In United Ass’n Nat’l Pension Fund v. Carvana Co., No. CV-22-02126-PHX-MTL (D. Ariz. Jan. 12, 2026), Arizona Magistrate Judge John Z. Boyle ordered Plaintiffs to “select 250 responsive emails with hyperlinked attachments” for Defendants to run a search on using Forensic Email Collector (“FEC”), with Defendants to “complete the FEC search and provide Plaintiffs with the most contemporaneous version of non-privileged hyperlinked attachments within 10 DAYS of receiving Plaintiffs’ selection”.

Case Discussion and Judge’s Ruling

In this case involving claims of fraud over Defendants’ stock price, Plaintiffs filed a Motion to Compel Compliance seeking to compel Defendants compliance with the Court’s August 21, 2025, Order (covered by us here), which 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.

In their motion, Plaintiffs alleged that Defendants were severing hyperlinked documents from their parent emails and were refusing to provide both unless the hyperlinked documents and parent emails are independently responsive. They also contended, that under the colors of the best evidence rule, that where a contemporaneous version is available, they are entitled to it; But if the contemporaneous version is unavailable, they are entitled to the non-contemporaneous version.

To counter, Defendants asserted that the use of FEC had not been productive as FEC was only able to collect .4% of top-level executive hyperlinked documents modified within 24 hours in Google Vault. Defendants also argued that of 112,889 total emails, FEC was only able to capture 7,592 responsive emails with hyperlinks. Of those 7,592 emails collected, “many [hyperlinked documents] still had modifications after” the date the parent email was sent. In terms of burden, Defendants stated they spent 1,170 hours and over $200,000 dollars using FEC for the 2 ESI custodians. This translated to a $425 per document price tag for using FEC, which was “105 times more expensive” than using traditional ESI discovery techniques.

In light of Defendants’ findings on the burden of using FEC, Plaintiffs revised their request, specifically requesting that they may choose 1,000 responsive emails from all 25 ESI custodians that Defendants shall run through FEC to find the most contemporaneous version of hyperlinked attachments, with the opportunity to request further production through FEC were this new search to prove fruitful.

Judge Boyle stated: “The use of hyperlinked documents in emails—while not completely novel— presents challenges that are not incurred when parties use traditional attachments…Although both traditional attachments and hyperlinked documents contained within an email may serve similar purposes, courts are loathe to treat them interchangeably.”

Continuing, he said: “the Court finds the best way to proceed on this issue is to strike a fine balance between burden and benefit. Namely, Plaintiffs may select 250 responsive emails that Defendants will be required to run an FEC search upon to find the most contemporaneous version of hyperlinked documents contained in the parent emails. This search is not limited to the two previously selected ESI custodians. Rather, Plaintiffs may select any 250 responsive emails from any of the 25 identified ESI custodians.”

Judge Boyle also said: “This Order does not limit nor extinguish Defendants obligation to provide any and all responsive parent emails and their hyperlinked attachments to Plaintiffs. Because the most contemporaneous versions of non-privileged hyperlinked documents attached to responsive parent emails is broadly relevant and proportional for Plaintiffs’ litigation needs, they must be produced. Accordingly, Defendants shall provide the most contemporaneous version of all hyperlinked attachment from responsive parent emails using traditional ESI discovery techniques” (which he defined in a footnote as “a Google Vault search used without FEC or a script. In other words, Defendants are not obligated to make and use a script in their search, nor are they obligated to use FEC beyond the 250 documents.”)

Regarding Plaintiffs’ request for a production of all non-privileged responsive documents within the ESI custodians’ Google Vault collections, which would then be used to search through all 25 ESI custodians’ emails in the hope of finding a parent email, Judge Boyle stated: “regarding the reverse search, Plaintiffs have not provided any evidence on how such a search could be done. Additionally, Plaintiffs have not presented any arguments on how such a search is proportional to their needs, nor shown that such a search would not be unduly burdensome for Defendants. With this dearth of evidence, the Court, at this time, will not require Defendants to run a full reverse search using responsive non-privileged documents from their ESI custodians’ Google Vault collections. Instead, the Court will allow Plaintiffs, once all responsive and non-privileged documents in the ESI custodians’ Google Vault collections are produced, to select 200 documents that Defendants will attempt to locate a parent email, if one exists. If a parent email exists, Defendants shall produce it as long as it does not contain privileged information. Such limited search appears proportional to Plaintiffs’ needs of knowing ‘who knew what and when,’ but will not be unduly burdensome for Defendants.”

So, what do you think? Are you surprised that Judge Boyle limited the Plaintiffs to “select 250 responsive emails with hyperlinked attachments”? Please share any comments you might have or if you’d like to know more about a particular topic.

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