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.
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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”.
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