The hyperlinked documents debate is heating up! With that in mind, here are six myths about hyperlinked documents – in my opinion at least.

We’ve had at least three cases related to the hyperlinked documents as “modern attachments” debate in the last six weeks! So, this is clearly a hot topic in the courts! After covering each of them, I reached out to several people on LinkedIn to get their reactions and there were a lot of them! Here’s an indication of the traction that discussion of each of the cases has received, just within my personal LinkedIn account (so far):

• In re Uber Techs., Inc. Passenger Sexual Assault Litig. (covered on 4/29): 4,147 impressions, 50 reactions and 64 comments here.
• In re StubHub Refund Litig. (covered on 5/24): 7,499 impressions, 68 reactions and 77 comments here.
• In re Insulin Pricing Litig. (covered on 5/31): 4,415 impressions, 54 reactions and 74 comments here.

Feel free to add your comments to any of the discussions above!

When I started thinking about some of the comments, it occurred to me that there seems to be a few myths regarding the hyperlinked documents debate. So, I’ve identified six myths about hyperlinked documents. Here they are, let me know what you think:

1. The linked files won’t be retrieved in discovery.

The first of six myths about hyperlinked documents is the concern that the hyperlinked documents aren’t physically part of the email, so they won’t be indexed and, therefore, not retrieved in discovery at all. Assuming these files are within the possession, custody and control of the producing party and the requesting party is thorough in their document requests, the files should still be retrieved if they are responsive to the request, as I mentioned in assumption #4 here.

Document requests should include cloud-based document archives like Google Vault, OneDrive and SharePoint, and responsive documents within those archives should still be retrieved. Tying them to any emails that linked them may be another matter, but the files should still be produced in a standalone form at least – to the extent they still exist.

2. You can always tell whether a linked file may be responsive based on the email.

Uh no, you can’t. Emails that link to files can contain almost no useful information to determine responsiveness. Many times, after a meeting or phone call, I’ve sent an email to the participants in that meeting or call with a link to a file which simply says: “As discussed” in the body of the email. Everybody does that at some point. Good luck figuring out whether those communications are responsive just based on the email!

One big concern with rulings that specify that the requesting party may request the linked file for selected emails is that they need enough information to know whether each email may be responsive. Often, the important information that determines responsiveness is all in the linked file. Given that some emails may provide minimal information to determine responsiveness without the linked files, requesting parties may have to get creative and guess about responsiveness of emails based on parties and timing of the communication. Not ideal.

3. The tools exist today to fully support treating hyperlinked files as modern attachments.

Uh no, they don’t. There have been plenty of limitations that have been identified with existing platforms, especially when it comes to contemporaneous versions of linked files. Google Vault apparently doesn’t track them, and, while Microsoft Purview supposedly now does, that capability is apparently not retroactive to pre-existing ESI. And you must have the Purview eDiscovery (Premium) license to use the capability, which is expensive.

While I do think that there may be solutions to help address part of the challenge (especially if the file hasn’t been changed since the link was sent in an email or other communication), we can’t fully support the need with any tool (or combination of tools) today. We’ve just had two cases where courts have agreed the tools don’t exist today that can support the need, and plenty of eDiscovery professionals that say the tools just aren’t fully there. I believe them.

4. Case law ruling decisions based on burden of discovery will have long-term precedent.

We just saw two cases in back-to-back weeks, with the defendants in the second case using the first case as supplemental authority regarding the hyperlink issue. Does this set a precedent? No. Why not? Because the decision in both cases was based on the ability to treat the hyperlinked documents as attachments and the burden of doing so.

Guess what? The capabilities of the tools and the associated burden will evolve over time, and I expect they will be able to much more fully support the need to retrieve hyperlinked files than they do now. Unless a specific court is short-sighted and fails to take into account the evolution of technology, each court ruling will be based on the technology capabilities available at the time the issue is before the court. Just because the handling of hyperlinked documents isn’t proportional today doesn’t mean it won’t be down the road. Whether it’s a short road or a long road – or a dead end (see what I did there? 😉) – remains to be seen.

5. An eDiscovery solution will solve the entire modern attachments issue.

No matter how good an eDiscovery solution gets at collecting ESI from source solutions, it will never solve the entire modern attachments solution alone. Why? Because you can’t collect what isn’t there. An eDiscovery solution can’t collect contemporaneous files if the source application isn’t preserving them and making them available to be collected.

One of the most popular eDiscovery solutions out there for collection of cloud email is Forensic Email Collector from Metaspike. I’ve heard it’s a great tool and can do a lot in terms of automating the collection of linked files within emails (with proper credentials). But it can’t collect the contemporaneous files if they don’t exist. No matter how good the eDiscovery solution is, it will need help from the source ESI application to make available what needs to be collected – it can’t solve the entire issue alone.

6. The Source ESI apps won’t implement enhancements to help address the problem.

Will the source ESI applications implement the enhancements we need to get there? Many people believe they won’t, and that we will never be able to support the collection of hyperlinked documents to the extent that requesting parties want. I disagree. We’re already seeing app providers enhance their platforms to address these needs. In December, Google announced the ability to export hyperlinked Google Drive content from Gmail messages. And Microsoft Purview eDiscovery (Premium) does support the ability to collect what it calls “cloud attachments”.

To be sure, both capabilities are limited and can’t support everything users need – yet. But that will change. Why? Because customers will demand it. Do you think litigation is the only reason they need this capability? There are other use cases – such as investigations, HSR Second Requests and incident response – where the ability to get back to the linked files will be important. Companies like Microsoft and Google didn’t get where they are by ignoring customer needs. Expect more enhancements to get us closer to the solution we need which will hopefully be available to all users (unlike Purview’s current collection capability for cloud attachments). I think it’s inevitable.

There you have it – six myths about hyperlinked documents and what will happen with them. Let the debate continue!

So, what do you think? Do you disagree with any of my proposed six myths about hyperlinked documents? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4’s Image Creator Powered by DALL-E, using the term “robot holding up six fingers”.

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.