In United Ass’n Nat’l Pension Fund v. Carvana Co., No. CV-22-02126-PHX-MTL (D. Ariz. Aug. 21, 2025), Arizona Magistrate Judge John Z. Boyle, stating: “The Court will not excuse Defendants from any efforts to produce contemporaneous hyperlinked documents outright simply because they elected to use a suite of cloud-based web applications that would make that process difficult”, ordered Defendants to “produce responsive documents—i.e., the versions of any documents as closely contemporaneous to, but preceding, the email communication as is feasible” for two custodians selected by Plaintiff.

Case Discussion and Judge’s Ruling

In this case involving claims of fraud over Defendants’ stock price, Plaintiffs requested a copy of Google Drive hyperlinked documents as they existed at the time when emails were sent. Defendants asserted that Google Drive documents are designed to be modified by users over time, so it was highly unlikely any technology (including Plaintiffs’ program – Forensic Email Collector (FEC) – would find them as they existed at a certain point in time.

As Judge Boyle stated: “Plaintiffs state that Defendants refuse to produce versions of hyperlinked documents contemporaneous to emails that were sent during the relevant period…Defendants only offer the current versions of those documents that may differ from what the parties to the emails saw at the time because of edits made over the course of the ensuing months and years…This inhibits Plaintiffs’ ability to establish ‘who knew what and when.’”

Defendants argued they “adhered to eDiscovery industry standards, using tools native to Carvana’s Google Workspace to collect emails, documents, and other data” and that the limitations of FEC would cause it to collect inaccurate documents; that those documents would be incapable of authentication and without evidentiary value; and that such efforts would be unnecessary, unduly burdensome, and disproportionate to the case’s needs. Defendants also stated they are “independently reviewing [their] Drive documents, including Linked Documents, for production alongside emails[,]” which they assert are critically different from traditional email attachments.

Referencing the Court’s March 11, 2025, Order governing production, Judge Boyle noting “the Order provides as follows”, stated: “The parties understand that hyperlinked documents will be collected and produced in this case. The parties shall use their reasonable best efforts to collect documents that are links in documents and communications, including, but not limited to, Google G Suite, Microsoft 365, etc. Where the automatic collection of the hyperlinked document is technologically feasible, reasonable, and not unduly burdensome, the hyperlinked document will be collected. The parties will work diligently and collaboratively to come to a common understanding as to the scope of the collection, review, and production and any other issue that arises. In addition, the parties will work diligently and collaboratively to come to a common understanding as to what is reasonable, technically feasible, and not unduly burdensome (e.g., showing the hyperlinked relationship between documents and producing point-in-time version[s] of hyperlinked documents). To the extent the parties are not able to come to an agreement, any disputes will be promptly raised with the Court.”

Stating: “The parties make contrasting representations regarding the potential feasibility and utility of implementing the proposed FEC tool to collect versions of hyperlinked documents contemporaneous to the emails sent”, Judge Boyle said: “The Court recognizes that the collection of hyperlinked documents existing as they did at the time of the email presents challenges. The Court acknowledged the potential for these challenges in the ESI Order. While Defendants insist the process will be difficult and that whatever documents FEC collects may lack evidentiary value, the Court finds a ‘diligent’ and ‘collaborative’ solution in the spirit of the ESI Order requires a compromise. The Court will not excuse Defendants from any efforts to produce contemporaneous hyperlinked documents outright simply because they elected to use a suite of cloud-based web applications that would make that process difficult.”

Continuing, he ruled: “The Court will permit Plaintiff to select up to two custodians comprising a small subset of the overall scope of emails and corresponding hyperlinked documents at issue in the case. Defendants must produce responsive documents—i.e., the versions of any documents as closely contemporaneous to, but preceding, the email communication as is feasible—on or before December 1, 2025, absent further order of the Court. The Court assumes FEC will be used, but the parties may agree to other methods. If this limited test is successful in producing point-in-time hyperlinked documents of evidentiary value without undue burden or expense, the parties may raise the issue of conducting additional discovery into point-in-time hyperlinked documents by filing a motion with the Court.”

So, what do you think? Are you surprised that Judge Boyle said the “Court will not excuse Defendants from any efforts to produce contemporaneous hyperlinked documents”? Please share any comments you might have or if you’d like to know more about a particular topic.

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