The E-Discovery Problem of “Modern” Attachments: Case Trends in the Production of Hyperlinked Documents

Have you ever given much thought to what constitutes a “family” of documents when producing electronically stored information (“ESI”)?  Even if you are an E-discovery attorney, you very well may not have. After all, it is pretty straight forward, isn’t it?  An email and all its attachments are a document family. Sometimes, you have a document with embedded files or images that may be split off into separate documents in the collection or processing process. That document and its embedded files are a document family. And . . . that’s pretty much it, right[1]?

Well, not so fast. As cloud storage and collaboratively shared documents become more popular, we are seeing increasing numbers of emails that have hyperlinks to documents rather than conventional attachments.

So, are hyperlinked documents part of a family?

The Problem

There are several ways to think about the answer to this question. An obvious answer is “of course not.” A hyperlink is not a document, and the document the hyperlink points to is simply not attached to the document the way an actual attachment is. That someone would even use the term “actual attachment” shows that we intuitively recognize these hyperlinked documents as something else – something different from a traditional attachment. We’ve seen hyperlinks in documents before pointing to citations, websites, data sources and other helpful external objects. We’ve never treated the thing being linked to as part of the document family containing the link.

On the other hand, one might answer, hyperlinking a document is the functional equivalent of attaching a document. Either way, one is using an email or other communication to send a document to another person. The fact that the email contains a hyperlink to that document instead of attaching an electronic copy is a distinction without meaning. A hyperlink is simply another way to send a document via email to another person.

However you feel about either of those answers in the abstract, in the real world if one is ordered to produce hyperlinked documents, it tends to raise a host of issues. The primary issue is that when documents are saved in a cloud environment or something similar, every time a document is touched by the original author, or one of the hyperlink recipients, a new version of that document is typically created. In these situations, documents may end up having dozens or even hundreds of versions. Also, the hyperlink generally points to the latest version of the document, not the version that existed at the time the hyperlink was created (i.e., the “contemporaneous” or “as sent” version). Retrieving that “as sent” version of the hyperlinked document may be difficult, costly, disproportionately burdensome, or even impossible, which is frequently the case.

In an order in In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, U.S. Magistrate Judge Lisa Cisneros detailed some of the problems with hyperlinked documents.  Although her discussion involves one particular suite of document workspace and storage products, it is applicable to many document storage solutions to which emails or other communications may hyperlink. Judge Cisneros wrote

Of principle concern here, a[n email or chat] message that contains a hyperlink to a document is referencing a . . . document that may still be evolving. A recipient or others may modify that referenced document, which is centrally located so multiple people can access and edit it. Furthermore, [the storage solution] does not export, collect, or connect the contemporaneous versions of hyperlinked documents with the corresponding emails or messages in which they are found. Rather, when a hyperlinked . . . document is exported from [the storage solution], the current version of that document is exported. If a . . . document archived using [the storage solution] was edited after the email with the hyperlink to the document was sent, then the [storage solution] export will not reflect the version of the document that existed at the time of the email. For data archived using [the storage solution], and no longer in the active . . . [w]orkspace there is a manual process in place to identify a historic version of a hyperlinked . . . document contemporaneous with the email communication. [citation omitted]

Certain technologies have been developed to link email and chat messages to [active] documents, but there are limitations. [One document collection] program can retrieve active . . . [e]mail and contemporaneous versions of linked [active] documents, but it does not have the ability to do the same with . . . documents archived using [the storage solution]. [citation omitted] [Another] tool . . . extracts specific links to [active] documents from email and chat messages and certain metadata. [citation omitted]. [This tool] facilitates the grouping together of a message and document stored in [the active workspace] for purposes of review and production, and it contains certain metadata fields relevant to search, review, and production of messages.[citation omitted] However, there is no evidence that this technology, which is an extraction tool, has been refined and deployed to collect contemporaneous versions of hyperlinked documents archived with [the storage solution].

In sum, the briefing and evidence, as well as related case law, have made clear that cloud computing and document retention through [the storage solution]  introduce a host of challenges to producing hyperlinked documents . . . See Nichols v. Noom Inc., No. 20CV3677LGSKHP, 2021 WL 948646, at *2 (S.D.N.Y. Mar. 11, 2021) (recognizing that “complex questions about what constitutes reasonable search and collection methods” result from “the changing nature of how documents are stored and should be collected.”). Yet, contemporaneous versions of hyperlinked documents can support an inference regarding “who knew what, when.” An email message with a hyperlinked document may reflect a logical single communication of information at a specific point in time, even if the hyperlinked document is later edited. Thus, important evidence bearing on claims and defenses may be at stake, but the ESI containing that evidence is not readily available for production in the same manner that traditional email attachments could be produced. [citation omitted]

(Order Resolving Outstanding ESI Protocol Disputes, In re Uber Techs., Inc. Passenger Sexual Assault Litigation, No. 23-md-03084-CRB (LJC), 2024 WL 1772832 at 1-2 (N.D. Cal. April 23, 2024))

Answers From the Trial Courts

How are the courts handling these issues?  As yet, there is not a well-developed body of case law on the subject, but there are a few trial level decisions that shed some light on what the trends may be.

Nichols v Noom

Judge Cisneros, in the excerpt from her In Re: Uber Technologies order above, mentions Discovery Order Concerning Production of Hyperlinked Internal Documents, Nichols v. Noom Inc., No. 20CV3677LGSKHP, 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021). This case garnered attention in E-discovery circles when the order was issued. Indeed, KTLitSmart discussed that case in this very blog after it came down (The Modern Attachment: How to Handle Hyperlinked Documents in Emails).

In Nichols, the court explicitly stated that it did “not agree that a hyperlinked document is an attachment.” The court listed several examples.

When a person creates a document or email with attachments, the person is providing 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 to the communication. For example, a legal memorandum might have hyperlinks to cases cited therein. The Court does not consider the hyperlinked cases to be attachments. A document also may contain a hyperlink to another portion of the same document. That also is not an attachment. A document might have a hyperlink shortcut to a SharePoint folder. The whole folder would not be an attachment. These are just examples. An email might have hyperlinks to a phone number, a tracking site for tracking a mailing/shipment, a [social media] page, a terms of use document, a legal disclaimer, etc. The list goes on and on. Many of these underlying hyperlinked documents may be unimportant to the communication.

(Nichols at 4)

The Nichols court examined the ESI protocol and concluded “it is clear to this Court that there was no meeting of the minds on whether hyperlinks were attachments and this Court, when entering the order, did not view hyperlinks to be attachments. . . . In sum, the ESI order does not treat hyperlinked documents as attachments.“ (Id at 3). The Nichols court also looked at the cost and difficulty of producing hyperlinked documents, the reasonableness of the methods taken to identify and produce documents, and the ability of plaintiffs under the ESI protocols to request additional information about particular hyperlinked documents, and denied plaintiff’s request for an order requiring defendants to produce all hyperlinked documents.

In re StubHub Refund Litigation

In Discovery Order, In re StubHub Refund Litigation, No. 20-md-02951-HSG (TSH), 2023 WL 3092972 (N.D. Cal. Apr. 25, 2023), a court once again turned to the ESI protocols agreed to by the parties, reasoning that “if discovery agreements routinely turn out to be worthless and unenforceable, we deprive the parties of any reason to enter into them.” (Id at 1). The court quoted the from the ESI protocols

 For purposes of production, responsive items should include the ‘Email’ metadata/database fields outlined in the Metadata Table, including but not limited to all parent items (mail, calendar, contacts, tasks, notes, etc.) and child files (attachments of files to email, hyperlinks to internal or nonpublic documents, or other items), with the parent/child relationship Preserved.

(Id.) (emphasis in the original). 

The ESI protocol further stated that

A document and all other documents in its attachment range, emails with attachments, and email or other documents together with any documents referenced by document stubs or via links to internal document sources within those emails or other documents all constitute family groups. If any member of a family group is produced, all members of that group must also be produced . . . Hyperlinked files must be produced as separate, attached documents.

(Id.) (emphasis in the original)

The StubHub court went on to say

Litigants should figure out what they are able to do before they enter into an agreement to do something. Litigants should live up to their agreements, especially when they are embodied in court orders, as the ESI Protocol is here. And if for some reason, a party learns that a so-ordered discovery agreement has become impossible to comply with, the party should promptly move for relief . . . 

(Id at 2) (emphasis in the original.)

The court then held that StubHub must comply with the ESI agreement to produce hyperlinked documents, but stated StubHub could move to modify the ESI agreement without prejudice.

In re Acetaminophen - ASD-ADHD Products Liability Litigation

Apparently, there was no dispute about the ESI protocol ordered by the court in Order Establishing Protocol For Electronically Stored Information, In re Acetaminophen – ASD-ADHD Products Liability Litigation, No. 22md3043 (DLC), 2023 WL 196157 (S.D. N.Y. Jan. 17, 2023). The court simply entered an order establishing the ESI protocol for the matter, presumably with the agreement of the parties.

The order stated, “[e]mail attachments and embedded files or “modern attachments” (i.e., hyperlinks pointing to files stored in the cloud or a shared repository . . .) shall be collected and produced with the parent message.” (Id at 5). Although it is not absolutely clear, this language appears to mean the contemporaneous file must be produced, not just the most recent version to which a hyperlink typically points.  Interestingly, third parties whose documents are subpoenaed are also bound to this difficult standard.

In re Uber Technologies, Inc., Passenger Sexual Assault Litigation

We quoted extensively from Order Resolving Outstanding ESI Protocol Disputes, In re Uber Techs., Inc. Passenger Sexual Assault Litigation, No. 23-md-03084-CRB (LJC), 2024 WL 1772832 (N.D. Cal. April 23, 2024) at the beginning of this article. Judge Lisa Cisneros discussed the challenges of producing hyperlinked documents in her order while acknowledging that “important evidence bearing on claims and defenses may be at stake, but the ESI containing that evidence is not readily available for production in the same manner that traditional email attachments could be produced.” (In re Uber Techs. at 2).  Judge Cisneros modified the definition of attachment in the ESI protocols to include “modern attachments, pointers, internal or non-public documents linked, hyperlinked, stubbed or otherwise pointed to within or as part of other ESI” (Id at 6) but also ordered that “[t]his definition does not obligate Uber to produce the contemporaneous version of . . . documents referenced by URL or hyperlinks if no existing technology makes it feasible to do so.” (Id.)

Trial Court Trends in Production of Hyperlinked Documents

Of the four orders discussed above, three of them - Nichols, In re StubHub, and In re Uber Techs had existing ESI protocols. The courts looked at those protocols, and by and large, followed them.  In Nichols, the court found that hyperlinked documents were not attachments per the ESI protocol and declined to order that contemporaneous versions of those documents be produced, but did allow for the opposing party to make requests for more information about particular documents. In In re StubHub, the court held the producing party to the obligation in the ESI protocol to produce contemporaneous hyperlinked documents but left open the possibility of amending the ESI protocol on an appropriate motion from the producing party. And in In re Uber Techs, the court amended the definition of attachments in the existing ESI protocol to include hyperlinked documents, but allowed the producing party to not produce such modern attachments where it was not feasible for them to do so.

One order discussed above did not have a pre-existing ESI protocol - In re Acetaminophen - ASD-ADHD Products Liability. In In re Acetaminophen - ASD-ADHD Products Liability, there was apparently no dispute over hyperlinked documents, and the court entered an ESI protocol order requiring that such documents be produced, apparently with the agreement, or at least lack of objection, of the parties.

Conclusion

The most obvious takeaway from these cases is that trial courts place great weight on what the ESI protocols say. E-discovery attorneys need to pay attention to provisions when negotiating these protocols and make sure they do not agree to provisions that can put their clients in a very expensive bind. Although the courts in these cases seemed to be amenable to potentially modifying these orders with a proper showing of cost and difficulty, it would be far better to avoid a situation where a judge may tell you that “[l]itigants should live up to their agreements,” as in In re Uber Techs, and having to argue that, regardless of your ESI protocol’s terms, you should not be forced to produce hyperlinked documents.

The other main takeaway is a general one. We can ponder whether in In re Acetaminophen - ASD-ADHD Products, a multi-district litigation with a large number of commercial defendants, the defense side really intended to bind all the various defendants to produce hyperlinked documents, given the likelihood that at least some of the defendants may have storage solutions rife with the problems discussed above.  Regardless, an attorney in a position to negotiate ESI protocols needs to be aware of the leading edges of E-discovery trends or employ ESI experts who are. You never know when an issue like this one, or something else relatively new, will pop up in the E-discovery world and perhaps put your clients in an expensive and vexing position.  Attorneys need to be up to date on the cutting edges of discovery and discovery related technology.

With that in mind, happy negotiating! May your modern attachments be few, and your conventional attachments be many.