In Hubbard v. Crow, No. SA-23-CV-00580-FB (W.D. Tex. June 5, 2025), Texas Magistrate Judge Elizabeth S. Chestney ruled on the status of Plaintiffs’ hyperlinked file possession, custody, and control by ordering them to contact the podcaster to see whether it is possible to obtain the original version of the hyperlinked file containing the unedited podcast.

Case Discussion and Judge’s Ruling

In this case, Defendant Crow contended he was entitled to an adverse inference instruction because of spoliation of ESI by the Plaintiffs. Defendant’s motion addressed two types of ESI—an unedited version of a podcast interview of Plaintiff Julia Hubbard and computer data that belonged to Defendant Richard Hubbard. After Plaintiff Hubbard sat for the interview, the podcaster sent her a link to the recording of the podcast for her feedback. The email with the link from the podcaster was produced, but not in its native form, so the hyperlink in the document was not active.

At the time she received it, Plaintiff Hubbard forwarded this email to her attorney. Both she and her attorney viewed the recording. They maintained that the link only allowed them to stream the recording, not to download it. After reviewing the recording, Plaintiffs’ counsel told Plaintiff Hubbard that a certain four-minute segment should not be broadcast because getting into the factual specifics was not a good idea given the ongoing litigation and because her focus on Defendant Richard Hubbard “takes the heat a bit off [Defendant Crow] if his lawyers come across this.”

So, Plaintiff Hubbard forwarded the email from her attorney containing the advice to remove the four-minute segment from the podcast to the podcaster, and the podcaster edited the recording as requested. The parties represented that the edited version of the podcast is still publicly available. But the unedited version the podcaster originally sent was not, and Plaintiff Hubbard and her attorney represented that the link in the email to the original recording did not work anymore. Neither Defendant Crow nor Plaintiffs took steps to ascertain whether the podcaster or anyone else still has the original version of the recording.

As for the computer data, before the litigation began, Plaintiff Goedinghaus accessed and copied data from Defendant Hubbard’s computer to her own. She later transferred some of these files to an SD card. Subsequently, she took her computer to a repair shop, where it was wiped after being left unclaimed for too long. Goedinghaus also stated that the SD card was now corrupted, rendering most of its contents inaccessible. According to Defendant Crow, Plaintiffs had not produced any data from Hubbard’s computer. At the hearing, Plaintiffs agreed to produce the SD card for forensic examination by Crow’s vendor.

As Judge Chestney stated: “There are two obstacles to Defendant Crow obtaining Rule 37(e) relief at this time, and counsel for Defendant Crow conceded at the hearing that the requested relief may be premature. First, it is not clear that the requested ESI is not replaceable or restorable. The podcaster or her company may still have a copy of the original recording. And Defendant’s forensic specialist may be able to restore the files on the corrupted SD drive.”

Continuing, she said: “The question of whether the podcast recording was ever in Plaintiffs’ possession, custody, and control is also in dispute. Hyperlinked files present vexing challenges in the discovery context. It appears that the email with the link to the recording was sent to Plaintiff Hubbard (who forwarded it to her attorney) during the time period covered by Defendant’s discovery requests, and that the email and the recording would be responsive to those requests. Plaintiffs did produce the email but did not produce a copy of the podcast file linked in the email. While the recording may have remained in the custody of the podcaster and merely streamed by Plaintiff Hubbard and her attorney, by asking the podcaster to delete a portion of it, Plaintiff Hubbard arguably exercised control over the file. But for her request to cut a portion of the recording, the entire recording would be available instead of the publicly available version, which is the edited version. Plaintiffs contend that Plaintiff Hubbard and her attorney did not have control over the file, and were merely asking that a portion of the podcast not be aired, not that…any portion of the master recording be deleted. But the email itself refers to making ‘cuts,’ and is not phrased in terms of what should broadcast, so Plaintiffs’ alternative reading is not the most plausible one. To avoid the possibility of sanctions under Rule 37(e), Plaintiffs are directed to contact the podcaster to see whether it is possible to obtain the original version of the file.”

Judge Chestney also gave Defendant Crow thirty days to examine Plaintiffs production of 28,000 new documents on May 31, 2025 and determine whether any issues remain. And, finding that “Defendant Crow has demonstrated that Plaintiffs have fallen short of their obligation to produce responsive material promptly and to be comprehensive in their search for responsive material”, she ordered Defendant Crow “to submit an attorney declaration with billing records detailing the work it maintains is attributable to Plaintiffs’ dilatory productions.”

So, what do you think? What do you think about the Court’s ruling on the status of Plaintiffs’ hyperlinked file possession, custody, and control? Please share any comments you might have or if you’d like to know more about a particular topic.

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