduce the time involved in finding and associating hyperlinked documents with their original correspondence. Additionally, a key principle of eDiscovey powered 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 impose too heavy a burden on the examining party. Allowing additional collection efforts that can tie everything 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 case that can help minimize issues like this, or at least bring them to the fore before data collection begins, is the emphasis on protocol language. When creating ESI protocols, be sure to reference modern attachments if you expect them to be widely present in document production and linked to data relevant to the case. If the other party disagrees, it can at least be taken to court before time and money are 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 vendors to help with data collection, since the costs will not have been spent yet. Just as the language of a lease dictates disputes between landlords and tenants, many courts are turning to ESI protocols to govern eDiscovery disagreements.
Litigants should continue to watch the evolution of the modern debate over attachment and hyperlinking in the months ahead. There is a high probability that other judges will deviate from nichols restrictive view of hyperlinks not being attachments. As more courts get a glimpse of the new reality of how emerging technology stores attachments, the benefits of getting files associated with modern attachments and systematic solutions continue to come to market, consensus can swing the other way. Recently, and as the understanding of modern attachments matures, regulators are now asking for hyperlinked documents in their applications. If requests from government regulators continue to include hyperlinked documents and case law changes, we will likely see that shape what is discussed in Rule 26(f) meets and confers, how requests for documents are drafted and in the content of the ISE.
eDiscovery managers should also expect more modern debates to continue, such as whether Zoom transcripts are detectable, the collection and preservation of communications from ephemeral platforms, or whether not suspending the automatic deletion of messages on collaborative platforms may lead to sanctions. Knowing which technology is relevant and becoming more popular will help prepare for some of these eDiscovery hurdles and shed light on what data needs to be curated and collected. Remember that we live in a time when communication habits are changing rapidly. Staying informed is therefore the only way to be truly prepared for what the future of eDiscovery holds.