What has happened to our family relationships these days? Of course, we don’t mean the June and Ward Cleaver style nuclear family—that’s not the topic this blog touches on—but the family relationship between an email and its attachments.
As more and more workplace documents are created, edited, and shared exclusively on the cloud, the old-fashioned email attachment appears to be going the way of “Leave it to Beaver” reruns. You can find them, but they’re not as common as they used to be. And for eDiscovery professionals, that poses some tricky questions: Is a linked file the same as an attached one? Must your discovery process recreate that relationship?
The Southern District Court recently addressed this novel question in Nichols et al. v. Noom, Inc., no. 20-cv-3677 (Mar. 11, 2021), finding that, to the extent a hyperlinked document is not exportable, it is not an attachment, and declining to order the producing party to treat it as such.
There’s a long history of including attachments in eDiscovery—or, as they’re often referred to, children, the documents being in a “family” relationship including a “parent” doc, the document with an attachment or embedded file, and a “child” doc, the attached/embedded document dependent on the “parent.” And that makes sense: Attached documents are ESI in the producing party’s possession, custody or control, just like any other document.
But sharing additional documents isn’t just about attachments these days. Gmail automatically creates links to emailed files over 25MB, rather than sending the file itself. Slack eDiscovery exports include links to files shared, rather than the files themselves. Of course, users can also include their own links in their communications.
In an age when more and more of our work is conducted on the cloud, dropping a link into an email is becoming as normal as sending over an actual file. And that’s just what is added manually. Many email platforms recognize email addresses, phone numbers, and unlinked URLs and will automatically create hyperlinks so that you can instantly interact with that information.
It’s not just email that has evolved in this direction, as well. In Logikcull, for example, you can share entire discovery productions, including terabytes of data, with a simple, secure, trackable link. Prior approaches of downloading data, burning to media, FTPing, etc., just aren’t necessary.
Today’s data transfers are increasingly conducted with the click of a link, not the uploading of a file.
When our ways of sharing information change, our discovery processes need to adapt as well. Hence, the debate over attachments vs. hyperlinks in Nichols v. Noom.
The Nichols case involved a consumer class action lawsuit against Noom, the weight-loss app that, if you’re like me, has been following you around social media for months, keeping your “COVID-15” very much on your mind.
Noom, like many start-ups, relies on Google Workspace (formerly G Suite) for email, word processing, and productivity software. And that’s where the hyperlinking issue comes into play.
As the discovery process began, Noom indicated that it would export its email via Google Vault, Google’s information governance and eDiscovery tool for Google Workspace data. While attachments under 25MB in size are exported with emails, in the typical family relationship, large files and any Google Drive files—Google Docs, Google Sheets, and the like—are simply linked. They’re cloud-based documents, after all.
[Shameless plug: Logikcull’s cloud-to-cloud integrations allow users to transfer data directly from cloud sources like Google into Logikcull for processing, review, and production, completely eliminating the need to download documents and transfer them to your review platform. You can learn more about Logikcull’s Google Vault integration here.]
Google Vault, the plaintiffs said, would export Noom’s emails with the hyperlinks, but would not export the linked documents themselves. To produce those documents, Noom would need to complete an additional export, without the parent-child relationship typical of an email and its attached file.
The plaintiffs accused Noom of attempting “to redefine the ‘attachment’ as ‘file hyperlinks’” and thus escape their production obligations. They urged the court to require Noom to use a third-party tool that, per its marketing, “automatically detects and acquires Google Drive attachments and revisions of emails during Gmail and G Suite acquisitions!” [Exclamation in the original.]
The goal would be to preserve (or create, depending on your perspective) the parent-child relationship between emails and linked documents.
But, Noom argued, the plaintiff’s tool would significantly slow the discovery process and, besides, it is long-established that the producing party is best situated to determine the means of preservation and production.
U.S. Magistrate Judge Katharine H. Parker sided with Noom, allowing the company to “export all email attachments, to the extent possible, during discovery in this case” and describing the practice as “the industry standard.” Judge Parker was not swayed by the argument that hyperlinks should be treated as attachments. In a brief memo endorsement, the court ruled that:
To the extent that hyperlinks are not exportable via Google Vault, those hyperlinks are not attachments.
Judge Parker included an important caveat, however. Were linked documents material to a claim or defense and were the plaintiffs unable to access them simply through copying the link into their browser, they could always raise the issue with the court.
And so they did.
Just over a month after the court ruled that Noom could proceed with their export and production as they desired, the plaintiffs filed a motion for reconsideration. The court described their arguments thus:
They argue that hyperlinks are akin to attachments and should be produced as part of a document “family.” They argue that without metadata linking the underlying hyperlinked Noom document to the document containing the hyperlink, they will not be able to determine families of documents. They also express concern that some of the hyperlinked documents may not be produced at all.
Again, the plaintiffs urged the court to require the use of their preferred third-party tool or, alternatively, for Noom to create a similar tool themselves. Again, Noom responded that they were in the best position to determine the appropriate means to preserve and produce documents. Additionally, they now claimed that the plaintiff’s approach would cost an additional $180,000—not the $4,000 or so the plaintiffs had originally claimed.
The significance of what might seem an arcane discovery dispute was not lost on the court:
The issues raised by Plaintiffs raise complex questions about what constitutes reasonable search and collection methods in 2021—when older forms of communicating via emails and documents with attachments and footnotes or endnotes are replaced by emails and documents containing hyperlinks to other documents, video, audio, or picture files. It also highlights the changing nature of how documents are stored and should be collected.
Resolving the dispute required the court to balance multiple imperatives. There was, first, “Rule 1’s mandate to ensure the just, speedy, and inexpensive determination of this action.” So too was there Rule 26(b)(1)’s proportionality requirements. Simultaneously, the court acknowledged Rule 34’s “reasonably usable form” requirement, which “means that ESI should not be produced in a format that makes it unreasonably difficult or burdensome for the requesting party to use the documents efficiently in the litigation”—say by making it excessively difficult to pair a linked document to the original communication in which it was linked.
Yet the court was unwilling to analogize linked documents to attachments:
While the Court appreciates that hyperlinked internal documents could be akin to attachments, this is not necessarily so. When a person creates a document or email with attachments, the person is providing the attachment as a necessary part of the communication. When a person creates a document or email with a hyperlink, the hyperlinked document/information may or may not be necessary to the communication.
A legal memo may have links to supporting case law, Judge Parker explained, but those cases are not “attachments.” An email may link to an entire folder of documents. That folder is not an “attachment.” A document may include internal links, such as in a table of contents. Again, these are not attachments.
Further, “while it may be true that Noom employees frequently create documents with hyperlinks to other internal Noom documents, it is not at all clear that Plaintiffs cannot identify the underlying hyperlinked documents or the quantity that are even material to this action.” The court reiterated that, should additional production or clarifying information be required to associate linked documents with specific custodians or other correspondence, the plaintiffs can simply request it.
This approach, the court reasoned, “strikes an appropriate balance based on the needs of this case.”
Nichols v. Noom is the first case we’ve seen that strikes at the issue of attachments vs. hyperlinks. It is a sticking point that, we imagine, will increasingly become a point of contention in the years ahead.
Parties, too, must stay on top of these changes—and make sure that they account for them early in the discovery process, lest they find themselves arguing for cumbersome changes later on.
But this case is more than just a dispute over hyperlinks. It goes to a more fundamental question: Will courts enforce a status-quo approach to eDiscovery that emerged decades ago, to force novel communications methods to conform with prior models? Or will they allow approaches to collection, review, and production to evolve alongside our ever-shifting ways of communicating? Here, the court chose the latter.
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