As evolving data communication platforms create new ways for employees to communicate, legal solutions must adapt in order to keep up with the resulting larger, more complex cases.
A prime example is the rapid adoption of hyperlinked files instead of the traditional attachments in emails. This simple shift in how we work together has had cascading effects on how we approach ediscovery.
What are hyperlinked files, or modern attachments?
Users of cloud-based platforms, such as Google Drive or Microsoft OneDrive, share links to collaborative cloud documents. These files are colloquially known by Google Workspace users as “hyperlinked files” and Microsoft users as “modern attachments.” However, despite their widespread usage, how we treat hyperlinked files in ediscovery is a hotly debated topic in the legal world.
How are modern attachments different from traditional attachments?
Unlike traditional attachments, such as email attachments, which are actually embedded within the email file, modern attachments are not part of the email message file. Instead, the hyperlinks point to a file or document that is stored in a different location than the email, which raises questions about whether they should be treated as part of the email's "family."
Ediscovery for emails: the challenges of hyperlinked files
Producing documents together with their family members is the industry standard, and is required by most ESI protocols. Document families provide important contextual understanding, helping legal teams work out the communications and relationships between parties. They make it easier to answer the questions, “Who knew what? And when did they know it?” which can be critical for building a strong case. But does a hyperlinked attachment create a family?
This creates significant complications during production. Which version of the hyperlinked file should be produced – the document shared at the time of the email, or the most recent version? And who is the custodian of these files, since a number of people have access and control over them? These technical discrepancies with hyperlinked files make identifying and matching them to an email incredibly challenging.
Further complicating the issue, these hyperlinked files are collaborative cloud-based documents. Files in Google Drive or Microsoft OneDrive are dynamic, meaning they can be altered, moved, or even deleted any time after they were shared, by anyone with access to those files.
Legal rulings: how to treat hyperlinked files
The debate around hyperlinked files has been a contentious one in the legal industry. There have been several precedent-setting examples that we can look to to help shape our best practices for incorporating hyperlinked documents into the ediscovery process.
Nichols v Noom
One of the first rulings on this topic came from Nichols v. Noom, Inc, a class-action lawsuit out of the U.S. District Court in the Southern District of New York. The ESI protocol agreed upon prior to discovery addressed the matter of traditional email attachments, enforcing the family relation. However, they did not outline any direction for the use and production of hyperlinked files.
Unfortunately, the plaintiff (Nichols) did not realize that the defendant (Noom) almost exclusively used the Google suite for all their communications and collaborative work. Nichols claimed that while Google Vault would export the hyperlinks, it wouldn’t produce the actual documents. They argued that Noom should have to use a third-party tool to include those documents with their “parent” emails.
Noom asserted it should be permitted to choose its own method of collection, rather than take on an additional burden, simply to meet the defendant’s demand of re-producing documents they had already produced. Fortunately for Noom, the judge agreed. The ruling suggests that unless the ESI protocol had agreed-upon language regarding hyperlinked documents, any court would be inclined to lean into the factors of proportionality, cost, and delay when making any ruling about document production.
Meta and StubHub
Proportionality, cost, and delay are critical variables to consider, especially before crafting an ESI protocol. A clear understanding of your production capabilities can save significant time, while neglecting due diligence can create a massive headache for both sides. These two outcomes are on display in recent cases surrounding Meta and StubHub respectively.
Prior to drafting an ESI protocol, Meta argued to the court that including hyperlinked files as attachments was not a standard practice, and changing its established production workflow would add serious time, complexity, and cost to the process. In the end, the judge sided with Meta, ruling that the agreed-upon protocol should make clear that hyperlinked documents are not treated as conventional attachments, again taking into account proportionality, cost, and delay.
On the other hand, StubHub, after previously agreeing to a protocol that included hyperlinked documents as attachments, soon learned that limitations with its collection tools made doing so not feasible. StubHub’s request to amend the ESI protocol caused a year of delay in the case, and after months of debate, the judge finally agreed, allowing StubHub to make changes to the ESI protocol. While StubHub’s request was made in good faith, its negligence in not doing the proper research into their own capabilities prior to agreeing to the ESI protocol caused significant setbacks, and incurred substantial cost for both sides.
Best practices for handling hyperlinked files
While developments in legal tech are changing the landscape of this debate, it is still imperative to understand the common pitfalls and existing precedent surrounding hyperlinked files. Given the intertwined relationship between legal frameworks and the constantly transforming digital landscape, developing and following clear best practices allows you and your team to remain flexible.
Do your research
Make sure you have a very clear understanding of the workflows and tools used by the opposing side. As we saw with the Noom case, not having insight into how your opponent conducts their work can create serious headaches down the road.
Make sure you can comply
Your due diligence prior to creating an ESI protocol extends beyond just understanding the opposing side. It is imperative that you know the limitations of your data collection and production tools. StubHub stepped into this particular quagmire by agreeing to a protocol that they were unable to comply with.
Develop a clear ESI protocol
Only after thorough research into the opposing sides' workflows as well as your own capabilities should you draft your ESI protocol. A clear and comprehensive protocol can only be achieved once all variables, both internal and external, have been considered. However, it is important to note that even if you request hyperlinked files to be included as attachments based on your research, the opposing side may still disagree. And as we have seen, judges are inclined to rule on this topic along the lines of proportionality, cost, and delay.
My own arguments
I am no stranger to the debate surrounding hyperlinked files and their inclusion as attachments. My time at Google overlapped with the creation and launch of Google Drive, and I frequently had to provide my opinions on hyperlinked files.
Google Drive launched in 2012, and up until late 2023, the ability to programmatically relate the emails and linked Drive files was cumbersome. Like the court cases above, my consistent argument was also along the lines of proportionality, cost, and delay. There was no programmatic method in place to produce emails and hyperlinked files together, and altering workflows to find a workaround was simply not feasible. However, recent tech advancements, such as Google Vault now exporting Gmail messages and hyperlinked files together, make the burden argument less defensible. Not to mention, legal tech now makes it easy to navigate and manage hyperlinked files regardless of what an established ESI protocol may dictate.
The role of technology in ediscovery for modern attachments
Existing ediscovery tools have been ill-equipped to take on this burden, and adapting workflows is often not a feasible option. Fortunately, DISCO has taken great strides to address this, offering customers the flexibility to decide how to treat these hyperlinked files.
DISCO’s approach to ediscovery for hyperlinked files
DISCO Ediscovery gives you the option to either treat hyperlinked Google Drive files as real family members or not.
This choice is important for users as it impacts how these hyperlinked documents are searched, reviewed, and produced. In both cases, the emails will still be ingested with deduplication into DISCO.
No Family Creation
By default, DISCO will not treat hyperlinked files as part of the email’s family, however, it can be related via specialized scripting from DISCO’s Data Operations team.
Additionally, if a hyperlinked file has multiple parents, as is the case with documents shared in multiple emails by different custodians, DISCO will make a copy of the document and attach each to its own family.
Family Creation
If users decide to treat hyperlinked files as actual family members, they need to let DISCO Project Management or DISCO Forensics team know at the start of a new database. Otherwise, a ticket needs to be submitted to DISCO for data ingestion that explicitly requests that hyperlinked files be treated as real family members.
Regardless of which family option is chosen, DISCO will transform the metadata files and create custom metadata fields including the key information like author, collaborators, editors, date modified and created.
These fields will:
- Add a group identifier that links an email, any real attachments, and the hyperlinked file, allowing them to be easily searched as groups.
- Add a “Yes” value for any email containing a hyperlinked file, or any document that is being referenced as a hyperlinked document by an email.
- Mark an email if a hyperlinked file is referenced but was not collected or provided.
As usage of collaborative cloud documents increases, firms are forced to conduct more in-depth scrutiny into their vendors’ capabilities and the language used in ESI protocols. Project managers with DISCO Professional Services regularly review ESI protocols, and ensure that any stipulations involving hyperlinked documents are clear, and will provide guidance on the best ways to proceed given the specifics of the case.
Efficiency and compliance with DISCO
Collaborative communication platforms have become the new standard across nearly every industry, resulting in updates to ESI agreements and processing protocols. Before engaging in a collection on behalf of your client or organization, schedule a demo with DISCO experts to ensure you’re able to take advantage of the most efficient review workflow and comply with your production specifications.
