As technology evolves, our treatment of electronically stored information (ESI) for discovery purposes also evolves. Today, hyperlinks are frequently used in communications to connect the reader to another source document.
Just as we master the treatment of “families” of documents – parent emails with child attachments, existing in time and space exactly as the day they were sent – the hyperlinks appear as the “new attachments”. Hyperlinks, however, are different from attachments in several important respects: they are stored in a separate location from the email or document (this could be, for example, somewhere else in an entity’s server environment or outside of a website). Source data can be moved, deleted or even modified from the source at any time, and this modification will not be reflected in the parent email or document. In the context of an email containing hyperlinked information, the family, in essence, is not preserved in space and time because it can be dynamic.
So how do we treat the hyperlink for discovery purposes? Is the link an attachment? Should it be captured as part of the universe of documents to review? Does it depend on the public accessibility of the source data? At least one court has considered the issue so far and more may do so shortly. Magistrate Judge Parker (Southern District of New York) faced this problem in her recent discovery decision in Nichols v. Noom2021 WL 948646 (SDNY 2021) (“Noom”) In Name, the parties attempted to do all the right things regarding their electronically stored information (ESI) exchange. For example, they attempted to negotiate an ESI protocol from the outset, in accordance with the best practices of the Sedona principle. But disagreements surfaced early on. After several conferences with the court, Noom agreed to collect data from multiple sources, including Gmail, G-chat, Google Drive, Google Calendar, Slack, and other reporting tools and databases. A dispute has arisen over the pros and cons of competing tools for collecting Gmail data. The plaintiffs wanted Noom to use Metaspike’s Forensic Email Collector (FEC), while Noom wanted to use Google Vault. The main difference between the two is that Google Vault does not pull documents referenced in emails via a hyperlink.
The court held a hearing on the matter, aided by statements from eDiscovery vendors. Noom argued that it is reasonable to use Google Vault to collect Gmail documents because Noom separately collects Google Drive documents that are referenced as file hyperlinks through its storage and sharing collections. The court determined that Noom could use its preferred software to collect the data, but if there were particular key documents containing hyperlinks where the hyperlinked documents could not otherwise be located in production, plaintiffs could raise the issue with the court. court and Noom would be required to make the connection. Noom was willing to do this for a reasonable number of documents.
But, once the exchange of documents began, the plaintiffs wanted another bite of the apple. They noticed that there were thousands of internal Noom documents containing hyperlinks to other internal Noom documents and asked the court to reconsider and rule that the hyperlinked internal documents be treated as attachments (forcing Noom to examine and produce or register). There was no agreement between the parties because the ESI protocol did not specifically address this issue. And Gmail and Google Drive data (which included most of the relevant hyperlinked documents) had already been collected. The Court issued a decision that took into account proportionality, cost and time. He determined that hyperlinks are not equivalent to attachments and upheld the original decision that the defendant did not need to re-collect data with family attachments in place:
When a person creates a document or an email with attachments, the person provides the attachment as a necessary part of the communication. When a person creates a document or email with a hyperlink, the hyperlinked document/information may or may not be necessary for communication. For example, a legal memorandum may contain hyperlinks to cases cited therein. The court does not consider linked records to be attachments. A document can also contain a hyperlink to another part of the same document. Nor is it an attachment. A document can have a hyperlink shortcut to a SharePoint folder. The entire file would not be an attachment.
The court found that the protocol it had previously established, requiring the parties to raise the issues document by document, struck the appropriate balance for the purposes of the case.
Take away food :
Use eDiscovery vendors and experts to help bring your ESI issues to court.
This is an evolving area of law. If you want hyperlinks to be treated in a certain way during discovery, negotiate it early in the ESI protocol, before either party incurs significant costs in discovery.
Proportionality, cost and time are always good arguments in discovery disputes, especially when time and money have already been spent on discovery.
Fight for what is really important. Maybe thousands of hyperlinks are not important, but ten hyperlinks are important. Submit these specific issues to the Court and you will likely obtain the most targeted relief.
©2022 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XII, Number 34