Here’s a case we’ll be covering in our EDRM April case law webinar.  Craig Ball also wrote about the issue of production of hyperlinked documents on his blog here last week and on this blog back in November.  It’s a thorny one!

In Nichols, et al. v. Noom Inc., et al. No. 20-CV-3677 (LGS) (KHP) (S.D.N.Y. Mar. 11, 2021), New York Magistrate Judge Katherine H. Parker denied the plaintiffs’ motion for reconsideration regarding production of hyperlinked documents which sought to “clarify the Court’s previous orders and rulings regarding Defendants’ production of documents linked to Google Drive documents and Gmail communications via hyperlink”.  Judge Parker also denied the defendant’s request for attorneys’ fees in connection with opposing plaintiffs’ motion, stating “[t]he issue Plaintiffs raise is an important one and one on which the Court did not issue a fulsome written decision”.

Case Background

In this case, the plaintiffs, in the alternative to seeking clarification, sought reconsideration of this Court’s prior rulings that (1) Noom would be permitted to utilize Google Vault to collect its Google Drive and Gmail documents and (2) to the extent Plaintiffs identified certain internal documents containing hyperlinks to internal Noom documents that appeared to be material to the claims or defenses in this action and could not locate the corresponding hyperlinked document in the production, they should raise the issue with Noom and Noom would be required to provide the document or its Bates number (unless withheld on privilege or work product grounds and logged). 

In early production, the plaintiffs learned defendant employees frequently link to internal documents in lieu of attachments to emails or other documents. They argued that 1) hyperlinks are akin to attachments and should be produced as part of a document “family” and 2) without metadata linking the underlying hyperlinked defendant document to the document containing the hyperlink, they would not be able to determine families of documents. They also expressed concern that some of the hyperlinked documents may not be produced at all and urged this Court to require defendants to use MetaSpike’s Forensic Evidence Collector (“FEC”) to recollect Google Drive and Gmail documents so that any hyperlinked documents are also pulled as part of the document “family” or to create a program using Google’s application programming interface to extract links from responsive Google Drive documents, retrieve those linked documents, and produce them as attachments (estimating it would take only one to two weeks to write a program to extract the links).

Defendants opposed the plaintiffs’ motion, arguing that the hyperlinks are not attachments, noting they were separately collecting and producing relevant internal documents on Google. They also agreed to produce a reasonable number of linked documents at plaintiffs’ request and had been ordered by the Court at a discovery conference to provide such linked documents to the extent plaintiffs cannot locate them in the production. The defendant’s discovery expert also submitted a declaration stating that the FEC tool was unworkable and that Noom would incur roughly $180,000 in costs to collect the hyperlinked documents and produce them, resulting in further delays, arguing that the plaintiffs’ request was not proportional to the needs of the case.

Judge’s Ruling

Judge Parker observed: “Notably, the ESI protocol negotiated by the parties and later entered by the Court does not state that hyperlinked documents are part of ‘family groups.’ But the protocol does not define ‘attachments’ either… 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. While the protocol does reference “files with extracted embedded OLE documents,” the Court understands this to refer to embedded, displayed documents such as a graph or a chart within a Word document or email—not hyperlinked documents. The ESI also refers to “document stubs,” which the Court understands to refer to the company’s archive location of attachments to emails…In sum, the ESI order does not treat hyperlinked documents as attachments. As noted above, Noom is producing all attachments to emails with the parent email as part of the email “family.” Relevant hyperlinked documents are being produced separately.”

In denying the plaintiffs’ motion for reconsideration over production of hyperlinked documents, Judge Parker stated, also citing proportionality and Rule 1 concerns: “To start, the Court does not agree that a hyperlinked document is an attachment. While the Court appreciates that hyperlinked internal documents could be akin to attachments, this is not necessarily so. 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 facebook 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.”

So, what do you think?  Do you think that hyperlinks within emails to internal documents should be treated as attachments for discovery purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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