Treating Hyperlinked Files as Modern Attachments
In today's digital age, where data flows freely across the internet, the legal and technological landscapes are perpetually intertwined. One area where this interconnection is particularly pronounced is in the realm of ediscovery. As legal professionals, it's imperative to understand how modern technologies fit into the traditional legal frameworks.
Treating hyperlinked files and hyperlinked documents as modern attachments is a hot topic in the world of ediscovery, especially after Google changed permissions to make it so that admins in Google Vault could export hyperlinked Google Drive content, such as Google Docs, from Gmail messages, and Microsoft did the same for Purview ediscovery members with what they call cloud attachments on their OneDrive platform. It has the potential to change document retention policies and how organizations respond to future litigation.
Law firms, corporations, and governments are leveraging ediscovery technology like this in different aspects of their workflows, beyond just responding to litigation. Having a software provider that is able to export these hyperlinked documents and files is fast becoming part of established ediscovery best practices.
What are Hyperlinked Files?
Hyperlinked files are essentially URLs or web links that point to documents, data, or resources located online, rather than attachments embedded directly within an email or file.
These hyperlinks can lead to documents stored on cloud services like Google Drive, Dropbox, or company-specific servers. Unlike traditional attachments that come as part of an email, hyperlinked files require an active internet connection to access and can be updated or modified without changing the underlying link.
How Have Hyperlinked Files Previously Been Treated?
Traditionally, the legal treatment of hyperlinked files has been somewhat confusing.
Documents in ediscovery are often referred to in terms of family relationships. For example, there’s a “parent” document, which is the document with an attachment or embedded file, and there’s a “child” document, which is the attached or embedded document that’s dependent on the “parent.”
Whether or not to include hyperlinked files as part of the discovery material often depends on the specific jurisdiction and the judge’s interpretation of relevance and burden. Generally, hyperlinks themselves are not considered to be part of a document, but rather a reference or pointer to external data. However, if a hyperlink is used to circumvent the limitations on file size or to strategically avoid disclosing information by a producing party, courts might view these files differently.
The key issue is the accessibility and control of the linked content. If a custodian has control over the content a hyperlink points to and can manipulate that content, the argument for treating hyperlinks as attachments becomes stronger. This contrasts with hyperlinks to public information or third-party content, which parties have no control over.
Use Cases for Treating Hyperlinked Files as Modern Attachments
The ability to treat hyperlinked files as modern attachments has very real use cases in the law. Since the data contained in them can change and evolve over time, it’s important they be part of data collection just as other data during the discovery process would be.
Investigations
In legal investigations, treating hyperlinks as attachments can be crucial for preserving evidence. Hyperlinks can lead to dynamic content which may change or be deleted over time. By treating them as attachments, legal teams can ensure that the linked information is preserved in its current state, allowing for accurate analysis and review.
This approach is particularly valuable when dealing with cases that involve digital communications, where evidence might be stored across various online platforms.
Personally Identifiable Information
Hyperlinks often lead to documents containing personally identifiable information (PII). In privacy-related cases or where PII is under scrutiny, treating hyperlinks as attachments ensures that all potentially sensitive data is accounted for and protected according to legal standards.
This is crucial for compliance with regulations like GDPR in the EU or CCPA in California, which require rigorous data handling and reporting practices.
Contractual Agreements and Negotiations
In the context of contracts and business negotiations, treating hyperlinks as attachments can serve as a means to verify and preserve the terms and conditions linked during discussions. Business contracts typically refer to terms of service, privacy policies, or other legal documents hosted online, so by treating these links as attachments, parties can ensure that the specific version of the document being agreed upon is captured and immutable.
This is vital for preventing disputes over which version of a document was in effect at the time of agreement and provides a clear, enforceable reference point for all parties involved.
Precedent-Setting Trial
While the case law in this area has been relatively thin, one landmark ruling came from Magistrate Judge Katharine Parker from the U.S. District Court in the Southern District of New York in the case Nichols v. Noom, Inc. Parker’s decision concluded that documents hyperlinked in an email are not traditional attachments, and therefore do not require the incursion of cost and time it takes to produce them with the parent email.
The case was a class action lawsuit against weight-loss app Noom, which relied on Google Workspace for much of its software needs. The plaintiffs in the case believed Noom should have to turn over documents that were included as hyperlinks in emails, saying that while Google Vault would export the hyperlinks, it wouldn’t export the actual documents the links went to. They wanted Noom to use a third-party tool they said would include those documents.
Noom successfully argued that this would slow the discovery process, and go against the precedent that the producing party knows best when it comes to preservation and production of data.
Considerations such as proportionality of time and cost are playing an increasingly important role in courtrooms as litigation costs rise and more data becomes discoverable. As technology advances, however, these burdens will naturally ease, and hyperlinked documents will become incorporated into the ediscovery process.
Evolving Approaches
As the volume of digital information continues to grow exponentially, legal frameworks are evolving to adapt to the complexities of modern technology. One emerging trend is the broader acceptance of hyperlinked files as part of the document production and discovery process. Courts are increasingly recognizing that the distinction between what constitutes an attachment and what constitutes accessible data via a hyperlink is becoming blurred.
Legal professionals and technology experts are collaborating to develop tools and methodologies to effectively capture, preserve, and analyze hyperlinked content. Software solutions now often include features that can automatically collect and archive the content of hyperlinked files, treating them similarly to more traditional attachments, like straightforward email attachments.
This technological evolution is paralleled by a shift in legal perspectives, as more courts begin to recognize the importance of these digital links in the broader context of ediscovery.
How Everlaw is Different
The treatment of hyperlinked files in legal contexts is a vivid illustration of how digital evolution impacts legal practices. As we continue to navigate this shifting landscape, it is crucial for legal professionals to stay informed about technological advancements and functionality, as well as evolving legal standards.
Everlaw allows for hyperlinked files and documents to be treated as modern attachments through the Everlaw connector. When identifying links, Everlaw will capture a unique identifier associated with the document and the application. When collecting the referenced document through a cloud connector, Everlaw will identify the unique identifier and use it to link the two documents. This means that even if documents are uploaded at different times, the links will still be recognized.
Users can upload data to Everlaw from platforms such as Google Drive, Google Vault, OneDrive, Sharepoint, Box, and more, and receive those hyperlinked files on the Everlaw platform in the same file. This helps consolidate documents in one place, instead of having separate files for separate attachments.
Treating hyperlinks as modern attachments is not just a technicality—it's a necessary adaptation to the digital age, ensuring comprehensive and fair legal proceedings. By embracing these changes, the legal community can better serve the principles of justice in an increasingly interconnected world.
