As the use of collaboration and cloud storage platforms grows, litigants and courts face increased challenges in complying with eDiscovery requirements created with different technologies in mind. An example is the discovery obligations associated with files referenced in emails only by hyperlink. Should a litigant be required to find and produce this referenced document as if it were an attachment? What if it was very difficult to do? What happens if the file has been moved or changed in the meantime? The Southern District of New York recently addressed these issues and felt that – for a multitude of practical and technical reasons – such hyperlinked documents should not “necessarily” invoke obligations to collect and produce the referenced document.
In Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP), 2021 WL 948646 (SDNY March 11, 2021), the plaintiffs learned that employee defendants frequently used Gmail to send “hyperlinks” which, when clicked, should navigate to documents stored on the company’s GoogleDrive instance. The plaintiffs asked to “clarify” the initial decisions of Judge Parker refusing to oblige the production of the linked documents, arguing that the hyperlinks are akin to attachments and should therefore be produced as part of a “family” document . Further, without metadata linking the hypertext document to the email sharing the hyperlink, the complainants argued that it would even be impossible to determine whether the documents were part of this family. The plaintiffs also feared that, without strict requirements, some of the documents would escape collection and demanded that the defendants invest in a specialized tool (“FEC”) that automatically extracts hypertext documents from GoogleDrive, or create a program that would harvest all of them. hyperlinks in production so that referenced documents can be collected and associated with the relevant message.
Unsurprisingly, the defendants held on. They argued that Parker J. was correct when she referred to the collection method proposed by the defendants and reviewed the hypertext documents. not be family members; and that the complainants ‘fears of receiving an incomplete filing are unfounded, as the defendants were collecting separate GoogleDrive for relevant documents and would cooperate with the complainants’ reasonable requests to search for particular non-produced hyperlinked documents. The processes proposed by the applicants were also unreasonable. Defendant’s discovery expert submitted a statement stating that the FEC tool was unusable and that it would cost approximately $ 180,000 to collect and produce all hypertext documents, which would cause further unnecessary delays.
Parker trial judge denied the review. The Court recognized that “[t]The issues raised by applicants raise complex questions about what constitutes reasonable research and collection methods in 2021 – when old forms of email communication and documents with attachments and footnotes or endnotes are replaced through emails and documents containing hyperlinks to other documents, video, audio, or image files. It also highlights the changing nature of the way documents are stored and should be collected. ” Nichols, 2021 WL 948646, * 3. However, the Court held that, consistent with the proportionality concerns of Federal Rule of Civil Procedure 26 (b) (1) as well as the mandate of Rule 1 to ensure the fair, expeditious and inexpensive resolution of the dispute, the remedy requested by the complainants was not appropriate.
First, citing the Sedona Principles, Third Edition, the Court concluded that the plaintiffs had not demonstrated that all hypertext documents were necessary or even relevant to impose such a burden of discovery. Second, the Court noted that the ESI Protocol did not address this issue (for example, it did not define “attachments”), which the Court seemed to view as an unforced error on the part of the complainants and the request as an attempt to renegotiate the agreement. Third, the court confirmed that hyperlinks do not necessarily equate to attachments, explaining: “When a person creates a document or an email with attachments, the person provides the attachment as a necessary part. of communication. When a person creates a document or email with a hyperlink, the linked document / information may or may not be necessary for communication. For example, a legal memorandum may contain hyperlinks to a remote business library, but the entire file is not meant to be part of the document. Likewise, hyperlinks to a phone number or Facebook page may not be intended to be part of the SEO document.
This is a developing area and other scenarios (as well as technological developments) may require different determinations of when hypertext documents are “related” to attachments. However, this decision is a good reminder that, given the increasingly sophisticated communication technologies, such as Microsoft Teams, Slack and Google Drive, used by companies, it is important to consider the language in the ESI protocol which could potentially cover modes of communication used by customers.