As the use of collaboration and cloud storage platforms expand, litigants and courts are facing increased challenges in keeping up with e-discovery requirements created with different technologies in mind. One example involves the discovery obligations associated with files referenced in email only by hyperlink. Should a litigant be required to find and produce that referenced document as if it were an attachment? What if that is very hard to do? What if the file has moved or changed in the interim? The Southern District of New York recently addressed these issues and held that – for a host of practical and technical reasons – such hyperlinked documents should not “necessarily” invoke obligations to collect and produce the referenced document.

In Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP), 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021), plaintiffs learned that defendant employees frequently used Gmail to send “hyperlinks” that, when clicked on, should navigate to documents stored on the company’s GoogleDrive instance. Plaintiffs moved to “clarify” Magistrate Judge Parker’s initial rulings declining to compel production of the linked documents, arguing that that hyperlinks are akin to attachments and so should be produced as part of a document “family”. Further, without metadata linking the hyperlinked document to the email sharing the hyperlink, plaintiffs argued that it would be impossible to even determine if the documents were part of that family. Plaintiffs also feared that, without strict requirements, some of the documents would elude collection and demanded that defendants either invest in a specialized tool (“FEC”) that automatically pulls hyperlinked documents from GoogleDrive, or create a program that would harvest all the hyperlinks in the production so the referenced documents could be collected and associated with the relevant message.

Unsurprisingly, defendants stood their ground. They argued that Judge Parker got it right when she deferred to defendants’ proposed method of collection and considered the hyperlinked documents not to be family members; and that plaintiffs’ fears that they will receive an incomplete production are groundless because defendants were performing a separate collection of GoogleDrive for relevant documents, and would cooperate with reasonable requests by plaintiffs to seek out particular hyperlinked documents not produced. Nor were plaintiffs’ proposed processes reasonable. Defendant’s discovery expert submitted a declaration stating that the FEC tool was unworkable and that it would cost roughly $180,000 to collect and produce all the hyperlinked documents, resulting in further unneeded delays.

Magistrate Judge Parker denied reconsideration.  The Court acknowledged that that “[t]he 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.” Nichols, 2021 WL 948646, *3. However, the Court reasoned that consistent with Federal Rule of Civil Procedure 26(b)(1)’s proportionality concerns as well as Rule 1’s mandate to ensure the just, speedy, and inexpensive determination of litigation, the relief demanded by plaintiffs was not appropriate.

First, citing the Sedona Principles, Third Edition, the Court found that plaintiffs failed to show that all of the hyperlinked documents were needed or even relevant to impose such a discovery burden. Second, the Court noted that the ESI protocol did not address this issue (e.g., it did not define “attachments”) – which the Court appeared to view as an unforced error by plaintiffs and the motion an attempt to renegotiate the deal. Third, the Court confirmed that hyperlinks are not necessarily akin to attachments, explaining: “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.”  For example, a legal memorandum may contain hyperlinks to a remote library of cases – yet the entire folder is not meant to be part of the document. Similarly, hyperlinks to a phone number or Facebook page may not be intended to form part of the referencing document.

This is a developing area and other scenarios (as well as technology developments) may require differing determinations of when hyperlinked documents are “akin to” attachments. However, this decision is a good reminder that, given the increasingly sophisticated communication technologies, such as Microsoft Teams, Slack, and Google Drive, used by businesses, it is important to consider language in the ESI protocol that could potentially cover more advanced modes of communication used by clients.

Photo of Catherine O'Rourke Catherine O'Rourke

Cathy O’Rourke is a discovery attorney in Crowell & Moring’s Washington, D.C. office, practicing in the E-Discovery & Information Management Practice.

Cathy has significant litigation and e-discovery experience in a variety of matters in state and federal courts. She has represented clients in…

Cathy O’Rourke is a discovery attorney in Crowell & Moring’s Washington, D.C. office, practicing in the E-Discovery & Information Management Practice.

Cathy has significant litigation and e-discovery experience in a variety of matters in state and federal courts. She has represented clients in various complex tort and commercial litigation matters, including national product liability class actions and consumer protection claims. Cathy has first-chair trial experience and has secured successful jury verdicts on behalf of her corporate clients.