When talking about hyperlinked files, the contemporaneous version is the same as the “as sent” version, right? Not necessarily.
In preparation for next week’s ACEDS webinar on hyperlinked files, the panelists and I discussed what the “contemporaneous version” really means and it’s not necessarily as simple as it sounds. It’s much worse.
If you remember the In re Uber Techs., Inc. Passenger Sexual Assault Litigation ruling from last year, California Magistrate Judge Lisa J. Cisneros used the term “contemporaneous” to reference the “historic version of a hyperlinked Google Drive document contemporaneous with the email communication”. As Judge Cisneros noted: “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.”
I liked the term “contemporaneous” when Judge Cisneros used it and have promoted it since. Some, however, have preferred the term “as sent” to reflect the version of the file when it was sent. I used to think that term was a different term to mean the same thing. It’s not necessarily the same.
Why? If the goal is to support an inference regarding “who knew what, when”, the “as sent” version may not reflect that. Consider this scenario:
A hyperlinked file is sent from Joe to Sara on December 21st. That is the “as sent” version, no question. But what if Sara is on vacation at that time and doesn’t get around to seeing the email until she returns to the office on January 2nd? During that time, the file is modified two or three times before she gets a chance to look at it.
Which version reflects “who knew what, when”? Is the contemporaneous version: 1) The version at the time it was sent/received? OR 2) The version at the time it was first opened? Which version best reflects what Sara knew and when? The version when it was first opened. That’s the version that’s truly contemporaneous from Sara’s perspective.
Let’s make it even more complicated. Let’s say the file is updated several times and accessed several times by both Joe and Sara. It could easily be argued that several versions of the file “support an inference regarding ‘who knew what, when’”, so there are multiple versions of the file that are contemporaneous.
How do you determine which version(s) of the file to produce? Can you even identify any of them to produce them? Yeesh!
This is one of the topics that Brandon D’Agostino, Vice President of Product at Cloudficient, John Price, Principal Technologist at Cloudficient, Rich Robinson, Director, Legal Operations and Litigation Support at Toyota and I will be discussing next Wednesday, March 5th on the ACEDS webinar Unique Solutions to the Hyperlinked Files Dilemma (available here) at 1pm ET.
We will get technical and discuss some of the considerations associated with hyperlinked files that people aren’t talking about – because it’s even more complex than many people think.
Related Posts
Unique Solutions to the Hyperlinked Files Dilemma: eDiscovery Webinars
Navigating the eDiscovery Challenges of Linked Files: eDiscovery Webinars
How to Navigate the eDiscovery Challenges of Linked Files: eDiscovery Webinars
eDiscovery and Hyperlinked Files in Emails: eDiscovery Webinars
Six Myths About Hyperlinked Documents: eDiscovery Best Practices
So, what do you think? How does your organization handle hyperlinked files? Please share any comments you might have or if you’d like to know more about a particular topic.
Image created using PlaygroundAI, using the term “robot experiencing a nightmare of various files floating around it”.
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.
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Even Judge Cisneros recognized the limits of what she called “contemporaneous” as she herself further limited that term as “ i.e., the document version likely present at the time an email or message was sent.”
Agreed, William. She did limit the term, but also said that “contemporaneous versions of hyperlinked documents can support an inference regarding ‘who knew what, when.’” If you want the version(s) that support that inference, it’s not necessarily going to be the version sent. I think we need to reconsider how “contemporaneous” is applied in this context.
Same situation exists for data coming from Chat apps. When a user joins a channel, they may or may not be provided visibility into its historical content. Even if they are, it may only be within a certain window, for example the past week or 90 days worth, etc. If I am provided access to all historical content, did I go back and actually read everything? If I was provided a hyperlink to a document and opened it immediately upon receipt of the e-mail or chat communication, does the “opened” action necessarily mean I actually read the entire document? What if I only viewed an AI summary of the document instead? It’s a bit of a nested Russian doll situation.
It’s actually nice that we are having the discussion of “which version do the lawyers need?” versus the past 10 years of “it’s too much of a technical challenge, or actually impossible, to retrieve those historical copies.” Those technical barriers are increasingly being alleviated with new tools; we used to entirely avoid the “which copy do you want?” discussion because we couldn’t get our hands on that point-in-time content anyways. So much of the truly probative information is “alive” now, versus sitting in a static e-mail communication, but we as an industry are getting much better at being able to fetch the requested versions – – hopefully ya’ll can let us know which one(s) you need!
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