E-Discovery Hyperlinks Debate Won’t Resolve Technical Challenges

Welcome to the latest debate in electronic discovery: whether embedded hyperlinks to cloud-based files in emails and other communications should be treated as “modern attachments.”

Of course, Word documents, PDFs, and other forms of email attachments are usually discoverable. Calling hyperlinks in emails modern attachments is loaded terminology that argues for making those resources discoverable as well. For neutrality’s sake, we use the variations on the term “hyperlinks” here.

Typically, proponents of treating them as modern attachments are plaintiff-oriented requesting parties, and opponents are defense-oriented producing parties. “It’s evidence,” requesting parties claim. “It’s not proportional,” producing parties claim. And so it goes.

No matter which side wins, technical challenges persist, and these challenges often reemerge with each new data source. Still, understanding the legal backdrop, recent court cases can help you assess the issues.

Cloud

Historically, emails and loose files have been the primary source of discoverable electronically stored information, or ESI, in litigation. When e-discovery became a more prevalent discipline, most electronic evidence was also located on-premise.

More recently, organizations have begun to move mission-critical systems to cloud platforms. The average number of cloud applications organizations use worldwide grew from eight in 2015 to 130 by 2022. The push to reduce redundant data, combined with centralized storage of data files in the cloud, has created a need to share files within the cloud instead of embedding them within messages.

While that practice has significant information governance benefits—including reduced redundancy of sharing the same file to multiple recipients—it can cause significant e-discovery challenges. One of the biggest is that the file to which the sender linked may have been edited or deleted since it was sent. A copy of the file sent might not be available for discovery purposes.

Though sending emails or other communications with hyperlinks has always been a consideration for e-discovery, those hyperlinks weren’t common until about five years ago. Because embedded hyperlinks have replaced embedded attachments in many cases, some practitioners consider them to be modern attachments, while others don’t consider them to be attachments at all.

Courts

Case law rulings, and commentary on those rulings, have intensified the debate over embedded hyperlinks. The decisions in Nichols v. Noom in 2021 and In re StubHub Refund Litigation last year were determined by the ESI protocol the parties agreed to.

In the Nichols case, the court ruled the defendants didn’t have to treat the linked files as attachments because there was no agreement to do so, whereas the court ruled in StubHub that they did have to produce them as attachments because there was an explicit agreement to do so.

The plot thickened with In re Uber Techs. Passenger Sexual Assault Litigation, decided in April. The matter also involved a linked files dispute between the parties attempting to agree on an ESI protocol, but this time, the court provided an in-depth discussion of the issues.

The court addressed the technical challenges of retrieving the correct version of the document, noting Google Vault’s inability to collect the contemporaneous versions of hyperlinked documents and the limitations on doing so for Google Drive documents.

But the court also noted the importance of the evidence and agreed with the plaintiffs that the definition of “attachments” should include “modern attachments, pointers, internal or non-public documents linked, hyperlinked, stubbed or otherwise pointed to within or as part of other ESI.”

Other recent cases also reference technical and manual limitations with some tools around discovery, such as collection and export capability, and managing the relationship between files linked to messages. Some third-party companies provide solutions, but there’s no “easy-button” solution for the collection of linked files that can support all the requirements a discovery team may have.

Regardless if linked files should be treated as modern attachments, providers of platforms where the data is stored are clearly trying to address the challenges associated with a modern-attachments approach. Third-party tools are also continuing to improve and add features to help automate collection of linked files. In any event, legal professionals who understand the state of the technology and the courts stand to come out ahead.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

David Greetham is vice president of digital forensics at Level Legal.

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