As digital habits change and the shift to virtual work continues to evolve in business, new eDiscovery challenges will inevitably emerge. For example, litigators commonly debate over the use 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 is faced with an obstacle when attempting to collect data that is difficult to export and review, like free-form conversations conducted within chat apps. These are just a few examples of eDiscovery issues that have emerged in recent years. Now, the topic of whether hyperlinks are discoverable has taken the stage.

Consider the following scenario. Someone writes an email to a colleague and wishes to include a memorandum they created. Today, many people are creating and saving documents in the cloud. Instead of going through the extra steps of downloading a Google Doc or 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 they would a standard attachment, it opens the file from the location directly in the cloud. Some modern platforms do not present the user a choice, that is, including a hyperlink (frequently referred to as a ‘modern attachment’), to share a file is the only option available.  In other scenarios, an enterprise’s IT policy may require that for all communication modes, attached files must be shared via hyperlinks.

So, what happens when correspondence containing hyperlinks to internal documents pop up during eDiscovery production? A New York court recently addressed this issue, but the ruling has faced some criticism and skepticism. While it is important to understand where courts currently stand, it is even more critical to prepare for differing viewpoints.

Recent Case Law

In the case of Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (S.D.N.Y. Mar. 11, 2021), the court ruled that hyperlinks are not the same as physical document attachments for purposes of eDiscovery production. In their ESI protocol, the parties had agreed to using Google Vault to collect data that defendants stored in Gmail and Google Drive. During review, plaintiffs 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 have defendants use an outside vendor that could recollect and produce hyperlinks as part of the document family, as this could not be accomplished with Google Vault. This is where the issue of whether hyperlinks should be viewed as attachments arose.

The magistrate judge cited extra costs and delays as the reason for not granting the motion, finding that this 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 referenced a list of metadata. Instead, she told plaintiffs to ask defendants for specific hyperlink documents that they did not produce. This is one major issue that will undoubtedly be raised again in other courts, as it puts a burden on the receiving party to associate separately produced documents to thousands of hyperlinks contained in emails to determine if they were rightfully produced.

Another interesting part of this ruling is that in one breath the judge says a hyperlink is not synonymous to an attachment, but in another breath, she recognized that including hyperlinks over physical attachments is now a common practice. Even so, she still said they cannot be the same because a hyperlink will not always link to relevant information to a case, but a physical attachment would because it acts as an extension of the conversation. She used examples like a hyperlink to shipment information or contact information. While there is some merit to this line of thinking, the fact of the matter is that there are numerous situations where hyperlinks are serving as “modern attachments” that link to a relevant document stored internally on a cloud platform. Without deploying unique collection efforts, these documents will not necessarily be tied to the correct email with the correct version of the file shared, which will also impede review and end up delaying the case.

This ruling was challenged in the district court, which ultimately upheld the magistrate judge’s decision. The court basically found that the high burden to overturn this decision was not met and the reasons given were sufficient to hold that the plaintiffs’ request was not proportional but did not comment on the substance of the judge’s ruling. This leaves a lot of room open for future courts to delve into whether the stance of hyperlinks not being an attachment is too strict and inappropriate based on current technological practices for referencing key documents in an email or other communication mechanism.

What to Expect

As noted, it is fair to say that the issue of hyperlink production is not a closed matter just because of the Nichols decision. Just as opinions on other eDiscovery matters have evolved and changed throughout the years, the trend will certainly continue with hyperlinks and other new ESI sources that emerge and dominate modern communication. Litigators should anticipate some challenges in the near future when hyperlink production is the subject of an eDiscovery disagreement. There will likely be a strong push for courts to receive more technological education on this matter.

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 businesses are using collaborative platforms to create, edit, and manage content. Because of this, hyperlinks are being used over physical attachments due to the way technology functions. This alone presents a solid argument that hyperlinks should be viewed as modern attachments. Furthermore, without the content of the file shared, is it possible to make a substantive decision on the context of the communication being reviewed?

The technological consequences that result will also be very burdensome to the reviewing party. When this issue arises before future courts, the need for eDiscovery experts will likely be necessary to illustrate how much more cost efficient it can be to deploy collection methods that capture hyperlinks as part of a document family. Being able to tie everything together will cut down on the delays associated with having to search and associate hyperlinked documents to their initial correspondence. Additionally, a key eDiscovey principle fueled by federal Rule 34 is that data is disclosed in a reasonably usable form. Expect future parties to home in more on this, as there is definitely a solid argument that not having hyperlinks related to the original emails can be deemed unusable and place too much burden on the reviewing party. Allowing for extra collection efforts that can thread everything together can alleviate this concern and there are solutions on the market today that do this easily in a cost-effective manner.

One point from the Nichols case that can help minimize issues like this, or at least bring them to the forefront before data collection begins, is the strong focus on protocol language. When creating ESI protocols, make sure to reference modern attachments if you anticipate they will be largely present in the document production and link to data relevant to the case. If the other party does not agree, at least it can be brought before the court prior to time and money being spent on eDiscovery. If your organization or the opposing party uses Microsoft 365 or Google Workspace, it is likely that modern attachments are present in email and chat data. This might work in the party’s favor if they are seeking specialized vendors to help with data collection, since costs will not yet have been expended. Just as the language in a lease dictates disputes between property owners and tenants, many courts are looking to ESI protocols to govern eDiscovery disagreements.

Conclusion

Litigators should continue to observe how the modern attachment and hyperlink debate evolves in the coming months. There is a high probability that other judges will depart from Nichols restrictive view of hyperlinks not being attachments. As soon as more courts have insight into the new reality of how emerging technology stores attachments, the benefits gained by obtaining the files associated with modern attachments and systematic solutions continue to come to market, the consensus may sway the other way. Recently, and as the understanding of modern attachments mature, regulatory bodies are now asking for hyperlinked documents in their requests. If government regulators requests continue to include hyperlinked documents and as case law changes, we are likely to see that shape what is discussed in Rule 26(f) meet and confers, how document requests are written, and in the content of ESI.

Those responsible for eDiscovery should also expect more modern debates to continue, like whether Zoom transcripts are discoverable, collection and retention of communication from ephemeral platforms, or failure to suspend automatic deletion of messages on collaborative platforms can result in sanctions. Knowing what technology is relevant and becoming more popular will help prepare for some of these eDiscovery obstacles and shed light on what data needs to be preserved and collected. Just remember, we live in a time where communication habits are changing rapidly so keeping informed is the only way to truly be prepared for what the eDiscovery future holds.

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