E-Discovery
Court Decision Highlights Key Differences Between Hyperlinks and Traditional Attachments
Why This Alert Is Important
Hyperlinks are not the same as traditional attachments, and recent case law clarifies their treatment in e-discovery protocols. This alert is crucial for legal professionals to understand the distinction and its implications for document production.
Overview
The case of In re Insulin Pricing Litig. revolved around several contested ESI issues, including the handling of hyperlinked documents. Hyperlinked documents were not the only issue in contention, which also included the scope of the ESI protocol, prior productions, email threading, search methodologies, and production format.
As to hyperlinked documents, plaintiffs argued that they should be treated as part of a family group with their associated emails, similar to traditional attachments. Defendants countered that this was technologically challenging and unduly burdensome, given the current tools available for collecting and producing ESI.
Following a series of meet-and-confer sessions, both parties submitted their proposed ESI Protocols along with detailed declarations supporting their positions. Defendants emphasized that no current tools could reliably collect or create family connections for hyperlinked documents like they do for traditional attachments. Plaintiffs, however, maintained that the parties should further discuss the feasibility of their proposal.
In this ruling, the court concluded that hyperlinked documents are fundamentally different from traditional attachments concerning collection and production methods on the following basis.
Ruling Summary
- Technological Infeasibility: The ruling acknowledged the technological limitations emphasized by the defendants, particularly since linked documents may have had subsequent changes made after the initial communication was sent, "Each defendant proffers that it is not feasible, practicable, or unduly burdensome to produce hyperlinked documents in family groups, particularly when attempting to produce, in a family group, the ‘as-sent’ version(s) of any linked document.”
- Additional Meet and Confers Unnecessary: Plaintiffs desired further conversation "as to the feasibility of producing hyperlinked documents in family groups," while the defendants argued that it amounted to "discovery on discovery" and therefore was not necessary. They cited In re StubHub Refund Litigation, in which the court modified the ESI protocol to remove the requirement that hyperlinked documents be produced in family groups, and determined that "Additional meet and confers between the parties on this issue, as proposed by Plaintiffs, would only delay discovery.
- Hyperlinks are not the same as traditional attachments: Taking a definitive stance on the issue, the ruling explained, "The Court ultimately must determine whether commercially available tools that may be used to maintain family relationships in the context of hyperlinks are feasible... and, if feasible, if the use of such tools are proportional to the needs of the case and not unduly burdensome.
Judge Singh clearly held that “hyperlinks are not the same as traditional attachments.” (In fact, I would suggest that people stop referring to them as “modern attachments.”) But the important conclusion, as in the recent Stubhub case, is that there is not (yet) a commercially available tool to produce hyperlinked documents along with the “parent” email. However, the technology keeps changing, so lawyers and judges should expect expert testimony in future cases and not just rely on this and other decisions on this issue at this time.
Case Law Tip
Have questions on how the FRCP applies to e-discovery? Want to make sure your arguments align with critical rules governing e-discovery? Download this FRCP E-Discovery Quick Guide to get all your questions answered.