Legal Intelligencer: Navigating the Shift: Understanding Modern Attachments in E-Discovery

Despite the growing prevalence of the use of hyperlinks, only a handful of courts have addressed the issue of modern attachments to date.

In the June 10, 2024 edition of The Legal Intelligencer, Kelly Lavelle wrote, “Navigating the Shift: Understanding Modern Attachments in E-Discovery.”

The development of new file-sharing techniques creates a dynamic challenge for legal professionals and raises significant questions about electronic discovery. Most organizations now utilize cloud-based file systems for file creation, organization, and sharing. Rather than cluttering emails with attached documents, links to files stored in web-based clouds are sent, directing recipients straight to the source document. These hyperlinks, often called “modern attachments” or electronic “pointers,” mark a shift in document-sharing practices. This shift has led to a decline in the use of traditional email attachments. While the impact on e-discovery is still evolving, it is one of the key areas to watch this year. Despite the growing prevalence of the use of hyperlinks, only a handful of courts have addressed the issue of modern attachments to date.

Traditionally, email attachments have been regarded as part of an email’s “family” during discovery. However, with the emergence of modern attachments, these files are not part of the underlying message file—therefore, the traditional notion of a “family” is absent. Whether courts will treat these modern attachments as attachments in the traditional sense remains to be seen. Notably, the Sedona Conference defines a “document family” as “a collection of pages or files produced manually or by a software application, constituting a logical single communication of information, but consisting of more than a single stand-alone record.” This definition suggests that a hyperlinked file shared in an email could be considered part of a “document family.” These family associations are important to understanding the context of the documents. Emails without their attachments often lack significance. The documents exchanged within emails are often more important evidence. As with all ESI, the discoverability of the link’s target focuses on whether the (nonprivileged) target is responsive and within the care, custody, or control of the producing party. If the link is part of a relevant, responsive, non-privileged communication, it must be produced. However, courts have begun to distinguish between traditional and modern attachments for discovery purposes.

The court highlighted the distinction between traditional and modern attachments in the 2021 case, Nichols v. Noom, 2021 WL 948646 (S.D.N.Y. March 22, 2021). In Noom, the parties began to negotiate an ESI protocol, but disagreements led to multiple court conferences. Ultimately, Noom agreed to collect relevant data from various sources, including Gmail, G-chat, and Google Drive, and to produce extensive metadata. The parties agreed to the use of Google Vault to collect documents from Google Drive despite the absence of the “filepath” metadata. However, the parties disagreed with the use of Google Vault to collect Gmail emails. Plaintiffs filed a motion to require Noom to use a forensic evidence collector to collect Gmail documents to ensure any hyperlinked documents were also pulled as part of the document “family.” The court permitted Noom to use Google Vault, emphasizing that a producing party can choose its reasonable search and collection methods. To address concerns about the hyperlinked documents, the court allowed plaintiffs to raise issues about missing hyperlinks, and Noom agreed to provide the documents for a reasonable number of cases. Plaintiffs filed a motion for reconsideration. The court denied the motion, noting that the ESI order did not treat hyperlinks as attachments, nor did the order define “attachments.” The court concluded that hyperlinks are not equivalent to attachments and stood by the initial ruling that the defendant did not need to re-collect data with familial attachments in place, explaining that while attachments are a necessary part of a communication, hyperlinked documents may not be.

In another recent case, In re Insulin Pricing Litigation, No. 3:17-cv-0699 (BRM) (RLS), MDL No. 2080 (D.N.J. May 28, 2024), the U.S. District Court of New Jersey addressed several contested ESI issues in connection with the parties’ proposed ESI protocols. The court held that hyperlinks are not the same as traditional attachments, emphasizing that courts must determine whether commercially available tools can maintain family relationships in the context of hyperlinks and if the use of such tools is proportional to the needs of the case and not unduly burdensome.

Regardless of the current rulings on the issue, it is evident that addressing the treatment of hyperlinks in discovery requires proactive measures within the ESI protocol. Federal Rule of Civil Procedure 34 permits a party to specify the form or forms of production; therefore, the requesting party should carefully consider the hyperlink issue when crafting requests. The ESI agreement should include language clarifying how hyperlink documents should be handled. If the source documents cannot be produced with their parent email, at the very least, the file path metadata should be produced so that the documents can be matched with the parent email.