Should we treat hyperlinked files as modern attachments? That’s the question in a new blog series where I’m starting with case law.

Over the past couple of years, I’ve discussed the idea of hyperlinked files as modern attachments with several knowledgeable eDiscovery professionals and the issue has become magnified over that time with at least three rulings that address them specifically. Here are the three rulings and my comments about each of them:

Nichols, et al. v. Noom Inc., et al. (March 2021): Here, the plaintiffs learned in early production that defendant employees frequently link to internal documents in lieu of attachments to emails or other documents and they urged the Court to require defendants to recollect Google Drive and Gmail documents so that any hyperlinked documents are also pulled as part of the document “family”. But New York Magistrate Judge Katherine H. Parker denied the plaintiffs’ motion, stating: “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.’”

Objections to the order were filed to the District Court and two Amicus Letters were filed to support the position of hyperlinked files being treated as modern attachments. Not surprisingly, because the order was not found to be clearly erroneous, the ruling was upheld. The call for requesting parties to update their ESI protocols to add language to treat hyperlinked files as modern attachments began.

In re StubHub Refund Litig. (April 2023): At least one of those requesting parties did just that. Here, California Magistrate Judge Thomas S. Hixson granted the plaintiffs’ motion to compel and ordered the defendant to produce the linked documents as agreed to in the ESI protocol or “produce for deposition within 14 days after the deadline to complete document production a Rule 30(b)(6) witness with full knowledge of everything StubHub and its vendors did in attempting to produce linked documents as attachments as required by the ESI Protocol”.

Again, the ESI protocol factored into the decision – this time, in favor of the requesting party because they made sure language addressed it in the protocol. About that same time, however, I’ve heard some pushing back on the idea of treating hyperlinked files as modern attachments, citing several technical and evidentiary challenges. We need a ruling that isn’t based on what was decided in the ESI protocol.

In re Meta Pixel Healthcare Litig. (June 2023): Less than two months later, we got that ruling in an order about what the ESI protocol should say. Here, California Magistrate Judge Virginia K. DeMarchi stated: “The Court is persuaded that the commercially available tools plaintiffs suggest may be used for automatically collecting links to non-public documents have no or very limited utility in Meta’s data environments or systems, and even that limited utility…would disrupt Meta’s standardized workflow for ESI-related discovery processing across all of its platforms and systems. Accordingly, the ESI protocol should make clear that hyperlinked documents are not treated as conventional attachments for purposes of preserving a ‘family’ relationship in production.” She also did state that “the parties should consider reasonable requests for production of hyperlinked documents on a case-by-case basis”, but not “as a matter of routine.”

To my surprise, I’ve heard from more people who support that ruling than those who advocate treating hyperlinked files as modern attachments as a general rule. We’ll be discussing that case in Wednesday’s EDRM case law webinar.

Before I wrote this post, I decided to see if there were any other cases out there that referenced the issue by searching eDiscovery Assistant. There were no hits for the term “hyperlinked attachments”, 1 hit for the term “hyperlinked files” (the StubHub case referenced above) and 1 hit for the term “modern attachments”. That was the case In re Acetaminophen – ASD-ADHD Prods. Liab. Litig, where an order was entered in January 2023 establishing the ESI Protocol, which said (emphasis added):

19. Parent-Child Relationships. Parent-child relationships (association between an attachment and its parent document) shall be preserved. The attachment(s) shall be produced adjacent to the parent document, in terms of Bates numbers, with the first attachment being named with the next sequential number after the parent, and any additional attachment(s) sequentially numbered after that first attachment. Email attachments and embedded files or “modern attachments” (i.e., hyperlinks pointing to files stored in the cloud or a shared repository such as SharePoint and other types of collaborative data sources, instead of being directly attached to a message as has been historically common with email communications) shall be collected and produced with the parent message. “PRODBEGATT” and “PRODENDATT” fields listing the unique beginning Bates number of the parent documents and ending number of the last attachment must be populated for each child and parent document.

So, the producing party agreed to the potential headaches of treating hyperlinked files as modern attachments! Good thing they have plenty of Acetaminophen! 😀

Now what? Here’s where I want you to get involved. Over the next several weeks, I plan to write a series of posts that discuss the pros and cons associated with hyperlinked files and treating them as modern attachments, as well as current technological approaches for doing so (and any inherent limitations with those technologies) and, frankly, I could use all the help I can get. If you have any thoughts about the pros and cons of the modern attachments issue, or any knowledge of current technological approaches to do so, feel free to send me an email at daustin@ediscoverytoday.com. Any information that I use will be credited to the source (unless you ask me not to do so).

More to come in the next installment – stay tuned!

So, what do you think? Should hyperlinked files be treated as modern attachments? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using Microsoft Bing’s Image Creator Powered by DALL-E, using the term “email AND hyperlinks”.

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