Hyperlinks Are Not the Same as Traditional Attachments, Court Rules: eDiscovery Case Law

In the case In re Insulin Pricing Litig., No. 3:17-cv-0699 (BRM) (RLS), MDL No. 2080 (D.N.J. May 28, 2024), New Jersey Magistrate Judge Rukhsanah L. Singh ruled on several contested ESI issues in connection with the parties’ respective proposed ESI Protocols including hyperlinks, where she agreed with Defendants that “hyperlinks are not the same as traditional attachments”.

Case Discussion and Judge’s Ruling

Following meet and confers, the parties submitted to the Court their respective competing ESI Protocols for the Court’s consideration, with briefing as to their positions. Plaintiffs also offered the two expert declarations in support of their positions, and after a case management conference, the Court granted Defendants leave to supplement with declarations their position on the dispute over hyperlinks, to which Plaintiffs could reply. On May 1, 2024, Defendants submitted eight declarations to support the proposition that “[n]o Defendant has tools to automatically or comprehensively collect hyperlinked documents like traditional attachments, nor is there a way to automatically or accurately create family connections during the collection or review process.” On May 8, 2024, Plaintiffs replied to Defendants’ declarations, seeking to further meet and confer on the issue.

The handling of hyperlinked documents was not the only contested issue. The parties presented several contested ESI issues in connection with their respective proposed ESI Protocols, including: (1) the scope of the ESI Protocol; (2) prior productions; (3) pre-production information exchanges; (4) search methodologies; (5) email threading; (6) hyperlinks; (7) redactions; and (8) production format.

Regarding the hyperlink issue, Plaintiffs argued that a producing party should produce linked documents with any affiliated family group. Defendants, in contrast, contended that Plaintiffs’ proposal is technologically infeasible, conflicts with ESI protocols entered into in the prior insulin pricing cases, and would create undue burdens disproportionate to the needs of this matter. As Judge Singh stated: “In sum, each defendant proffers that it is not feasible, practicable, or unduly burdensome to produce hyperlinked documents in family groups, particularly when attempting to produce, in a family group, the ‘as-sent’ version(s) of any linked document.”¹

Plaintiffs responded to Defendants’ declarations on the issue and argued the parties should meet and confer further as to the feasibility of producing hyperlinked documents in family groups. Defendants opposed what they termed to be further “discovery on discovery” and maintained their objections to the production of hyperlinks that maintain any family relationship.

On May 24, 2024, Defendants submitted a letter regarding supplemental authority as to the hyperlink issue, pointing out that the Northern District of California modified the ESI Protocol Order entered in the In Re StubHub Refund Litigation to remove the requirement that hyperlinked documents be produced in document family groups, based upon declarations submitted by StubHub reflecting the inability to produce links in that fashion.

Ruling on the issue, Judge Singh stated: “The Court agrees with Defendants: hyperlinks are not the same as traditional attachments. The Court ultimately must determine whether commercially available tools that may be used to maintain family relationships in the context of hyperlinks are feasible in the data environments or systems used by each producing party subject to the ESI Protocol and, if feasible, if the use of such tools are proportional to the needs of the case and not unduly burdensome.”

As a result, Judge Singh stated: “Here, having fully considered the parties’ respective declarations on this issue, Defendants have sufficiently proffered that such tools are either not feasible whatsoever or unduly burdensome to apply to their respective data environments…Additional meet and confers between the parties on this issue, as proposed by Plaintiffs, would only delay discovery. Accordingly, considering the need for efficient and effective discovery, within the Court’s discretion, the Court adopts Defendants’ proposed language as to family relationships and hyperlinks in the ESI Protocol.”

So, what do you think? Do you agree with the Court that hyperlinks are not the same as traditional attachments? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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1. This is a quote directly from the ruling, but it’s unlikely the defendants were proffering that it is not unduly burdensome, so it appears to be a misstatement by Judge Singh. Good catch by Craig Ball! ↩︎