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 firstname.lastname@example.org. 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? 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”.
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