New Developments in Case Law Underscore Complexities of Linked Content

In a high profile litigation in the U.S. District Court for the Northern District of California, a judge ruled that while hyperlinked items are not the same as traditional static attachments, they should be considered attachments in the context of e-discovery production requirements.  "Attachment," includes traditional attachments as well as documents linked or pointed to within other electronic stored information. At the same time, the opinion acknowledged the technical limitations of recombining all hyperlinked files and echoed the concerns of many industry experts who believe that the fluid nature of linked content makes it technically, practically and proportionally impractical to collect, process and review in the same way this is done for static attachments. 

The court declined to require the defendant to produce contemporaneous versions of every hyperlinked document. Instead, the court  required that the party must use reasonably available technology to provide the closest version possible that was “likely present” at the time the email was sent and provide two additional metadata fields. The first was “missing Google Drive attachments,” which indicates whether a linked document was collected. The other was “non contemporaneous,”  which indicates whether the version collected was contemporaneous with the parent or not. 

The court opinion included an assumption that inability to access contemporaneous versions was due to a limitation of Google Vault that could be overcome through other preservation or collection methods While the scalability and reasonableness of retrieving contemporaneous versions was discussed, other confounding limitations were not. For example, in Google Drive, previous versions may not exist at all based on the file type or proprietary logic for grouping and preserving revisions. This is not a limitation, rather the nature of the way data is stored in Google Drive. In the end, the court acknowledged limitations and ordered that the requesting party may identify up to 200 hyperlinks for which they seek the contemporaneous referenced document.

With the latest court guidance and previous opinions as a baseline, key legal and technical considerations for legal teams when dealing with linked content in disputes and investigations include:

• Linked documents are different than physical attachments, but the producing party must make reasonable efforts to preserve the metadata relationship between email messages and linked files. 
• Courts recognize the technological limits of re-linking contemporaneous files and the impact on proportionality. They have not to date ordered parties to expend potentially considerable time and resources to develop a program solely for the purposes of producing in discovery. 
• APIs and applications developed using APIs are considered to be just as valid and defensible as off-the-shelf tools and tools provided by the cloud platform in use (e.g., Google Workspace). While this is a positive development, it’s important to keep in mind that APIs are only as defensible as the processes and guardrails put in place around the solution to ensure that it is repeatable, reproducible, auditable and documented.
• Drive URLs and file IDs may be requested to be included as metadata with source email, not necessarily as file attachments.
• Requested metadata fields may not always exist in the cloud system, and therefore must be calculated by the technology provider. Yet, this calculation logic is left to legal and discovery teams to define, which may lead to inconsistencies in results.  

There will continue to be extensive discussion about whether technological capabilities will meet the e-discovery challenges posed by linked content and other emerging data sources. The central reason for this conversation is the shift to the cloud has enabled linked content sharing and access to previous versions.  Courts and the e-discovery world are just now catching up to this reality. This raises the question: will cloud providers fundamentally change the way they store or retain previous versions of files in order to fit the traditional attachment paradigm? Even if they do, the issue of  determining the “correct” version of the file to include in a family grouping will persist. Having technology that supports system specific nuances allows for more dynamic approaches as courts work through these complexities.

It's encouraging to see court opinions evolving on the issue of hyperlinked content. Legal teams and e-discovery professionals must continue to examine these opinions for guidance on what to expect in future matters. Still, linked content and other emerging data sources issues will continue to present a moving target.  Organizations will need help from trusted advisors to develop reasonable and practical workflows for preserving linked content and related metadata, as well as collecting it and maintaining relationships between link source and target documents (i.e., families) for potential discovery and production. 
 

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