Weeks ago, I started a series about the hyperlinked files as modern attachments issue with case law, but there’s at least one more case tied to the issue.
Because I was slammed the past few weeks, I didn’t get a chance to get back to this topic. I started this series in late August by asking the question: “Should we treat hyperlinked files as modern attachments?” I also shared three case law rulings and an ESI Protocol order in the fourth case where it was agreed that they would be treated as such (the order actually used the phrase “modern attachments” in it).
I received tons of feedback on the topic, with a whopping 72 comments on my LinkedIn post about it (some of which were mine, of course) and received several emails as well with thoughts and opinions. Not surprisingly, there are proponents on both sides of the issue.
Because some of the arguments were a bit off-point, I decided to take a step back a week later and state five assumptions about the issue that we could hopefully all agree on (or at least most of us), regardless of what side of the debate we’re on. I didn’t get any notable pushback on the proposed assumptions, so I’m going to roll forward with them.
Then, I got super busy with several weeks of conferences, plus a ton of client work, and – yadda, yadda, yadda – I haven’t gotten back to this topic in a while. 😉 I’m ready to get back to it and start discussing pros and cons of treating hyperlinked files as modern attachments! Almost.
One of the great things about being at the conferences is that this topic came up a lot with people I spoke with, and there were (naturally) lots of opinions about it. But I also learned there is at least one more case tied to the issue. Julie Lewis, President & CEO of Digital Mountain, made me aware of a case back in 2019!
The case is IQVIA, Inc. v. Veeva Sys., Inc., No. 2:17-CV-00177-CCC-MF (D.N.J. July 11, 2019), and the ruling came from the Special Master on the case, Dennis M. Cavanaugh. In the case, IQVIA filed a motion to compel Veeva Systems to produce 2,200 linked Google Drive documents referenced in emails.
You can read the entire case via the link above. I’ll skip to the ruling from Special Master Cavanaugh, who said:
“The relevancy of the Google Drive documents is not in dispute. IQVIA has requested and Veeva has agreed to produce all Google Drive documents that any custodian authored, edited, reviewed, accessed, or otherwise had access to. The Special Master will instruct Veeva to produce this information within thirty days of the date of this Order… there is no dispute that the linked documents are relevant to the claims and or defenses of this action. While, as Veeva argues, the linked documents are not stored with emails in the ordinary course of business, IQVIA has no way to link the documents, only Veeva is capable of linking the emails to the Google Drive documents. The Special Master is not convinced that relinking these 2,200 documents is unduly burdensome in light of the issues at stake in this matter, the resources of the parties, and the amount in controversy.”
Special Master Cavanaugh also said: “With respect to documents that were deleted or are otherwise no longer available on the Google Drive, the Special Master is persuaded that if Veeva intends to assert that these documents were deleted in the ordinary course of business, that, to the extent possible, it must provide information with respect to when the documents were deleted and the steps it took to determine this information. Accordingly, Veeva shall undertake a reasonable investigation to the best of its ability to determine when those specific documents identified by IQVIA were deleted or otherwise became unavailable. Veeva shall provide IQVIA with this information, as well as the steps it took to obtain this information, within thirty days of the date of this Order.”
So, there you go – one more case tied to the hyperlinked files as modern attachments issue! Thanks, Julie!
Now what? Here’s where I want you to get involved. Over the next several weeks, I plan to get back to writing a series of posts (honest, I do!) 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!
Related Posts
Hyperlinked Files as Modern Attachments – The Case Law: eDiscovery Issues
Hyperlinked Documents and Email Threading Disputes Addressed by Court: eDiscovery Case Law
Produce Linked Documents as Agreed to in the ESI Protocol, Court Orders: eDiscovery Case Law
Ten BRUTAL Sanctions Case Law Rulings: eDiscovery Best Practices
Tomorrow’s E-Discovery Day Case Law Webinar Will Be Magnificent!: eDiscovery Webinars
So, what do you think? That’s one more case – are there any other cases I should know about? 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”.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
I wait with bated breath to see how many commentators choose to ignore assumptions four and five of your five assumptions, especially the final assumption (a threshold one): Discovery of hyperlinked files must be both relevant and proportional.”
The failure to link a relevant and responsive target file with it’s relevant and responsive transmittal is a serious deficiency; but we must also address the structural problem attendant to identifying relevant and responsive items when they shift from being embedded base64 attachments (the customary form/encoding of conventional/MIME email attachments) and become mere hyperlinks to a private Cloud repository (“private” in the sense that not all with the link have the privileges required to access the linked attachment). This is a far larger and different concern than the simple failure to search backend Cloud repositories at all (the focus of your fourth assumption).
Historically, relevant and potentially-responsive custodial email has been identified and segregated for review by four primary characteristics. The first three are filtering by dates, recipients and folder locations. The last is lexical filtering by keywords and queries (or by alternate techniques based on lexical content like predictive coding–same difference here). I think it’s fair to say that the lexical search mechanism has been the backbone of the process for decades and remains the cornerstone of most e-discovery “rough cut” techniques. Neither predictive coding nor AI represent any meaningful difference here.
When items previously transmitted as embedded content are now linked items, the text of the linked item is no longer encompassed by a search using lexical filtering of the transmittals. Accordingly, transmittals that would once have been deemed irrefutably relevant fail to be identified as such if the basis for their relevance is the content of the linked attachments they transmit.
The flipside of the coin is that a lexical search for relevant and responsive items made against a Cloud repository housing linked and other items cannot be filtered by recipients, mail folder locations and mail transmittal dates, and, as discussed above, it is these characteristics that play key roles in segregating relevant and responsive from all else.
This is a big deal, and we need to appreciate why that’s so in order to debate it (assuming we seek to debate more than just the naked self interest of requesting and producing parties).
My hope is that we don’t divide into two camps: one that says, “What we’ve always done doesn’t work anymore, so relevant and responsive items won’t be found as they once were; get over it!” The other camp says, “Moving to modern attachments doesn’t excuse the obligation to locate relevant and responsive messaging when that relevance and responsiveness is a function of the jointly-considered characteristics of both transmittals and targets.”
This is a challenge to be met, not cheered as yet another means to confound discovery of relevant and responsive information. Sooner-or-later, clients show up on both sides of the “V,” and need effective ways to find relevant evidence, not just argue against its disclosure.
Agreed, Craig. The fourth assumption was designed to start with an idea I felt we could all agree to – that cloud repositories must still be searched and responsive files from the cloud repositories must still be produced. That should be a given, and I can’t imagine anyone disagreeing with that.
When you get into linking those files to emails and producing the relationship, that’s where the “not proportional” arguments arise, which is why I included assumption 5. There may be times where the burden outweighs the benefit, just like with any discovery (especially given current technological challenges). But you must object with specificity if that’s the case. I suspect the burden will change over time as technology advances catch up with the way companies work today (just as it did with embedded attachments back in the day).
There’s also the case where the email may be identified to contain responsive information, but the linked file(s) doesn’t explicitly contain responsive information (e.g., not responsive to search terms). Just because it doesn’t contain responsive terms doesn’t mean it’s not important to provide context to the discussion, however. In a perfect world, the ENTIRE responsive communication should be produced. Now, we just need that “perfect world”! 😉