When Is a Hyperlink “Control”? Court Clarifies ESI Obligations

Hubbard v. Crow (W.D. Tex. June 5, 2025)

Why This Alert Is Important

Hyperlinked files that may be edited by one or more parties can challenge even the most seasoned professional. In this case, the ruling underscores that, in today’s cloud-based communication environment, “control” may extend beyond physical possession to include access and use.

Overview

In Hubbard v. Crow, the court confronted a timely e-discovery issue: whether a party has “possession, custody, or control” over a file that was shared via hyperlink but never downloaded. The case arose from a discovery dispute in which plaintiffs were asked to produce an audio recording of a podcast episode they had received through a Dropbox link.

One of the plaintiffs recorded an interview with a podcaster after litigation was filed. The interviewer sent the plaintiff a link to a recording of the podcast; when the plaintiff's attorney reviewed the recording, counsel suggested that “a certain four-minute segment should not be broadcast.” The podcaster edited the original recording as requested. After discovery commenced in this case, the original link didn’t function and plaintiff had not downloaded a copy of the original recording.

Defendant alleged spoliation because plaintiffs did not produce the original, unedited version of the podcast. Plaintiffs argued they did not possess the file because the link only allowed them to stream, not download, the recording.

Ruling Summary

• Court denies sanctions over alleged ESI spoliation, at least for now.
  Defendant Crow sought Rule 37(e) sanctions, arguing that plaintiffs had spoliated ESI, including the podcast recording and data from a corrupted SD card. The court found the motion premature, emphasizing that Rule 37(e) requires proof that ESI “cannot be restored or replaced.” Plaintiffs were ordered to determine whether the podcaster still has the original file and to produce the SD card for forensic review. While plaintiff Julia Hubbard’s influence over the podcast's edit arguably showed “control” over the file, the court declined to issue sanctions but left the door open for renewed motions if the original file is no longer available from the podcaster.
• What constitutes “control” of the podcast?
  The court engaged in a nuanced analysis of whether plaintiffs had “possession, custody, or control” over the unedited podcast recording—despite it being hosted and owned by the podcaster. While plaintiffs argued that they only streamed the file and never downloaded it, the court found their influence over the recording significant. Specifically, the court noted that plaintiff Hubbard “arguably exercised control” over the file since plaintiff’s requested edits to the original podcast were made, and as a result, the full unedited version was not publicly available. While the court withheld a final ruling, it found the plaintiff’s explanation “not the most plausible one.”
• Future sanctions or remedies remain in play.
  While denying immediate sanctions, the court established conditions for re-evaluating them. Plaintiffs must confirm whether the original podcast exists and surrender the SD card. The court also ordered defendant to review the new production and instructed that defendant can request limitations on evidence or testimony if deficiencies persist. Importantly, the court signaled concern over plaintiffs’ document handling and responsiveness, reinforcing that parties must preserve and produce discoverable material within their possession, custody, or control—even when that includes links or third-party media. The court reserved the right to revisit the issue if alternative means to recover the ESI fail.

Plaintiffs knew that the podcast included discussion related to the ongoing litigation – even asking the podcaster not to broadcast a segment of the interview directly related to issues in the litigation. The case opinion, however, does not reflect that plaintiffs asked the podcaster to preserve the original recording. It is not surprising that the court left open the possibility of Rule 37(e) sanctions if the original recording is no longer available from the podcaster. Patricia Antezana, Counsel, Reed Smith

Data Privacy 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.

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