The Modern Attachment: How to Handle Hyperlinked Documents in Emails | Kilpatrick Townsend & Stockton LLP

Most organizations and law firms have some sort of document management system that houses documents. These document management systems typically provide a way to organize documents by project or subject, keep previous versions of documents, and track who has accessed the documents. Additionally, they allow users to send a link to a document directly from the document management system, ensuring that all recipients receive the same most up-to-date version and, often most importantly in terms of efficiency, ensuring that only one person works on a draft document at a time. When we email links to these documents, the document itself is not attached to the email; instead, a hyperlink to the document where it is hosted on the document management system is attached.

As an eDiscovery professional, my next thought is….how do we manage these links in discovery? Are we required to collect them separately (and if they are relevant, wouldn’t they anyway)? Is there a way to collect the actual document via the link and keep it connected to the parent email? And what about documents stored in collaborative workspaces or cloud-based document and meeting platforms? And further, have we appropriately addressed these hyperlinked documents and other so-called “modern attachments” in our standard ESI agreements?

Although the use of hyperlinked documents is still a developing area of ​​eDiscovery, attorneys should consider discussing the production of modern attachments during discovery-related negotiations. Additionally, attorneys should determine, based on the client’s data systems and data management practices, whether it makes sense to include modern attachment language in an ESI agreement. to make sure there are no problems down the road.

Should modern attachments be treated the same as traditional attachments and produced together as a family with the parent email? At least one court has considered this issue, and its decision sheds new light on how we can deal with hyperlinked attachments in our own cases.

Nichols vs. Noom, Inc.., No. 1:20-CV-03677-LGS-KHP (SDNY May 6, 2021)

Trial Judge Katharine Parker of the United States District Court for the Southern District of New York denied a motion for reconsideration, finding that the hyperlinked documents in an email are not traditional attachments and do not require that the defendants incur the costs and time necessary to produce them with the parent’s email. Two important factors influenced the decision: (1) there was no agreement between the parties or the court as to whether the hyperlinked documents are traditional attachments; and (2) it would have been unduly burdensome and disproportionate to require the Respondent to produce all hyperlinked documents as attachments.

The magistrate had previously ordered the defendant to provide Bates numbers to the hyperlinked documents since the plaintiffs could not locate the recordings in the production. The plaintiffs sought to clarify the prior order after realizing that some custodians had a habit of sending hyperlinks to documents rather than attaching the documents to emails. To make matters worse, the defendant used a harvesting tool for its cloud-based document storage platform that did not make the “filepath” metadata field available. The plaintiffs had previously agreed to allow the defendant to use the collection tool. Essentially, requesters could receive hundreds of emails with hyperlinked documents that they might not be able to find elsewhere in the production without the file path metadata.

The plaintiffs asked the defendant to use a different collection tool to allow the hyperlinked documents to be produced as attachments to their parent emails and provided summary evidence showing that the defendant would incur less than $5,000 in additional charges. The defendant objected, arguing that the tool would cause redundancy in document production, increase costs and delay the production of its documents.

The court found the defendant’s argument persuasive and dismissed the motion for reconsideration. Citing the Sedona Principles, the court found that the plaintiffs had failed to demonstrate that all of the hyperlinked materials were relevant or necessary, and further, that imposing the demand for production of all of the hyperlinked materials on the defendant would be unduly burdensome and not proportionate. Further, the court found that the plaintiffs’ assertion that the new tool would only cost $5,000 was not credible and that the plaintiffs failed to adequately address the alleged delay in producing documents. Further, the court found that the plaintiffs failed to address the issue when discussing the ESI agreement and the pre-discovery process. Finally, the court had previously established a mechanism for plaintiffs to request information about a “reasonable number” of hyperlinked documents from defendants and found that plaintiffs had successfully used this mechanism to strike the appropriate balance.

What the complainants could have done differently

Clearly, Plaintiffs should have determined if and how Defendant would produce hyperlinked materials earlier in the discovery process and include instructions in the ESI Agreement. However, in the absence of negotiation on this language, here are some steps that the applicants could have taken differently.

  • The plaintiffs could have demanded that the defendant produce file path metadata for all documents collected from the cloud-based documents platform. The plaintiffs were aware of the hyperlinking problem during the exploratory conference, but did not realize its extent until later. The plaintiffs could have asked the judge to order the defendant to produce the file paths immediately upon becoming aware of the problem. Although some discovery took place, it is more likely that the magistrate would have ordered production of this information in the early stages of discovery.
  • Plaintiffs could have provided credible and thorough contradictory evidence regarding the time and costs imposed by using the new tool in court. If the tool was rather inexpensive and simple to use, and the collection time was minimal, the court might have agreed that the defendants should use it.
  • Finally, because there was a mechanism for requesting documents, the plaintiffs could have requested hyperlinked documents from the defendant using this mechanism. The defendant agreed to provide Bates numbers to a “reasonable number” of hyperlinked documents that the plaintiffs could not find. The plaintiffs could have employed the strategy of requesting all key hyperlinked documents and forcing the defendant to file a motion with the magistrate that the number of documents was unreasonable. The plaintiffs could then have presented the magistrate with the total number of emails containing hyperlinked documents and the number of documents he requested in an effort to show that the requests were reasonable.

How to deal with hyperlinked documents?

This question depends on a multitude of factors and ultimately will likely be decided on a case-by-case basis. However, it should be emphasized that specific language about the use of hyperlinked materials must be included in the custody interview questions and, if applicable, in the ESI agreement.

Of course, how to handle hyperlinked attachments may be a topic worth discussing with opposing counsel prior to the initial pre-trial conference. If opposing counsel seems confused, you may need to urge him to ask his own client or key custodians about his practice of using hyperlinked materials and how best to collect them so that the link between the parent email and the hyperlinked attachment remains. If you find that hyperlinked attachments are becoming a common problem in your cases, you can add language to your standard ESI agreement that explains how hyperlinked documents should be handled and that if they cannot be produced with their parent email, at a minimum, file path metadata must be produced so that you can match them with their parent email.

Factors to consider
  • Production of file path metadata
    • Make sure opposing counsel uses a tool that will include file path metadata in any document collection.
    • Discuss the collection tool that will be used, then discuss limitations with your internal eDiscovery team or vendor.
  • The tool used for collecting
    • Decide which collection tool will be most appropriate to use and advise opposing counsel why your choice is best suited for the job.
      • A specialized harvesting tool may be required if hyperlinked documents are to be treated as traditional attachments.
      • Discuss with the customer why a specialized tool may be needed and how its use could save them time and money in the long run.
    • For the most part, stand-alone documents will need to be collected separately. One exception is Office 365, which is able to extract linked documents with the collected email as long as the linked document is in Sharepoint.
      • If your client or opposing party uses Office 365, discuss the collection process and whether related documents will be automatically collected.
  • Proportionality of time and cost
    • Consider the proportionality of time and cost for any request and be able to explain why the request is necessary and not unduly burdensome.
    • Come to the discovery conference prepared with credible evidence regarding the additional costs and time that may be incurred.

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