Welcome to the latest debate in electronic discovery: whether embedded hyperlinks to cloud-based files in emails and other communications should be treated as “modern attachments.”
Traditionally, documents like PDFs and Word files attached to emails are considered discoverable. Referring to hyperlinks as modern attachments advocates for considering those links discoverable too. Typically, proponents of this viewpoint are plaintiff-oriented, while opponents are defense-oriented, claiming hyperlinks are not proportional to the case needs. This dichotomy, though significant, overlooks technical hurdles that often reappear with new data sources.
Historically, emails and loose files were the primary electronically stored information (ESI) subject to discovery. With the prevalence of cloud platforms increasing, the need to share files via hyperlinks, rather than embedding attachments within messages, has surfaced. According to Statista, the average number of cloud applications used by organizations worldwide grew from eight in 2015 to 130 by 2022. This shift, although beneficial for information governance, presents significant e-discovery challenges like the inability to access the correct version of a linked file later.
Recent court rulings have further intensified debates over embedded hyperlinks. In Nichols v. Noom (2021), the court ruled that linked files were not attachments because no agreement existed to treat them as such. In contrast, the court found in In re StubHub Refund Litigation (2023) that the files must be produced as attachments due to an explicit agreement.
The recent case of In re Uber Techs. Passenger Sexual Assault Litigation (April 2024) further elaborated on these challenges. The court noted difficulties with tools like Google Vault, which cannot collect contemporaneous versions of hyperlinked documents. Despite this, the court sided with the plaintiffs on the importance of evidence, expanding the definition of attachments to include “modern attachments, pointers, internal or non-public documents linked, hyperlinked, stubbed or otherwise pointed to within or as part of other ESI.”
Third-party solutions are evolving to address the challenges of collecting linked files, yet no comprehensive solution has emerged that meets all discovery team requirements. Regardless of where you fall in the debate on whether linked files should be treated as modern attachments, it remains clear that both technology providers and third-party tools are continuing to advance. Legal professionals who stay informed on the evolving state of technology and court interpretations will be better positioned to navigate these complexities.
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