There were at least ten takeaways from the Georgetown webinar on hyperlinked documents last week. Here are those highlights*.

The Georgetown Law Advanced eDiscovery Institute (AEDI) presented the webinar titled Current & Next Gen Issues Involving Family Productions and Hyperlinked Documents. The panelists were: Phil Favro of Favro Law PLLC (who did a terrific job moderating the discussion), Paul McVoy of Repario Data, David Robbins of Microsoft, Leeanne Mancari of Covington & Burling LLP and Judge Katherine Parker, US District Judge of the Southern District of New York. Here are ten takeaways from the Georgetown webinar on hyperlinked documents:

Regret on use of the term “cloud attachments”?

Robbins addressed the terminology used by Microsoft, stating that on the Purview and Microsoft 365 side, they “didn’t do anyone a favor by kind of referring to them as cloud attachments” and that he “had nothing to do with naming them cloud attachments”.

Increase in frequency and volume of hyperlinked documents

Robbins has observed a rapid surge in the usage of hyperlink documents and does not see that trend lessening. He also noted that the surge in the use of hyperlinked documents is tied to the advent of modern collaboration; for example, platforms like Teams only use hyperlinked documents and lack the concept of traditional attachments.

McVoy cited stats from ChatGPT that 25% of emails are sent with some form of attachment, which is a total of 76 billion per day (based on our Internet Minute infographic from a couple of years ago that makes sense). By 2030, as much as half of those will be links as opposed to embedded attachments, so that’s roughly 38 billion files linked per day in emails by then.

Security considerations for hyperlinked documents

As Robbins noted, IT groups are actively pushing the use of hyperlinked documents (rather than traditional attachments) because they’re considered more secure. Why? Because the sender can restrict access or immediately cut off access to the document, unlike traditional attachments, where control is lost once the file leaves the mailbox (unless encryption is used).

Versions are like drafts of a document

Judge Parker noted that when we’re talking about hyperlinked documents and what version of a hyperlinked document it is, it’s like talking about different drafts of the same document – the drafts may not be that relevant and you probably don’t need every draft of every document.

Communication between parties to determine what’s needed is key

Judge Parker stressed that perhaps the “conundrum” of “is a document an attachment or is it not an attachment?” can be best resolved through dialogue between the parties as to what is necessary to produce. The evolving way that people are communicating and hyperlinking to documents necessitates more work between parties to communicate about what’s really needed.

Favro noted that even if we had a “Staples easy button” to assume that you could get all of these produced in families, based on what the case law is telling us, producing it all may still be disproportionate to the needs of the case.

An iterative approach may be more efficient

Judge Parker also referenced Rule 1’s governance “to secure the just, speedy, and inexpensive determination” of the action, noting that parties can agree to comply with Rule One and to reduce the burden on each other. Then if it turns out in the exchange of documents and communications that you need to drill down on different versions to really understand the communications and that it’s important for that particular case, then you can go back and get some additional information. That iterative approach may be more efficient for the parties and may be less costly.

Don’t push for everything

McVoy noted that his “two most unfavorite words are all and none. When someone comes to me and say, You need to produce all of the hyperlinks or none of the hyperlinks, that to me is a red flag, and that’s not productive at all.”

Robbins noted that Microsoft has made pretty significant strides making it easier to handle these documents with more to come, but there are still edge cases, so it’s the 80/20 rule, where 80% of the time there’s not going to be any issues.

Understand what your technology can do

Mancari stressed the importance of determining whether the client system can automate the collection of hyperlinked documents from its environment. Certain licenses from Purview can do so. As for Google, the technology changes very quickly, so it may depend on when the hyperlinked file was created.

You may already have the files in the production

Mancari noted that linked files may already be in data sources that you’ve already collected, and they may also have been produced. In a lot of her cases, they first look to see if that document was produced in the production independently before they even go see if they can collect it; if so, they can often provide a key to identify it.

Final thoughts from each panelist

• Judge Parker: “Being reasonable usually is a winning position.”
• McVoy: “Always include your technologist. Because things you think are hard may be not that hard and things you think are easy may actually be very hard.”
• Mancari: “Think about this issue early and know what your client’s technology can do.”
• Robbins: “Hyperlink documents have been around for a long time, and there’s still so much confusion around them. Taking the time to understand the technology is critical.”

So, what do you think of the ten takeaways from the Georgetown webinar on hyperlinked documents? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using Microsoft Designer, using the term “robot holding up hands to show five fingers on each hand”.

*Note that any quotes and observations are based on my notes from the webinar and may not be entirely accurate or may be paraphrased for clarity.

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.