Beware of geeks bearing “gifts”, even in the holiday season! Here is my attempt at proposed language for hyperlinked files in ESI protocols!
Over the past few months, I’ve written several posts regarding the issue of hyperlinked files as “modern attachments”, including previous case law (here and here), five proposed assumptions to simplify the debate, the primary argument for treating hyperlinked files as modern attachments, and a new Google feature that supports exporting of hyperlinked files from Vault linked via Gmail.
With all that in mind, it’s time to take a leap of faith! So, I have proposed language for hyperlinked files that could be added into an ESI protocol.
My goal was to propose language that addresses the need to produce the relevant information, but in a way that attempts to appropriately limit the scope of hyperlinked files being produced. I would envision this language appearing after language in an ESI protocol that addresses parent-child relationships to set the parameters, but I have not proposed that the hyperlinked files must be treated as “children” to parent emails or other communications and have not used the phrase “modern attachments”. The goal is to simply provide the ability for the requesting party to reasonably get to files that are hyperlinked within those communications and understand the relationship between the communications and the hyperlinked files.
Here’s the proposed language for hyperlinked files (embedded numbers are to illustrate points below and wouldn’t be included in the actual text):
Hyperlinked Files. Hyperlinked files (1) within any responsive email or other collaborative communication within the possession, custody and control (2) of the producing party will be produced and cross-referenced to the communications from which they are linked, either by treating them as a parent-child relationship or via metadata that identifies the link between the communication and the hyperlinked file. For any hyperlinked files that are no longer available, the producing party will provide an exception report to identify those files (3). If the exact version of any hyperlinked file is no longer available, the producing party will produce the closest available version of that file after the date/time of the exact version. If the producing party is unable to meet any of these requirements due to technical challenges, it will request to meet and confer with the requesting party to discuss alternatives that will be proportional to the needs of the case. (5)
What do the numbers represent? They represent the assumptions that I proposed back in this post. As a reminder, they are:
- The issue relates only to hyperlinked files, not all hyperlinks.
- Those hyperlinked files must be in the “possession, custody or control” of the responding party.
- A file that no longer exists can’t be produced.
- Hyperlinked files should still be produced if they are deemed to be responsive.
- Discovery of hyperlinked files must be both relevant and proportional.
As you can see, production is limited to hyperlinked files (1) in the “possession, custody or control” (2) of the responding party, there’s an out (with accountability) for files that no longer exist (3), and an option to meet and confer to discuss barriers that may keep production from being proportional (5). The versioning issue is addressed in the only reasonable way I can think of – produce the closest version to the one sent if the exact version isn’t available.
What about #4? These files should still be produced stand-alone if they’re responsive, but if they’re not linked to a responsive message, there is no need to identify that relationship, so it doesn’t figure into the language above, which focuses on hyperlinked files to responsive messages only.
Hopefully, this language represents a reasonable approach that balances the need for producing relevant information while also providing allowances for some of the difficulties in doing so when it comes to hyperlinked files. For it to work, parties need to be reasonable and cooperate – just like with any other discovery issue.
Having said that, I encourage feedback on this proposed language for hyperlinked files. Am I missing any scenarios? Is it unreasonable to one side or the other (or even both, if that’s possible)? I’m prepared for feedback, even if it’s brutally honest (or just plain brutal).
Related Posts
The Primary Argument for Hyperlinked Files as Modern Attachments: eDiscovery Issues
One More Case About Hyperlinked Files as Modern Attachments: eDiscovery Issues
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
So, what do you think? Would you consider using this proposed language in an actual ESI protocol? 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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Hi Doug,
Big fan of the blog and your attempt to tackle a contentious issue, but I disagree with this proposed language because, in effect, it expects documents to be produced regardless of relevance or responsiveness merely because they happen to be referenced in another document that is responsive. Nothing in the Rules of Civil Procedure requires or contemplates this, even in the context of traditional email attachments. Instead, the reason it is generally recommended to produce non-responsive email attachments with their responsive email parents is because an email attachment, by its very nature, is embedded within and part of the sent email; thus, the Rule of Completeness codified in Fed. R. Evid. 106 is implicated. It is the Rule of Completeness – not the Civil Rules – that allows a requesting party to demand production of attachments as part of an email regardless of the inherent relevance or responsiveness of those attachments. Hyperlinked documents, in contrast, are not embedded within or part of an email or other collaborative communication but are generally stored elsewhere. Thus, the Rule of Completeness does not apply to hyperlinked documents and, unless the hyperlinked documents happen to be relevant and responsive by themselves, nothing in the Civil Rules compels their production either.
By extension, this proposed language places new and unnecessary burdens on responding parties to explain (through an exception report) why they cannot or will not be producing non-responsive hyperlinked documents, to produce (or explain why it cannot produce) cross-reference metadata that does not always exist might need to be generated, and to produce additional “close but not quite” documents that otherwise would not be subject to production. All of this flips the Rules on their head – unless an applicable rule or court order affirmatively requires a responding party to perform some action, the responding party should have no obligation to act, object, or explain its inaction.
That said, given the challenges with and debate surrounding hyperlinked files, I absolutely agree with you that a practical (and generally palatable) solution is needed. Here’s what I would propose instead:
“Unless otherwise agreed to in advance by the parties or ordered by the court, responding parties need not produce documents hyperlinked to any email or collaborative communication unless: (1) the hyperlinked files are responsive to a discovery request or subject to mandatory disclosure under applicable rules or orders; (2) the hyperlinked files are within the possession, custody, and control of the responding party; and (3) the hyperlinked files are reasonably accessible without undue burden or cost. If any these conditions are not met but a party nonetheless seeks production of the hyperlinked files, the requesting party shall identify with reasonable specificity the hyperlinked files it seeks and then meet and confer with the responding party about their production before involving the court.”
Hi Matthew L,
Thanks for your detailed comment and your proposed alternative language! I really appreciate the time it took to provide, and love that the post is generating some spirited dialogue.
I do have thoughts about one of your discussion points and two of the points within your proposed language. They are:
1. Rule of Completeness: This reference puzzled me as I’ve worked on eDiscovery cases for many years and I’ve never heard FRE Rule 106 referenced in a discovery context. To make sure I wasn’t missing anything, I asked a couple of other people with considerable experience and they hadn’t heard it used in this context either. One of those was Craig Ball (who provided the other comment – thanks, Craig!), who said: “The Rule of Completeness is a doctrine of evidence, not procedure or a rule of discovery. Admissibility is not a test for discovery and never has been. The Rule of Completeness addresses what additional information may be required to be presented to the trier of fact to ensure the trier of fact is not misled.”
The rule reads: “If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part — or any other statement — that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.” There is no mention of the words “email”, “attach”, “embed” or “discovery” in either the rule or the Notes for the rule.
Absent clarification, I’m not buying this as a reason why it’s OK to require embedded attachments to be produced with emails, but not files hyperlinked within those same emails.
2. “responding parties need not produce documents hyperlinked to any email or collaborative communication unless: (1) the hyperlinked files are responsive to a discovery request or subject to mandatory disclosure under applicable rules or orders”: In addition to my discounting of the Rule of Completeness as a reason to only require hyperlinked files that are responsive to be produced, I have another concern about this clause – it doesn’t take into account files that may be responsive simply because they are part of a communication.
For example, it may be important to see what reports a particular custodian was sent. If those reports are embedded attachments, that’s easy and we’re doing it today. If those reports are hyperlinked files and they are deemed non-responsive simply because they don’t contain search terms the parties agreed to, then producing the email without producing the hyperlinked report is incomplete information. You have a responsive communication without the entire communication being produced. I would never agree to that as a requesting party.
3. “the hyperlinked files are reasonably accessible without undue burden or cost”: Who decides what is considered to be “undue burden or cost”? The producing party? The requesting party? And how is the requesting party supposed to “identify with reasonable specificity the hyperlinked files it seeks” when that party doesn’t know what those files contain? Seems to me that this language would force the requesting party to operate with blinders on, hoping to guess which hyperlinked files they should request. It also extends discovery, because it virtually guarantees a back and forth of requesting hyperlinked files that weren’t produced and arguing over whether they should be.
I’m sorry, Matthew L, but I don’t see your proposal as “practical (and generally palatable)” at all. It seems one-sided to me. But, hey, this is how negotiations begin! 🙂
Nice work! I’ve lately your “hyperlinked files” called “Cloud (or even “Cloudy”) Attachments, but I know how certain interests won’t rest until that word “attachments” is banished. ;-))
A few quick observations on your formulation:
1. Overall, quite well conceived. Thank you!
2. “Hyperlinked files within” may prompt obtuseness in that it’s not clear if you mean the link is within the message (yup) or the file is within the message (nope).
3. Limiting it to”any responsive email or other collaborative communication” begs the question of whether the email or communication standing alone must be deemed responsive or if its responsiveness may be established by virtue of the content of the hyperlinked file.
I see you address this in your post, but I’m troubled by the proposed treatment since it assumes that ALL “backend” documents that might have been linked documents will be searched in the ordinary course. That’s not likely, and certainly not the norm. A superior approach to collecting and processing ALL backend documents for search might be to collect all linked documents and search them along with the transmittals–yes, even linked documents whose relevance can’t be determined from the four corners of the transmittal. If that sounds disproportionate, consider that your alternative (backend search of all Cloud-stored documents) implicates a considerably larger burden considering that linked documents are a subset of all Cloud-stored documents. More often than not, it’s the content of the attachments that makes the transmittal responsive, but it is often only the transmittal that supplies crucial data respecting circulation and context.
4. Is “collaborative communication” intended to modify/encompass “email?” You later reference “the communications,” prompting some uncertainty.
5. “For any hyperlinked files that are no longer available, the producing party will provide an exception report to identify those files.” That’s a great idea, but exactly HOW do you envision it be realized beyond supplying the broken link address in the email or other collaborative communication and indicating “no linked item could be retrieved” (or the like) in a load file?
6. “If the exact version of any hyperlinked file is no longer available, the producing party will produce the closest available version of that file after the date/time of the exact version.” Another great notion, but the “exact version” langauge seems… muddy. I assume you are saying that, if the hyperlinked file may have been modified after transmittal, the modified file closest in time following transmittal shall instead be produced?
Thanks, Craig, for the kind words and the detailed comments! Exactly the kind of feedback I was hoping to get in terms of clarifications and suggestions for improvement. Responses to your numbered comments as follows:
1. Thanks! Coming from you, that means a lot! 😀
2. Good point. My first inclination would be to define hyperlinked files in the Definitions section of the ESI Protocol. Perhaps a definition like: “Hyperlinked files are links to files within messages, such as emails or collaboration app messages (like Slack or MS Teams).” You could define it there or as the first sentence of this paragraph. I propose to use the term “hyperlinked files” because it’s consistent with “embedded files” in style and easier to say and write than “links to files within messages” everywhere.
3. I see your point here. What I don’t know is the respective burdens for searching the entire cloud repository vs. collecting every file which is linked (which could be a healthy percentage of the repository). We’re continuing to see technological advancements that are indexing files in-place to push discovery toward more targeted collections. If you collect every file which is linked, it seems to me you’re adding collection burden, hosting costs burden and more.
If you search the entire cloud repository to find relevant files, you have to figure out which ones point back to emails and other communications. The determination of which approach is more burdensome may come down to the technology solutions that the producing party has.
Of course, we don’t have to make that determination for the producing party – we just have to push for the solution in the language here, right? So, I would propose adding two sentences before the last sentence in the paragraph which would state this:
“A communication is considered responsive if either the communication itself or any of the files to which it links is considered responsive. Responsive files within the possession, custody and control of the producing party will be produced and cross-referenced to communications from which they are linked.”
4. I’m trying to cover the bases here of email and collaborative solutions like Slack and Teams. As is the case with emails, those communications have hyperlinks to files and those files help determine the responsiveness of the communications. Open to a better way to state this so that both types of communications are included.
5. Not sure, and I’m not even sure that an exception report is necessary. There just needs to be information provided to notify the requesting party that the file is no longer available – we don’t have to dictate how they do it. A collection tool could provide some indication of that with the communication itself. Perhaps a better way to say this sentence would be:
“As part of the production, producing parties will identify any hyperlinked files that are no longer available.”
6. Yes, I see your point. I like your language better! Tweaked slightly, how about:
“If the hyperlinked file has been modified after transmittal, the modified file closest in time following transmittal shall instead be produced.”
Let me know your thoughts!