After some constructive feedback on it yesterday, I’m revisiting one myth about hyperlinked documents (of six) that I published yesterday.
The post – Six Myths About Hyperlinked Documents – identified six myths as I see them related to the handling of hyperlinked documents in discovery.
Several of you pointed out issues with the first myth (The linked files won’t be retrieved in discovery), noting that it’s often not a myth. Craig Ball noted in a comment to the post:
“[T]he question becomes: Are producing parties collecting all the ‘back-end’ Cloud attachments repositories to process and search that data? If they are, then the attachments may surface, albeit disconnected from any transmittal. If they are not, then what you describe as a myth may be a fact: linked files won’t be retrieved in discovery. We need more than apprehension and anecdotes before I’m content that this evidence is coming to the fore.”
And Helen Geib noted this in a comment to my LinkedIn post promoting discussion about the blog post:
“Qualified agreement that no. 1, ‘linked files won’t be retrieved in discovery,’ is a myth. No argument at all that the files are DISCOVERABLE regardless of the hyperlink issue. Where I think it gets tricky is whether they will actually be retrieved as a practical matter.”
My goal was to point out that even if you can’t pull the linked files via the email, files with responsive content should still be able to be retrieved (from cloud-based document archives like Google Vault, OneDrive and SharePoint) if they are responsive to the request, as I mentioned in assumption #4 here. But I did a poor job of it. Sometimes, linked files actually won’t be retrieved in discovery. That myth is busted.
So, I’m revisiting one myth and stating it a different way to see if I can make it clearer to the intent. Let’s try this:
If you can’t discover the linked file from the email, you can’t discover it at all.
I think I can say that’s a myth because it’s not true – you can (in many instances) discover responsive files directly from cloud-based document archives that may have been linked in emails – the email is not the only path to those files. Again, you may not be able to establish the link, but you should still be able to get to many of the files by searching those repositories.
I say “in many instances” because Robert Keeling pointed out a potential preservation consideration:
“It also presumes that the document still exists. Preservation issues are complicated because the linked document may be in the custodial files of a custodian not under hold (and no expectation that the custodian SHOULD be under hold).”
Yeah, that’s a problem. One without an easy solution. We’re going to need a bigger can for all these worms. 😉
So, there’s no guarantee that the file will be there in the cloud-based document archives. But it could be. At the very least, the restated myth hopefully sets an expectation that there can be another way to get to those potentially responsive files besides email collection and searching. It’s up to the requesting parties to push to get to those files in their discovery requests.
I will wait a day or two for feedback on the restated myth. If nobody finds flaws in my logic on this one, then I will update the original post and note the change in a comment to it. Thanks for the useful feedback, everyone!
So, what do you think? Was revisiting one myth a good idea, or was it better the way it was? Please share any comments you might have or if you’d like to know more about a particular topic.
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