Court Issues Broad Interpretation of Attachments
Why This Alert Is Important
This case sets a significant precedent for e-discovery practices, specifically regarding the handling of hyperlinked documents in cloud-based systems like Google Workspace.
Overview
In the multi-district litigation case In re Uber Techs., Inc. Passenger Sexual Assault Litig., (N.D. Cal. April 23, 2024), California Magistrate Judge Lisa J. Cisneros resolved disputes over electronically stored information (ESI) protocols. The case involves allegations that Uber failed to implement adequate safety measures to protect passengers, resulting in incidents of sexual assault or harassment by drivers.
The Court ordered the parties to meet and confer about issues related to cloud-stored documents, particularly those involving Google Workspace, which Uber uses. They also needed to discuss metadata fields and reach agreement on additional provisions of the ESI protocol.
In a previous pre-trial order, the Court instructed Uber to thoroughly investigate the process of collecting contemporaneous versions of documents linked to Gmail or other communications within Uber’s systems, and encouraged plaintiffs to explore solutions as well. Plaintiffs' expert offered a "proof of concept" methodology to retrieve the linked documents, but could not reach agreement with the defendant (Uber). The parties submitted a Joint Discovery Letter outlining their remaining disagreements, which the Court addressed in this ruling.
Ruling Summary
- The Challenge Posed by Hyperlinked Documents. Judge Cisneros noted that Gmail and Google Chat messages with a links to a Google Drive document pose challenges to the court, in that the linked document may still be changing. "A recipient or others may modify that referenced document," Since "Google Vault does not export, collect, or connect the contemporaneous versions of hyperlinked documents with the corresponding emails or messages," linked documents viewed during discovery may have changed considerably since the time in question in the case
- Contemporaneous Hyperlinked Documents Reveal "Who Knew What, When." While the court acknowledged the technical challenges posed, it also agreed that they had significant probative value in litigation. "Contemporaneous versions of hyperlinked documents can support an inference regarding ‘who knew what, when.’ An email message with a hyperlinked document may reflect a logical single communication of information at a specific point in time, even if the hyperlinked document is later edited." The importance of the documents to proving or disproving claims demands that some effort must be made to produce them.
- Limited Production of Contemporaneous Versions Required. In the ruling, the Court required Uber to preserve and produce metadata for email messages linked to Google Drive files and all cloud-stored documents, including the relationship between any message or email and any cloud-hosted document hyperlinked they reference. Furthermore, contemporaneous versions should be produced "to the extent feasible on an automated, scalable basis with existing technology, the contemporaneous document version... of Google Drive documents referenced by URL or hyperlinks." Despite the inability to automatically produce archived versions from Google Vault, "plaintiffs may identify up to 200 hyperlinks for which they seek the contemporaneous referenced document" that Uber will be required to produce.
Parties should strongly consider defining "attachment" during ESI Protocol negotiations, especially when tackling modern or tricky sources. And when defining that term, they should consider not only the technological capabilities and limitations of their software, but also the burden of producing ESI that falls within that definition. For example, if producing hyperlinked files is technically possible, but highly manual, parties may want to excise those files from the definition of "attachment." Google is a challenging data source, and until there's consensus among the courts and service providers about what data it can and cannot export, explicitness in ESI Protocols will be key to avoiding expensive disputes. Angie Nolet, Senior Corporate Counsel, Redfin, and Co-Founder and Host, EDiscovery Chicks
Case Law Tip
Being prepared for e-discovery “meet and confers,” including understanding of technical challenges your infrastructure may pose, can help you avoid pitfalls like those encountered in this case. Read our blog on preparing for 26(f) meetings for more useful tips.
