In the case In re Uber Techs., Inc. Passenger Sexual Assault Litig., No. 23-md-03084-CRB (LJC) (N.D. Cal. April 23, 2024), California Magistrate Judge Lisa J. Cisneros addressed outstanding ESI protocol disputes between the parties related to the handling of hyperlinked documents, including ruling on a broad interpretation of attachments, accepting a modified version of Plaintiffs’ proposal, which included “modern attachments” as part of the definition.

Case Discussion

In this multi-district litigation (MDL) involving allegations that Uber failed to implement appropriate safety precautions to protect passengers which led to alleged incidents of sexual assault or harassment by drivers using the Uber application, the parties were instructed to meet-and-confer regarding the cloud-stored documents issues (particularly as they relate to Google Workspace, which Uber uses), metadata fields, and related provisions of the ESI protocol to be agreed upon. In a previous pre-trial order, the Court had also ordered Uber to thoroughly investigate “the process of collecting the contemporaneous version of the document linked to a Gmail or other communication within Uber’s systems” and invited Plaintiffs to investigate solutions as well. The parties now submitted a Joint Discovery Letter regarding their remaining disagreements, which the Court addressed in this ruling.

Judge’s Ruling

In framing the issues, Judge Cisneros began by stating: “Of principle concern here, a Gmail or Google Chat message that contains a hyperlink to a document is referencing a Google Drive document that may still be evolving. A recipient or others may modify that referenced document, which is centrally located so multiple people can access and edit it. Furthermore, Google Vault does not export, collect, or connect the contemporaneous versions of hyperlinked documents with the corresponding emails or messages in which they are found. Certain technologies have been developed to link email and chat messages to Google Drive documents, but there are limitations”, and Judge Cisneros proceeded to briefly discuss limitations with tools designed to collect from Google Drive and Google Vault, especially regarding contemporaneous documents.”

Judge Cisneros stated the issue, as follows: “In sum, the briefing and evidence, as well as related case law, have made clear that cloud computing and document retention through Google Drive and Google Vault introduce a host of challenges to producing hyperlinked documents from Google Drive and other sources…Yet, contemporaneous versions of hyperlinked documents can support an inference regarding ‘who knew what, when.’ An email message with a hyperlinked document may reflect a logical single communication of information at a specific point in time, even if the hyperlinked document is later edited. Thus, important evidence bearing on claims and defenses may be at stake, but the ESI containing that evidence is not readily available for production in the same manner that traditional email attachments could be produced.”

Judge Cisneros rejected Plaintiffs’ methodology, proposed by Douglas Forrest, their eDiscovery expert, stating: “The Court is not persuaded that Plaintiffs’ Proposed Methodology is a reasonably available option here. Mr. Forrest’s consulting firm created the Proof-of-Concept program based on a post in Stack Overflow, ‘a well-known and widely used forum for developers,’ which contains sample scripts purportedly for retrieving ‘a date-specific revision of a Google Drive Google native document identified by its Document ID.’…However, as Mr. Anderson {Uber’s eDiscovery expert} points out, the anonymous internet user who posted the script on which the Proof-of-Concept program is based on admitted that it did not work…And even ‘a functioning version of the script would not address the issues presented here,’ in part because the ‘script was designed for a single document using the Google Drive API, restoring a non-Vault document, with owner access. This script would not work for Google Vault.’”

However, Judge Cisneros also stated: “The Court has reviewed Uber’s evidence regarding the manual process to query Google Vault for contemporaneous versions of a hyperlinked document…In Shenwick {a 2018 case where the defendants were ordered to produce 200 hyperlinked documents despite the undisputed burdens because they chose their storage method}, the defendants utilized Google Vault for document review and production…Thus, the potential limitations and pitfalls with respect to production of hyperlinked documents from Google Vault have been widely known for many years, yet Uber has elected to transfer and retain its electronic data using this service.”

In ruling on the issue, Judge Cisneros stated:

“Given all the above, the ESI protocol shall state the following with respect to Cloud Stored Documents:

a) Metadata Preserved. Uber shall preserve the metadata relationship between email messages with links to files on Google Drive to the extent feasible with existing technology. Uber shall preserve and produce (including, if necessary, as custom fields) all metadata collected with respect to all cloud-stored documents. That includes, but is not limited to, all metadata output by Google Vault when exporting a matter. Thus, the metadata exported from Google Vault pertaining to each document shall be preserved and produced as metadata for the same document within the load file of any production containing any such document.

b) Hyperlinked/URL-Referenced Documents. Producing party shall make all reasonable efforts to maintain and preserve the relationship between any message or email and any cloud-hosted document hyperlinked or referenced within the message or email. Thus, for instance, where a collected email links to or references by URL a document on Google Drive (or housed within Google vault,) the metadata for that message or email shall include the URLs and Google Document ID of all hyperlinked documents.

c) Contemporaneous Versions of Hyperlinked/URL-Referenced Documents. Uber shall produce, to the extent feasible on an automated, scalable basis with existing technology, the contemporaneous document version, i.e., the document version likely present at the time an email or message was sent, of Google Drive documents referenced by URL or hyperlinks therein. For hyperlinked Google Workspace data archived using Google Vault, Uber is not required to produce the contemporaneous document version at the time the email or message was sent, as this is not possible through an automated process with existing technology. However, Plaintiffs may identify up to 200 hyperlinks for which they seek the contemporaneous referenced document even though the email or message has been archived with Google Vault. Uber shall identify and produce the likely contemporaneous versions that Plaintiffs have requested. The scope of this production does not exempt Uber from any obligation that it preserve historic versions or revision history of any document referenced by URL or hyperlink.

The parties may seek to modify the protocol with respect to the production of contemporaneous versions of hyperlinked documents based on the need for relevant discovery and what is proportional to the needs of the case, or what electronic data is not reasonably accessible because of undue burden or cost. By stipulation of the parties, or through Court order, Plaintiffs may request additional contemporaneous documents, and Uber may seek relief from the production of certain versions or other obligations under the ESI protocol based on undue burden or costs, overbreadth or disproportionality.”

Regarding the dispute over related metadata fields to the issue and plaintiffs’ proposed alternate approach, Judge Cisneros ruled as follows: “Plaintiffs’ new metadata proposals appear helpful to streamline review of Uber’s productions because the metadata will identify which hyperlinked documents are missing from the production and which documents produced are the non-contemporaneous versions. Streamlining review of the production of hyperlinked documents will advance the speedy and less expensive determination of this action…Given the challenges associated with the production of hyperlinked documents from Google Vault, Plaintiffs’ request to add the metadata field ‘Missing Google Drive Attachments,’ and a second metadata field, ‘NonContemporaneous,’ is granted.”

Judge Cisneros also ruled on the dispute over the definition of “attachment”, rejecting Uber’s definition, which stated: “For the avoidance of doubt, a hyperlinked document, such as a cloud-based document in Google Drive, is not an ‘attachment’”. Instead, she opted for a broad interpretation of attachments, accepting a modified version of Plaintiffs’ proposal, as follows:

“’Attachment(s)’ shall be interpreted broadly and includes, e.g., traditional email attachments and documents embedded in other documents (e.g., Excel files embedded in PowerPoint files) as well as modern attachments, pointers, internal or non-public documents linked, hyperlinked, stubbed or otherwise pointed to within or as part of other ESI (including but not limited to email, messages, comments or posts, or other documents). This definition does not obligate Uber to produce the contemporaneous version of Google Drive documents referenced by URL or hyperlinks if no existing technology makes it feasible to do so.”

So, what do you think? Do you agree with the court’s decision to go with a broad interpretation of attachments? Do you think this broad interpretation of attachments will become the standard? Please share any comments you might have or if you’d like to know more about a particular topic.

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