The modern attachments issue is still being debated and there is one primary argument for treating hyperlinked files as modern attachments.

In my last post, I recapped the initial post that started the series (where I shared previous case law about the topic) and that began the debate that so many jumped in on (a whopping 72 comments on my LinkedIn post about it). In my follow up post, 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. In that last post, I covered one more case that I found out about (courtesy of Julie Lewis), which brings us up to date.

Regarding the assumptions and how they impact the debate, assumptions 1 and 2 above narrow the scope for consideration, so any arguments outside of those parameters are moot. Assumption 3 is specific to files that don’t exist at all (which is different from the version not existing, which is still to be discussed). Assumption 4 is usually done in the cases I’ve covered so far (at least it was done in Nichols v. Noom, where the files were produced, just not as modern attachments).

Assumption 5 is where most of the in scope objections fall – parties object to the burden of treating the hyperlinked files as modern attachments as not proportional, and at least one court not influenced by the existence of an ESI protocol agreed with the objecting party. I plan to dive into issues related to the burden next time.

There is really one primary argument for hyperlinked files as modern attachments that can be made by most proponents of it, and it’s a big one.

The information is relevant. {drops mike, walks off stage}

Remember the Watergate scandal? Even if you’re too young to have lived through it, you’ve probably learned about it in school here in the US or you may have heard about it at some point if you didn’t grow up in the US – it’s the reason that the suffix “gate” is attached to just about any scandal these days.

What was the biggest question everybody wanted to know during the scandal?

What did the president know and when did he know it?

Most litigations (at least the ones I’ve worked on over the years) are about timelines. What happened? When did it happen? Who knew about it? That’s often what decides the case.

Part of knowing about what happened when and who knew is knowing what key parties to the case sent and received – and that includes linked files that they sent and received. That information is often relevant, but it may be difficult or impossible to get if there isn’t a connection between the email (or Slack or Teams) message and the linked file.

Some of you are thinking: “Many linked files aren’t relevant.” Of course not. How can you tell which files are relevant? It’s often not that easy.

I have seen (and sent) many emails with files attached after a discussion and the only words on the body of the email are “As discussed…”. The title of the email may not be any more specific. If that’s the case, the relevance of the communication may be almost completely contained within the linked file (and that relevance may be huge). Yet, the receiving party will fail to realize that the email is significant because they don’t have the bulk of the communication to go with it. That file may still be produced (assumption 4 above), but the receiving party may have no idea who saw it and when.

Some of you may be thinking: “If the file is still produced, the receiving party can match it up.” That may not be easy either.

Many files produced could have the same name. Or the file could have changed names since it was sent. It’s not always easy for a receiving party to put the puzzle pieces back together – anymore than it is for the producing party (if it were easy, we wouldn’t have a debate). Who should have to do it?

My biggest issue with the ruling in the In re Meta Pixel Healthcare Litig. case is that the statement from the Court that “the parties should consider reasonable requests for production of hyperlinked documents on a case-by-case basis” doesn’t take into account that it’s difficult to impossible for the receiving party to know what those cases are. It’s not easy to review messages and always know the ones for which you need to request the hyperlinked document. Often, there’s simply not enough information in the message to make that determination. What’s a receiving party supposed to do? Guess?

The primary argument for hyperlinked files as modern attachments is that it’s relevant. Simple as that. What happened? When did it happen? Who knew about it?

That’s what discovery is all about, finding the evidence that supports or refutes the case, and hyperlinked files are a part of that equation. Anything that gets in the way of that should be addressed so that it’s not a roadblock.

Hey, I didn’t say it was easy. Proportionality matters, and relevance isn’t always enough if the burden is great. But that’s a topic for the next post. 🙂

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 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? What do you think about the primary argument for treating hyperlinked files 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”.

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.