University of Cincinnati Law Review University of Cincinnati Law Review
Volume 92 Issue 4 Article 9
May 2024
The Missing Links: Why Hyperlinks Must Be Treated as The Missing Links: Why Hyperlinks Must Be Treated as
Attachments in Electronic Discovery Attachments in Electronic Discovery
Lea Malani Bays
Stuart A. Davidson
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Recommended Citation Recommended Citation
Lea Malani Bays and Stuart A. Davidson,
The Missing Links: Why Hyperlinks Must Be Treated as
Attachments in Electronic Discovery
, 92 U. Cin. L. Rev. 979 (2024)
Available at: https://scholarship.law.uc.edu/uclr/vol92/iss4/9
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979
THE MISSING LINKS: WHY HYPERLINKS MUST
BE TREATED AS ATTACHMENTS IN
ELECTRONIC DISCOVERY
Lea Malani Bays
& Stuart A. Davidson
**
INTRODUCTION
New technology can be exciting for some but scary for others. What is
one person’s thrilling new toy may be another person’s worst nightmare.
Take social media, for example. When Mark Zuckerberg launched “The
Facebook” website in 2004,
1
students at Harvard University and
eventually colleges across the nation (and ultimately the world), heralded
the new “social networking” platform as an innovative, revolutionary way
to connect with current friends and make new ones. No one foresaw any
harm with social media, and social media ultimately became the world’s
new and most attended public square.
2
Fast-forward nearly twenty years, and Facebook (now Meta
Platforms), TikTok, Snapchat, and other social media giants are accused
in numerous private and government-enforcement civil lawsuits of
destroying the lives of America’s youth to an epidemic level, as soaring
rates of mental health disorders, including depression, self-harm, and
suicidal ideation are directly attributable to social media.
3
Technology
was fun for a while, until it became what many consider a plague on
society.
* Lea Malani Bays is a partner with Robbins Geller Rudman & Dowd LLP, a 200-lawyer firm
headquartered in San Diego, California, that represents plaintiffs in securities, antitrust, consumer-
protection, and privacy class actions. She is a nationally recognized expert in electronic discovery and
was appointed to The Sedona Conference Working Group 1 Steering Committee, which works to
develop principles, guidance, and best practice recommendations for information governance and
electronic discovery in the context of litigation, dispute resolution, and investigations. She is also a
member of the San Diego ESI Forum Steering Committee, Co-Chair of the ASU-Arkfeld eDiscovery,
Law and Technology Conference, a member of the Board of Directors for the Complex Litigation e-
Discovery Forum, a member of the Advisory Committee for the National eDiscovery Leadership Institute,
and was also appointed to the Global Advisory Council for the Electronic Discovery Reference Model.
** Stuart A. Davidson is a partner with Robbins Geller Rudman & Dowd LLP. His practice focuses on
representing plaintiffs in complex consumer class actions, including cases involving deceptive and unfair
trade practices, privacy and data breach issues, and antitrust violations.
1
. This Day in History: Facebook Launches, HIST. (Feb. 2, 2024), https://www.history.com/this-
day-in-history/facebook-launches-mark-zuckerberg.
2
. Packingham v. North Carolina, 582 U.S. 98, 107 (2017) (explaining that, social media websites
like Facebook and Twitter are, for many, “the principal sources for knowing current events, checking ads
for employment, speaking and listening in the modern public square, and otherwise exploring the vast
realms of human thought and knowledge”).
3
. See, e.g., Plaintiffs’ Master Complaint (Personal Injury), In re Social Media Adolescent
Addiction/Personal Injury Prods. Liab. Litig., No. 4:22-md-03047-YGR (N.D. Cal. Mar. 10, 2023) ECF
No. 180-1.
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I. A BRIEF HISTORY OF ELECTRONICALLY
STORED INFORMATION IN CIVIL
LITIGATION DISCOVERY
The history of electronically stored information (“ESI”) in civil
litigation in America took a different path regarding technology. When
letters became emails, typewriters became word-processing software, and
chalkboards became Microsoft PowerPoint presentations, many
stakeholders in the American justice system were not excited about the
new technologies. Instead, they were anxious about how the discovery
process would undergo a sea change and about the myriad “unknowns”
attendant to collecting and producing vast troves of ESI from complex
computer systems.
4
No longer could an attorney say to their client, “just
point me to the banker’s boxes in your office containing the relevant
correspondence and documents, and I will take care of photocopying it all
and producing it to the other side.” Understanding a client’s entire
organization, from computer networks and cloud-storage usage to smart
phones and USB flash drives, became both necessary and, in most cases,
mandatory.
5
Indeed, a party’s failure to manage ESI can result in court-
4
. See Lee H. Rosenthal, Metadata and Issues Relating to the Form of Production, 116 YALE L.J.
Pocket Part 167 (2006) (“[E]lectronic discovery, with the complexities it can entail, demonstrates the need
for lawyers to attend to production issues at a level of detail that was simply not required with paper.
When the lawyers are unable to agree, conscientious judges must exercise management and supervision
that is also more detailed and often more difficult than was true for conventional discovery.”); Shannon
M. Curreri, II, Defining “Document” in the Digital Landscape of Electronic Discovery, 38 LOY. L.A. L.
REV. 1541, 1541 (2005) (“In this era of modern technology, information is increasingly created in,
conveyed in, stored in, and exchanged through digital or electronic media. As a result, there has been a
drastic growth in the amount of information to review and produce during the discovery phase of civil
litigation. In addition to challenges raised by volume, varying levels of sophistication with respect to
technological expertise, system configurations, and data management add to the complexity of exchanging
information in a coherent and comprehensive manner between adverse parties. Central to addressing the
unique obstacles posed by electronic discovery is the need to define what constitutes discoverable
electronically stored information. What that definition will encompass and in what form such information
will be produced carries significant implications for the scope and cost of discovery, authentication, and
overall litigation strategy.”); see also Burke T. Ward et al., Electronic Discovery: Rules for a Digital Age,
18 B.U. J. SCI. & TECH. L. 150, 154 (2012) (“Prior to the digital age, non-testimonial evidence primarily
consisted of paper documents, photographs and other physical evidence. With the growth of the digital
age, the format of discovery has changed significantly to include electronically stored information.”);
Adjoa Linzy, The Attorney-Client Privilege and Discovery of Electronically-Stored Information, 2011
DUKE L. & TECH. REV. 1, 1 (“The rapid computerization of the 1990s has altered the litigation landscape.
Most businesses have moved away from storing documents in file cabinets and warehouses as documents
are increasingly stored electronically.”); Mia Mazza et. al., In Pursuit of FRCP 1: Creative Approaches
to Cutting and Shifting the Costs of Discovery of Electronically Stored Information, 13 RICH. J.L. & TECH.
11, ¶ 3 (2007) (“The explosive growth of ESI has changed the very nature of discovery, with new
electronic complexities making the preservation and production of evidence far more challenging.”).
5
. See FED. R. CIV. P. 37(e) advisory committee’s notes (“It is important that counsel become
familiar with their clients’ information systems and digital data—including social media—to address
[preservation] issue[s].”); W.D. Pa. LCvR. 26.2.A.1 (stating that prior to conference under FED. R. CIV.
P. 26(f), counsel “shall . . . [i]nvestigate the client’s [ESI] . . . in order to understand how such ESI is
2
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imposed sanctions if the party has, even unwittingly, spoliated evidence.
6
Courts around the country, often with input from legal practitioners and
experts in computer systems, gradually gained an understanding of the
issues surrounding electronic discovery and created best-practices guides,
strategies, and model ESI protocols to assist attorneys and their clients in
navigating these new issues.
7
The Sedona Conference
8
was founded in
1998
9
and its first Working Group (“WG1”) “met on October 17-18,
2002, and was dedicated to the development of guidelines for electronic
document retention and production.”
10
In 2006, the United States
Supreme Court approved amendments to Rules 26
11
and 34
12
of the
stored [, and] how it has been or can be preserved, accessed, retrieved, and produced”); see also Waskul
v. Washtenaw Cnty. Cmty. Mental Health, 569 F. Supp. 3d 626, 635 (E.D. Mich. 2021) (“Attorneys are
dutybound to meaningfully interview relevant custodians ‘to learn the relevant facts regarding ESI and to
identify, preserve, collect, and produce the relevant ESI.’” (quoting DR Distribs., LLC v. 21 Century
Smoking, Inc., 513 F. Supp. 3d 839, 927 (N.D. Ill. 2021))); Qualcomm Inc. v. Broadcom Corp., No.
05CV1958-B-BLM, 2010 WL 1336937, at *2-3 (S.D. Cal. Apr. 2, 2010) (explaining that an attorney must
learn their client’s organizational structure and computer data structure in order to adequately advise the
client of the duty and best method for preserving evidence).
6
. See, e.g., In re Google Play Store Antitrust Litig., 664 F. Supp. 3d 981, 993-94 (N.D. Cal.
2023) (stating that sanctions were warranted where “Google did not take reasonable steps to preserve
electronically stored information that should have been preserved in the anticipation or conduct of
litigation.”); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 439 (S.D.N.Y. 2004) (granting motion for
sanctions after finding that UBS had failed to take all necessary steps to guarantee that relevant data was
both preserved and produced).
7
. See, e.g., E-Discovery (ESI) Guidelines, U.S. N. DIST. OF CAL.,
https://cand.uscourts.gov/forms/e-discovery-esi-guidelines/ (last visited Aug. 12, 2023); Suggested
Protocol for Discovery of Electronically Stored Information, USCOURTS.GOV,
https://www.mdd.uscourts.gov/sites/mdd/files/ESIProtocol.pdf (last visited Aug. 12, 2023).
8
. The Sedona Conference “is a nonpartisan, nonprofit charitable 501(c)(3) research and
educational institute dedicated to the advanced study of law and policy in the areas of antitrust law,
complex litigation, intellectual property rights, and data security and privacy law.” Frequently Asked
Questions, THE SEDONA CONF., https://thesedona
conference.org/frequently_asked_questions (last visited Apr. 23, 2024).
9
. Richard G. Braman, Executive Director’s Note, 1 SEDONA CONF. J. i, i (2000).
10
. The Sedona Conference Working Group Series, THE SEDONA CONF., https://thesedona
conference.org/wgs/ (last visited Apr. 23, 2024).
11
. See FED. R. CIV. P. 26 advisory committee’s note to 2006 amendment (amending, inter alia,
FED. R. CIV. P. 26(a)(1)(ii) (requiring parties to initially disclose “a description by category and location—
of all documents, electronically stored information, and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its claims or defenses, unless the use would be
solely for impeachment”)); FED. R. CIV. P. 26(b)(2)(B) (limiting discovery of “electronically stored
information from sources that the party identifies as not reasonably accessible because of undue burden
or cost”); and FED. R. CIV. P. 26(f)(3)(C) (requiring the parties to discuss a proposed discovery plan,
including discussing “any issues about disclosure, discovery, or preservation of electronically stored
information, including the form or forms in which it should be produced”).
12
. See FED. R. CIV. P. 34 advisory committee’s note to 2006 amendment (amending, inter alia,
FED. R. CIV. P. 34(a)(1)(A) (stating that parties may request production of “any designated documents or
electronically stored information—including writings, drawings, graphs, charts, photographs, sound
recordings, images, and other data or data compilations—stored in any medium from which information
can be obtained either directly or, if necessary, after translation by the responding party into a reasonably
usable form”); FED. R. CIV. P. 34(b)(1)(C) (requests for production of documents “may specify the form
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Federal Rules of Civil Procedure to directly address electronic discovery.
In updating Rule 34 to include ESI, the amendments clarified that requests
for documents should be understood to include ESI and that updated Rule
34 is broad enough to cover “information ‘stored in any medium’ to
encompass future developments in computer technology” and is “broad
enough to cover all current types of computer-based information, and
flexible enough to encompass future changes and developments.”
13
Based
on the committee notes, it is likely that the drafters of amended Rule 34
understood that the nature of ESI would evolve with the advent of new
technology and intended to create rules that embodied basic guiding
principles that would be broad enough to endure such changes.
14
Since
the 2006 amendments, attorneys, electronic discovery professionals, and
courts have used Rules 26 and 34, well-accepted discovery principles, and
common sense to develop a reasoned approach to how discovery rules
apply to new technology.
II. THE MODERN USE OF HYPERLINKS
IN LIEU OF TRADITIONAL ATTACHMENTS
IN ELECTRONIC DOCUMENTS
One particular electronic discovery issue, however, continues to
confound courts and lawyers, and, as such, the electronic discovery law
has yet to catch up with new technology. The court and lawyers alike
grapple with what exactly to do about so-called “hyperlinks,” “modern
attachments,” and “cloud attachments” in electronic documents. Are they
emails, chats, word-processing documents, or presentations?
While most people with at least some basic computer knowledge
understand that a hyperlink is, at a minimum, “a bit of text, an image, or
a button in a . . . document that you can click” with a mouse press to bring
up (or launch) other documents, webpages, or other parts of the same
or forms in which electronically stored information is to be produced”); FED. R. CIV. P. 34(b)(2)(E)(i)-(ii)
(requiring producing party to “produce documents as they are kept in the usual course of business or must
organize and label them to correspond to the categories in the request,” and “[i]f a request does not specify
a form for producing electronically stored information, a party must produce it in a form or forms in which
it is ordinarily maintained or in a reasonably usable form or forms”).
13
. See FED. R. CIV. P. 34 advisory committee’s note to 2006 amendment (amending, inter alia,
34(a)(1)(A)).
14
. See id. (noting that “[i]n 1970, Rule 34(a) was amended to include discovery of data
compilations, anticipating that the use of computerized information would increase[,]” and that “[s]ince
then, the growth in electronically stored information and in the variety of systems for creating and storing
such information has been dramatic. Lawyers and judges interpreted the term ‘documents’ to include
electronically stored information because it was obviously improper to allow a party to evade discovery
obligations on the basis that the label had not kept pace with changes in information technology.”).
Accordingly, the committee made clear that “Rule 34(a) is amended to confirm that discovery of
electronically stored information stands on equal footing with discovery of paper documents.” See id.
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document or webpage,
15
the electronic discovery world has not yet
embraced the fact that, with the advent of cloud-based storage (e.g.,
Dropbox, Google Drive, Microsoft OneDrive, and iCloud), companies
use hyperlinks, rather than attach files, in emails and documents with
increasing frequency.
A. Courts Have Repeatedly Acknowledged That the
Federal Rules of Civil Procedure Provide Important
Guiding Principles for Collecting and Producing
All Documents Relevant to a Claim or Defense,
Including Attachments to Other Documents
For many decades, the Federal Rules of Civil Procedure have made
clear that attachments must be produced in civil discovery along with the
“parent” document because that is how the document was “kept in the
usual course of business” and “ordinarily maintained[.]”
16
In the 1950s,
for example, that would have meant that a document stapled to another
document, or a document enclosed in an envelope with a letter, must be
produced alongside its parent document. Similarly, in the 1980s, the
discovery production would have included a fax coversheet indicating the
intended recipient and sender followed by the faxed document.
Since the transformation of electronic discovery in the early 2000s,
courts have routinely held that emails, for example, must be produced
with their attachments, just like any “stapled” or “enclosed” document.
17
15
. Brian P., Hyperlink, TECHTERMS.COM (May 3, 2023),
https://techterms.com/definition/hyperlink.
16
. See FED. R. CIV. P. 34(b)(2)(E)(i)-(ii) (requiring producing party to “produce documents as
they are kept in the usual course of business or must organize and label them to correspond to the
categories in the request” and, “[i]f a request does not specify a form for producing electronically stored
information, a party must produce it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms . . . .”); see also Crawford v. Midway Games Inc., No. CV 07-967
FMC(JCX), 2008 WL 11340327, at *1 (C.D. Cal. June 23, 2008) (“A party who chooses to comply with
its obligations under Rule 34 by producing documents as kept in the ordinary course of business, bears
the burden of demonstrating that the documents produced were in fact produced in that manner.”); DE
Techs., Inc. v. Dell Inc., 238 F.R.D. 561, 566 (W.D. Va. 2006), aff’d in part, modified in part, No.
7:04CV00628, 2007 WL 128966 (W.D. Va. Jan. 12, 2007) (same).
17
. See, e.g., Consol. Rail Corp. v. Grand Trunk W. R.R. Co., No. CIV.A.09-CV-10179, 2009 WL
5151745, at *3 (E.D. Mich. Dec. 18, 2009) (finding that producing party’s document production complied
with Rule 34’s “usual course of business” requirement where, inter alia, “[e]mail attachments were
produced directly following the corresponding email”); U & I Corp. v. Advanced Med. Design, Inc., 251
F.R.D. 667, 675 n.14 (M.D. Fla. 2008) (“The dubious practice of producing e-mails without attachments
in federal discovery has not gone unnoticed by other courts.”); PSEG Power N.Y., Inc. v. Alberici
Constructors, Inc., No. 1:05-cv-657, 2007 WL 2687670, at *12 (N.D.N.Y. Sept. 7, 2007) (“Without
question, attachments should have been produced with their corresponding emails as such are kept in the
usual course of business.”); CP Solutions PTE, Ltd. v. Gen. Elec. Co., No. 3:04cv2150, 2006 WL
1272615, at *4 (D. Conn. Feb. 6, 2006) (“Defendants chose to provide the documents in the manner in
which they were kept in the ordinary course of business. Attachments should have been produced with
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This is so, even if the attachments themselves may not be relevant to the
case at bar.
18
The reason all attachments should nevertheless be produced
alongside relevant emails is not only because the document is physically
attached to the email, but also because its incorporation into a relevant
communication creates an inference of relevance for the attachments and
each attachment provides context to the parent email and vice versa.
19
Simple enough, right?
B. Hyperlinked Documents Are Functionally
no Different Than Traditional Attachments,
but Their Collection Is More Complicated
But what does the law say about a situation in which, for example,
rather than attaching a document to an email, a company’s employee
provides a hyperlink to another document within the body of the email for
the recipient to “click on” to review and perhaps even comment or edit?
Here, it gets a little thorny. The thicket does not seem to answer the
question of how the hyperlinked document or parent email was “kept in
the ordinary course of business” or “ordinarily maintained or in a
reasonably usable form,” as the Federal Rules of Civil Procedure
require,
20
or even whether the hyperlinked document is relevant to the
case or responsive to a party’s particular discovery request. Instead,
because the technological ability to collect and organize hyperlinked
documents with the parent documents is just catching up with the
collaborative use of cloud-based documents, the issue is whether a party
that uses hyperlinks instead of or in addition to traditional attachments
should be required under the Federal Rules of Civil Procedure to collect
and produce hyperlinked documents with the parent documents because
it differs from how collections and productions have traditionally been
implemented.
A hyperlinked document may be physically stored in a different
their corresponding e-mails.”).
18
. See, e.g., Symettrica Ent., Ltd. v. UMG Recordings, Inc., No. CV 19-1192-CJC (KS), 2020
WL 13311682, at *5 (C.D. Cal. July 17, 2020) (“[W]ell settled authorities from this Circuit and beyond
require that . . . [a party] must also produce any linked attachments, notwithstanding its contentions that
those attachments maybe irrelevant.”).
19
. See, e.g., Families for Freedom v. U.S. Customs & Border Prot., No. 10 CIV. 2705(SAS), 2011
WL 4599592, at *5 (S.D.N.Y. Sept. 30, 2011) (“Context matters. The attachments can only be fully
understood and evaluated when read in the context of the emails to which they are attached. That is the
way they were sent and the way they were received. It is also the way in which they should be produced.”).
20
. See supra notes 12, 16-17; Judge Rotenberg Educ. Ctr., Inc. v. U.S. Food & Drug Admin., 376
F. Supp. 3d 47, 61-62 (D.D.C. 2019) (reviewing case law finding that even if emails and their attachments
are not per se a single record that the email and attachment are part and parcel when the email references
or includes discussion of the attachment and that, in the ordinary course, the attachment relates to the body
of the email).
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location than its parent email, but if one were to produce documents as
they are “kept in the usual course of business” or “ordinarily maintained,”
the receiving party would be able to click on the hyperlink and be taken
straight to the referenced document. This may not be something that is
practical to replicate in the production set. However, under the procedural
rules, the documents are still required to be produced in a “reasonably
usable form.”
21
This is commonly understood to require that, if “the
responding party ordinarily maintains the information it is producing in a
way that makes it searchable by electronic means, the information should
not be produced in a form that removes or significantly degrades this
feature,”
22
and does not allow a responding party to “convert [ESI] from
the form in which it is ordinarily maintained to a different form that makes
it more difficult or burdensome for the requesting party to use the
information in litigation.”
23
Applying these principles to hyperlinked
documents would mean that the format of production for emails and their
hyperlinked documents could take the same form of production as
traditional emails and attachments by producing the document directly
following the parent email along with a unique identifier showing a family
relationship. Or, although more cumbersome but still arguably
“reasonably usable,” by including a field in the ESI “load file”
24
that
contains a unique identifier for the produced hyperlink file but without an
actual family relationship. However, not providing the receiving party
any way to identify the hyperlinked document in the production, or not
requiring the production of the hyperlinked document at all, seems to be
inconsistent with Rule 34 of the Federal Rules of Civil Procedure.
25
Few courts have wrestled with this issue and those that have either
reached opposite conclusions or left the legal issue of the correlation
between the Federal Rules of Civil Procedure’s mandates and
hyperlinked documents for another day by attempting a compromise. By
analyzing the reasoning (but not necessarily the conclusions) in recent
case law, as well as the technology available to address perceived
problems attendant to producing hyperlinked documents, some fairly
straightforward guidelines become clear. These guidelines are, as they
21
. FED. R. CIV. P. 34(b)(2)(E)(ii) (“If a request does not specify a form for producing
electronically stored information, a party must produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms.”).
22
. FED. R. CIV. P. 34(b) advisory committee’s note to 2006 amendment.
23
. Id.
24
. A “load file” is “a file that helps load and organize information within electronic discovery
software so that the documents may be viewed, searched and filtered.” What is a Load File?, PERCIPIENT
(Sept. 29, 2014), https://percipient.co/load-file/. The load file generally contains, for each document, an
image file (usually produced in .tiff format), the document’s metadata, and the document’s text contents.
Id. “The load file then ties all the information together within the software by connecting the image files
to the right text and metadata files.” Id.
25
. FED. R. CIV. P. 34(b)(2)(E)(i)-(ii).
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should be, grounded in the same common sense used for the last two
decades in interpreting discovery rules as applied to ESI.
C. Not All Hyperlinks Are Created Equal
In short, not all hyperlinks are created equal. For example, when
hyperlinks are used to link to an internal user-created document housed
on an enterprise system, such as Microsoft 365 or Google Workspace,
hyperlinked documents should be treated, collected, and produced as
attachments on a wholesale basis. However, other hyperlinks should be
treated as attachments, but proportionality concerns embedded in Rule
26(b)(1),
26
based on current technological feasibility, may require a more
targeted, ad hoc approach because they are housed on varied third-party
sites and are not part of an integrated system that may require more effort
to collect and produce together with the parent document (i.e., with the
family relationship). Some hyperlinks, such as links to publicly available
documents or hyperlinks to non-user created information, such as phone
numbers or email addresses, do not need to be produced as attachments
because they are not integral to the document or are equally available to
the receiving party without production.
D. The Court’s Flawed Conclusion About
Hyperlinks in Nichols v. Noom, Inc.
The opinion in Nichols v. Noom, Inc.
27
broadly pronounced that
hyperlink documents were not attachments, and refused to order the
defendants to collect and produce hyperlinked documents along with their
emails.
28
The court’s approach in Nichols has been erroneously followed
in some cases, ignoring decades of discovery law and throwing out
common sense merely because of simple technological evolution. The
court’s opinion, however, is helpful to understand so that one can
correctly recognize when its conclusion should apply.
In Nichols, the court acknowledged that “hyperlinked internal
documents could be akin to attachments, [but] this is not necessarily so.”
29
26
. FED. R. CIV. P. 26(b)(1) (“Scope in General. Unless otherwise limited by court order, the scope
of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to be discoverable.”).
27
. No. 20-CV-3677 (LGS) (KHP), 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021).
28
. Id. at *5.
29
. Id. at *4.
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The court reasoned that when a person creates a document or email with
attachments, that the attachment is a necessary part of the
communications, but that when a person creates an email with a
hyperlink, the hyperlinked document may not be necessary to the
communication.
30
As support for this distinction between attachments and
hyperlinks, the court listed various examples of hyperlinks that would not
be akin to attachments, such as hyperlinks to cases cited in legal memos,
hyperlinks to other portions of the same document, hyperlinks to a phone
number, hyperlinks to a tracking site for shipments, hyperlinks to a
Facebook page, and hyperlinks to terms of use or legal disclaimers.
31
Although the court was correct that not all hyperlinks are akin to
attachments (i.e., not all hyperlinks are created equal), the plaintiffs in this
case asked the defendants to use existing forensic collection methods
designed to collect the company’s Google-based emails and their
hyperlinked internal documents stored on the company’s Google
Workspace, rather than the types of hyperlinks the court imagined.
32
The
court’s reasoning, therefore, was flawed.
Other rationales the Nichols court used to conclude that hyperlinked
documents need not be produced are arguments that are equally
applicable to routine email attachments—rationales that have been
rejected by courts for decades. For instance, the court stated that the
collection of hyperlinked documents “would certainly increase the review
population.”
33
This statement is perplexing since it would be equally true
with respect to traditional attachments, which no court would
countenance. The court also noted that the hyperlinked documents may
be duplicative of the collection of documents pulled from a search of
documents stored in Google Drive or pulled from a hyperlink in another
email.
34
Taken to its logical conclusion, however, the court would have
also determined that a document attached to an email would be
duplicative of the document stored on an employee’s computer or
attached to a later-in-time email because they, too, may also be separately
produced—a position rejected by courts time and again.
35
Industry
standard deduplication is done on a “family level,” meaning that stand-
alone documents or documents that are attached to unique emails are not
deduplicated even if the attached document is an exact duplicate.
36
The
30
. Id.
31
. Id.
32
. See Declaration of Douglas E. Forrest at 5-6, Nichols v. Noom, Inc., No. 1:20-CV-3677-LGS
(S.D.N.Y. Mar. 8, 2021), ECF No. 236.
33
. Nichols, 2021 WL 948646, at *4.
34
. Id. at *3.
35
. See supra notes 17-20.
36
. Using Near-Duplication to Dedupe Document Collections Can Be Dangerous, SPECIAL
COUNSEL (May 19, 2016), https://blog.specialcounsel.com/ediscovery/using-near-duplication-to-dedupe-
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Nichols court offered no relevant distinction between hyperlinks and
traditional attachments to support its diversion from industry standards.
Even if the duplicative nature of the hyperlinked documents was a
legitimate concern unique to hyperlinks, the technology had already
evolved to accommodate this concern—the collection tool the Nichols
plaintiffs asked the defendants to use already allowed for duplicate
documents to be excluded.
37
In support of the conclusion that hyperlinked documents should not be
treated as attachments, the Nichols court also noted that not all of the
hyperlinked documents would be material to the case.
38
Discovery law
and standard industry practice demand that all attachments be produced
if even one of the documents in the document family is relevant.
39
The
court already recognized this standard by acknowledging that an
attachment is a “necessary part of the communication” and should
therefore be produced with the communication.
40
The court, however,
offered no relevant distinction, beyond inapplicable examples,
41
to
demonstrate why hyperlinked documents would not also be a necessary
part of the communication, and therefore material to the communication.
The Nichols court’s refusal to find the value in a party’s ability to show
document-collections-can-be-dangerous
[https://web.archive.org/web/20190407220822/http://blog.specialcounsel.com/ediscovery/using-near-
duplication-to-dedupe-document-collections-can-be-dangerous/] (“[I]n eDiscovery, deduplication is
performed on a family level rather than a document level. This means that the same Word document
attached to two unique emails will not be deduped because they are parts of unique families.”); Production
Deduplication, DISCO, https://support.csdisco.com/hc/en-us/articles/205830890-Production-
deduplication (showing that DISCO only offers two types of deduplication—global or custodian level
deduplication by family); Patrick Oot et al., Ethics and Ediscovery Review, 28 ACC DOCKET 46 (Jan./Feb.
2010) (“[L]awyers typically want to make review decisions at the message attachment group level, i.e.,
looking at emails and their attachments as one logical unit, meaning that the email and attachments will
all be treated alike, whether relevant or privileged. For documents that are attached to multiple emails,
that may mean that the review platform might contain a copy for each message attachment group to which
the document belongs . . . .” (emphasis added)).
37
. See Acquiring Google Drive Attachments of Emails, METASPIKE (June 26, 2023),
https://docs.metaspike.com/article/46-acquiring-google-drive-attachments-of-emails. Metaspike’s
Forensic Email Collector (“FEC”) is available with an annual $1,099 license and widely used in the
electronic discovery industry to collect documents from Google’s cloud-based systems. Forensic Email
Collector, METASPIKE, https://www.metaspike.com/shop/forensic-email-collector/ (last visited Apr. 23,
2024). This tool allows for the collection of the email and the hyperlinked document (the version of the
document that existed closest to the time the email was sent and the current version of the document) and
can create a family relationship between the documents, but only during the collection process. Acquiring
Google Drive Attachments of Emails, supra.
38
. Nichols, 2021 WL 948646, at *1.
39
. See Symettrica Ent., Ltd., 2020 WL 13311682, at *5 (“[W]ell settled authorities from this
Circuit and beyond require that . . . [a party] must also produce any linked attachments, notwithstanding
its contentions that those attachments maybe irrelevant.”).
40
. Nichols, 2021 WL 948646, at *4.
41
. Id. (listing examples such as where a document contains a hyperlink to another portion of the
same document, to a phone number, to a shipment tracking number, to a term of use, or to a legal
disclaimer).
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a link between the parent communication and the hyperlinked document
is not explained by the rationale provided and is also inconsistent with
basic discovery principles.
42
But the conclusion seems to squarely rest on
the level of burden asserted by the producing party. The defendants in
Nichols had already collected the documents and using the plaintiffs’
desired collection method for hyperlinked documents would have
required recollection.
43
Courts tend to disfavor repetition.
44
The burdens
of collection and review, though overstated, were convincingly
articulated to the court. The court even suggests that there is hope on
horizon when “future ESI software will be able to provide greater
efficiencies and reduced costs to address the concerns of both parties.”
45
However, the tool the plaintiffs asked the defendants to use in Nichols
was far more efficient, if used during the initial collection, than the more
manual ad hoc process that the court endorsed. Not to mention, the burden
placed on the receiving party to guess which document was connected to
which email and which documents may have been entirely missing from
production.
Importantly, the Nichols court also mentioned that the ESI protocol the
parties negotiated, and the court entered, did not specify that hyperlinks
would be treated the same as attachments.
46
Since the Nichols decision,
parties now more frequently address the issue of hyperlinks when
negotiating ESI protocols. Courts have often enforced parties’ agreed-to
protocols that treat hyperlinks as attachments.
47
Although there may have been reasons for the court to deny the
plaintiffs’ request for hyperlinked documents in Nichols, based upon the
case’s specific circumstance, the court’s broad proclamation that
hyperlinked documents are not attachments was unnecessary and
overbroad. Electronic discovery professionals and scholars have raised
serious concerns about the Nichols decision and its potential fallout for
good reason.
48
Treating hyperlinked documents as distinct from
42
. See supra notes 17-20.
43
. Nichols, 2021 WL 948646, at *2.
44
. See, e.g., McSparran v. Pennsylvania, No. 1:13-CV-1932, 2016 WL 687992, at *4 (M.D. Pa.
Feb. 18, 2016) (holding “it would be unduly burdensome to require Plaintiff to effectively redo document
production in response to Defendants’ belated request for metadata”); Romero v. Allstate Ins. Co., 271
F.R.D. 96, 106 (E.D. Pa. 2010) (noting “prevailing case law supports the notion that it is unduly
burdensome for a party to effectively ‘redo’ a production of documents as a result of a belated request for
metadata” (citing Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 425-26 (D.N.J. 2009))).
45
. Nichols, 2021 WL 948646, at *5 n.5.
46
. Id. at *3.
47
. See, e.g., In re Stubhub Refund Litig., No. 4:20-md-02951-HSG, 2023 WL 3092972 (N.D.
Cal. Apr. 25, 2023).
48
. See Letter Amicus Brief from Profs. W. Hamilton & A. Pardieck to Hon. Lorna G. Schofield,
Nichols, 2021 WL 948646, ECF No. 297 [hereinafter Profs. W. Hamilton & A. Pardieck] (expressing
disagreement with Magistrate Judge Parker’s conclusion that hyperlinks are not attachments); Tom
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traditional attachments to emails in all cases plainly ignores the natural
relationship between the email and the hyperlinked document where, in
the usual course of business, an employee receiving an email with a
hyperlink clicks on the link to retrieve the document, just as they would
have had to click on the attachment to the email. This relationship cannot
and should not be destroyed once the documents are produced in
litigation. Doing so would not only contravene the Federal Rules of Civil
Procedure’s command to produce documents “as they are kept in the
usual course of business” and “in a form or forms in which [they are] . . .
ordinarily maintained or in a reasonably usable form,”
49
as going from a
click of a hyperlink to not being able to identify the hyperlinked document
at all would clearly “remove[] or significantly degrade[]”
50
the recipient’s
ability to search for the hyperlinked document and make it “more difficult
or burdensome for the requesting party to use the information efficiently
in the litigation.”
51
Failure to include documents hyperlinked to an email,
just like the failure to include traditional attachments, fails the basic tenets
of Rule 34 and is not reasonable.
E. An Ad Hoc Approach to Hyperlinks Ignores How
Businesses Today Store Documents and
Information and Twenty-first Century
Technological Advancements
The ad hoc approach to the production of hyperlinked documents with
the parent communication that the court settled on in Nichols, one that has
been echoed in other cases,
52
ignores the way that businesses have
changed how they share information. Today, businesses routinely use
cloud-based document storage, including Microsoft OneDrive and
Google Drive. These systems do not rely on attachments because the
document is available in the cloud with a mouse click. In fact, there are
O’Connor, Are Hyperlinks the Same as Attachments? Judge Parker Opinion in Nichols v. Noom, DIGIT.
WAR ROOM (May 21, 2021), https://www.digitalwarroom.com/blog/
are-hyperlinks-the-same-as-attachments-judge-parker-opinion-nichols-v.-noom (“The problem of linking
is not major, does not require an enormous expenditure of time or money and is, in fact, already
accomplished by other vendors.”); Hanzo, Case Law Summary: Are Hyperlinked Documents the Same as
Attachments?, JD SUPRA (Apr. 16, 2021), https://www.jdsupra.com/legalnews/case-law-summary-are-
hyperlinked-7412961/ (“While this is an evolving area of the law, I anticipate that future courts and future
opinions will reach a different conclusion.”); Michael Berman, What Is a “Document?”, E-DISCOVERY
LLC (Aug. 17, 2021), https://www.ediscoveryllc.com/what-is-a-document/ (“Noom’s production of
documents without links does not appear to conform to Rule 34(b)(2)(E)(ii)’s procedural mandate.”).
49
. FED. R. CIV. P. 34(b)(2)(E)(i)-(ii).
50
. FED. R. CIV. P. 34(b) advisory committee’s note to 2006 amendment.
51
. Id.
52
. See, e.g., Porter v. Equinox Holdings, Inc., No. RG19009052, 2022 WL 887242, at *2 (Cal.
Super. Ct. Mar. 17, 2022).
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times that a user is required to use a hyperlink instead of an attachment
in order to control the volume of their email (i.e., the attachment’s size is
too large to send as a traditional email attachment).
53
Unquestionably, this
new practice has changed the way the collection and production of ESI
must proceed. However, technological advancements cannot and should
not be used to circumvent or obstruct discovery. Nor should parties be
permitted to simply throw their hands up at the technical impositions of
producing discovery from cloud-based systems. As law professors stated
in an amicus letter to the Nichols court in an effort to provide the court
with context to the broader issue regarding hyperlinks, “the separation of
email and linked files is not a problem without a solution” and warned
that the ruling would delay “technological progress and encourage
gamesmanship.”
54
The ability to use forensic software to collect and produce hyperlinked
documents, including the version of the document that existed at the time
the email was sent, and to create the correct family relationship with the
parent email, exists and is continuing to improve. Indeed, some software
manufacturers’ cloud-based systems, such as Microsoft OneDrive,
55
also
use hyperlinks, but have created ways to collect hyperlinked documents,
including a recent change to allow the collection of the version of the
document that existed at the time the email was sent so long as certain
criteria is met.
56
Other cloud-based systems, such as Google Drive, have been reluctant
to evolve. In fact, Google has used its capabilities, or lack thereof, as a
reason to resist linking emails with their hyperlinked attachments.
Although companies cannot be forced to change their systems, it is
hornbook law that parties in civil litigation also “cannot seek to preclude
[one party] . . . from pursuing discovery based on a record-keeping system
that is plainly inadequate.”
57
Nevertheless, for those cloud-based systems
53
. Send Attachments with Your Gmail Message, GOOGLE,
https://support.google.com/mail/answer/6584?hl=en&co=GENIE.Platform%3DDesktop#zippy=%2Catt
achment-size-limit (last visited Apr. 23, 2024) (“If your file is greater than 25 MB, Gmail automatically
adds a Google Drive link in the email instead of including it as an attachment.”).
54
. See Profs. W. Hamilton & A. Pardieck, supra note 48, at 3.
55
. See Collect Cloud Attachments in Microsoft Purview eDiscovery (Premium), MICROSOFT
(Oct. 1, 2023), https://learn.microsoft.com/en-us/purview/ediscovery-cloud-attachments?
view=o365-worldwide&source=recommendations.
56
. Unexplainably, some courts still entertain arguments that they should not have to use a tool
that is literally built into their system because it would “disrupt [the producing party’s] . . . standardized
workflow for ESI-related discovery processing,” despite the fact that new technology is inherently
disruptive and necessarily requires evolution. In re Meta Pixel Healthcare Litig., No. 22-cv-03580-WHO
(VKD), 2023 WL 4361131, at *1 (N.D. Cal. June 2, 2023).
57
. See, e.g., Pom Wonderful LLC v. Coca-Cola Co., No. CV 086-237 SJO (FMOx), 2009 WL
10655335, at *3 (C.D. Cal. Nov. 30, 2009) (stating that a company may not shield itself from discovery
due to its own record keeping and ordering defendant to re-link emails with attachments); see also In re
Myford Touch Consumer Litig., No. 13-CV-03072-EMC, 2016 WL 7734558, at *8 (N.D. Cal. Sept. 14,
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that have not made linking of emails and their hyperlinked documents
available, third-party tools have been developed to fill that gap.
58
For instance, Metaspike’s FEC hyperlink capabilities are designed to
work for the Google Workspace. Like with any tool, there are limitations.
For instance, FEC currently only connects emails, calendar items, and
chats with hyperlinked documents and not documents hyperlinked within
other documents and does not collect information only available from
Google Vault’s “legal hold” environment.
59
Even when best efforts are
used, there are circumstances under which not every relevant hyperlinked
document will be collected in this manner, but it does more than Google’s
system presently permits. While parties in civil litigation may dismiss the
idea of using a third-party tool to assist with ESI collection, most parties
already pay third-party vendors for electronic discovery assistance,
collection, processing, and storage during the (sometimes lengthy) life of
a lawsuit. Surely, parties cannot be absolved from discovery obligations
because they require the assistance of a vendor or an affordable discovery
tool.
F. In Some Instances, Courts Have Ordered
Parties to Collect and Produce Hyperlinked
Documents Similar to Attachments
Nichols was not the first nor the last decision regarding hyperlinks.
Courts have ordered parties to collect and produce hyperlinked
documents along with their parent emails.
60
For example, in IQVIA, Inc.
2016), on reconsideration in part, No. 13-CV-03072-EMC, 2016 WL 6873453 (N.D. Cal. Nov. 22, 2016)
(finding that “[i]f [defendant] failed to maintain proper records, this should not be held against Plaintiffs”);
Mizner Grand Condo. Ass’n, Inc. v. Travelers Prop. Cas. Co. of Am., 270 F.R.D. 698, 700 (S.D. Fla.
2010) (“[W]hen a party produces documents as they are kept in the ordinary course of business, if the
business record-keeping system used by the producing party ‘is so deficient as to undermine the usefulness
of production,’ that party may not have met its obligations under Rule 34.” (citation omitted) (quoting
Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 n.2 (N.D.N.Y. 2008))).
58
. See supra note 37. Similarly, Slack, a messaging application for businesses, allows enterprise
third-party Discovery APIs (an acronym for application programming interfaces) to export files shared on
the platform through approved discovery partners. See A Guide to Slack’s Discovery APIs, SLACK HELP
CTR., https://slack.com/help/articles/360002079527-A-guide-to-Slacks-Discovery-APIs (last visited
Aug. 26, 2023).
59
. See In re Uber Techs., Inc. Passenger Sexual Assault Litig., No. 23-md-03084-CRB (LJC),
WL 1772832, at *2 (N.D. Cal. Apr. 23, 2024) (“Metaspike’s Forensic Email Collector (FEC) program
can retrieve active Google Email and contemporaneous versions of linked Google Drive documents, but
it does not have the ability to do the same with Google Email and Drive documents archived using Google
Vault.”). Google Vault “is an information governance and eDiscovery tool for Google Workspace” that
gives organizations the ability to “retain, hold, search, and export users’ Google Workspace data[,]”
including Gmail messages, Google Drive files, Google Calendar events, and Google Chat messages.
About Google Vault, GOOGLE, https://support.google.com/vault/answer/2462365?hl=en (last visited Apr.
23, 2024).
60
. In re StubHub Refund Litigation, 2023 WL 3092972, at *2 (ordering defendant to produce
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v. Veeva Systems, Inc.,
61
a special master rejected the defendant’s
argument that the law did not require the defendant to produce documents
linked to produced emails because the Google Drive documents were not
stored with emails in the ordinary course of business. The special master
held that the producing party was in the best position to link the
documents and was “not convinced that relinking these 2,200 documents
[was] unduly burdensome in light of the issues at stake in this matter, the
resources of the parties, and the amount in controversy.”
62
Some courts have recognized the receiving party’s need for the linked
documents but also the need to balance the burdens placed upon the
producing party. For instance, in Shenwick v. Twitter, Inc., the court was
“mindful of the burdens to Defendants,” but also “note[d] that Plaintiffs
have a right to determine if an electronic message refers to a
document[.]”
63
As such, the court concluded that “Plaintiffs should be
able to access that document” and ordered the defendants to produce
documents referenced in hyperlinks for 200 documents of the plaintiffs’
choosing.
64
Importantly, the forensic collection software the plaintiffs in
Nichols implored defendants to use to collect hyperlinked documents
along with emails was not available when Shenwick was decided in 2018..
Some courts have recognized the advances in technology and required
a more rigorous inquiry into whether the current technological
capabilities allow for a comprehensive collection of hyperlinked
documents. In In re Uber Technologies, Inc., Passenger Sexual Assault
Litigation, the court required the defendant to conduct a detailed
investigation
65
as to whether there was a viable option for collecting the
hyperlinked documents because “[p]laintiffs have a bunch of emails and a bunch of documents, but they
can’t tell what document was linked to what email”); Civil Minutes Order at 1, Klein v. Meta Platforms,
Inc., No. 320-cv-08570-JD (N.D. Cal. Aug. 11, 2022), ECF No. 334 (ordering defendant to produce
hyperlinked documents requested by plaintiffs); Shenwick v. Twitter, Inc., No. 16-cv-05314-JST (SK),
2018 WL 5735176, at *1 (N.D. Cal. Sept. 17, 2018) (“Defendants must produce documents referenced in
a hyperlink for 200 documents that Plaintiffs choose.”); Steel Supplements, Inc. v. Blitz NV, LLC, No.
8:22-CV-444-WJF-CPT, 2022 WL 3646137, at *2 (M.D. Fla. Mar. 23, 2022) (ordering third party to
“search its SharePoint, emails, repositories, and Outlook Exchange server, and any other place such as
drives or drop-box type locations, and produce any responsive documents that the US-based employees
could or did access, such as hyperlinks, email attachments, or any responsive documents that were in their
custody or control or viewable to them as Ignite US employees, wherever the ultimate server is sited”);
Stitch Editing Ltd. v. TikTok, Inc., No. CV 21-06636-SB (SKx), 2022 WL 17363054, at *1 (C.D. Cal.
Aug. 31, 2022) (“Documents referenced in hyperlinks from all productions—existing and future—must
be produced together with the source document containing the hyperlinks so that the association between
parent document and hyperlinked document is maintained.”).
61
. IQVIA, Inc. v. Veeva Sys., Inc., No. 2:17-CV-00177-CCC-MF, 2019 WL 3069203 (D.N.J.
July 11, 2019).
62
. Id. at *5.
63
. Shenwick, 2018 WL 5735176, at *1.
64
. Id.
65
. Contrast this with other courts who have more eagerly accepted the producing party’s
overbroad representations regarding the technological infeasibility of collecting and producing
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version of the hyperlinked document that existed at the time the email was
sent, rather than only collecting the version that existed at the time of
collection.
66
Based on the evidence presented from this “exhaustive
investigation,”
67
the court ultimately ordered Uber to “produce, to the
extent feasible on an automated, scalable basis with existing technology,
the contemporaneous document version i.e., the document version likely
present at the time an email or message was sent,”
68
which would likely
require the use of FEC for the emails and documents available on Uber’s
active systems. For documents that were archived and only available on
Google Vault, the court required defendants to produce the emails and
cloud-based documents with metadata (including, if necessary, as custom
fields) showing the relationship between email messages with links and
the document hyperlinked within the message or email, essentially
allowing the receiving party to match up the communication with the
hyperlinked document.
69
For the documents only available on Google
Vault, the court stopped short of requiring the production of the version
of the document that existed at the time the email was sent due to Uber’s
sufficient showing of the technical infeasibility of doing so.
70
However,
the court allowed plaintiffs to identify up to 200 hyperlinks for Google
Vault documents when they sought the version of the document that
existed at the time the email was sent, with an option for plaintiffs to
request more.
71
The court also required Uber to identify which
hyperlinked documents were missing from the production and which
documents produced were the non-contemporaneous versions.
72
Finally,
the court adopted plaintiffs’ definition of an “attachment,” which included
“modern attachments, pointers, internal or non-public documents linked,
hyperlinked, stubbed or otherwise pointed to within or as part of other
ESI” as a default but did not obligate the production of contemporaneous
versions of documents “if no existing technology makes it feasible to do
hyperlinked documents over evidence presented by requesting parties, which can significantly impact the
resulting order. See, e.g., In re Soc. Media Adolescent Addiction/Personal Injury Prods. Liab. Litig., No.
22-md-03047-YGR (PHK), 2024 WL 1786293, at *8 (N.D. Cal. Feb. 20, 2014) (“Plaintiffs’ proposal
assumes all or most of the Defendants use Google or Microsoft tools, and further assumes that there exist
various capabilities of Google and Microsoft tools which, at the DMC, were admitted to be based on
certain reading of documentation about those tools and not based on actual knowledge as to their
capabilities.”).
66
. In re Uber Techs., Inc. Passenger Sexual Assault Litig., No. 23-md-03084-CRB (LJC), WL
1772832, at *3 (N.D. Cal. Apr. 23, 2024).
67
. Id.
68
. Id. at *4.
69
. Id.
70
. Id.; see also infra Section III.
71
. In re Uber Techs., Inc. Passenger Sexual Assault Litig., 2024 WL 1772832, at *4.
72
. Id. at *6.
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so.”
73
This type of exacting approach by the court, which required a
thorough investigation by the producing party, is what is necessary in
order to make fair decisions that balance the receiving party’s right to
relevant information and the technological feasibility to provide such
information.
G. Google’s Inconsistent Approach
to Hyperlinks
What is troubling is the trend of recent decisions where courts blindly
follow Nichols by still accepting the producing parties’ burden arguments
without reassessing the validity of those assertions or how they align with
current technology and common practice. For instance, in a consumer
privacy case against Google, Google advanced the argument that the
plaintiffs’ request for hyperlinked documents, or the Bates numbers for
those documents,
74
would create an “impossible burden” and that Google
had “no automated means to collect a linked document” because such a
hyperlinked document “is not maintained within the file and could be
stored anywhere.”
75
In making this argument, Google ignored the
existence and potential use of the FEC tool advocated for by plaintiffs in
the Nichols case, which clearly has this capability. Google also ignored
the method of linking parent emails with hyperlinked documents that it
itself had used in other cases.
Indeed, nine months before Google made this argument in In re Google
RTB Consumer Privacy Litigation, Google represented to the federal
government in an antitrust case that:
Google will conduct an automated search to identify all links within emails
that are linked to shared G Suite documents (Google Docs, Google Sheets,
and Google Slides). . . . For each link identified, Google will conduct an
automated search for the document corresponding with the link. . . . Google
will process and produce the documents corresponding with the email links
as though they were separate documents. . . . [B]oth the parent document
and linked-to document would be produced with sufficient metadata to tie
the documents together.
76
73
. Id.
74
. A Bates number is a “unique numeric or alphanumeric identifier attached to individual
documents and pages to make each document and page easily identifiable and retrievable.” Bates Number,
PRACTICAL LAW GLOSSARY, Westlaw 8-509-9148. For example, if ACME Corp. produces 25,000 pages
to an opposing party in discovery, it may apply the Bates number “AMCE _000001 - AMCE_025000” to
the production.
75
. Joint Discovery Dispute Letter at 7, In re Google RTB Consumer Privacy Litig., (N.D. Cal.
Oct. 19, 2021) (No. 4:21-cv-02155), ECF No. 95.
76
. Joint Status Report at 8 n.4, United States v. Google LLC, No. 1:20-cv-03010-APM (D.D.C.
June 16, 2022), ECF No. 361; see also Order Regarding Discovery Procedure at 23-24, In re Google
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Based on Google’s representations in United States v. Google LLC, the
plaintiffs’ request for Bates numbers for Google Workspace documents
hyperlinked in Google emails in In re Google RTB Consumer Privacy
Litigation was certainly not an “impossible burden,” nor was it accurate
that Google had “no automated means” to do so.
77
However, the court in
In re Google RTB Consumer Privacy Litigation did “not require any party
to include a metadata field for ‘linked items’ that contains [sic]
information identifying, by Bates number, the documents associated with
hyperlinks within a produced document. Google represents that it is not
technically feasible to provide this information on a production-wide
basis[;]” further the court only suggested that “parties should consider
reasonable requests for production of hyperlinked documents on a case-
by-case basis.”
78
If one were to just look at the representations by the producing party in
this case and at the prior case law, this would seem to be a reasoned and
measured approach. However, this would be based on faulty assumptions
advanced by the producing party.
79
Specifically, Google could have made
good faith efforts to achieve what the plaintiffs were requesting simply
by using third-party forensic collection tools or by following the same
exact method it had used previously in United States v. Google LLC.
The approach Google took in United States v. Google LLC to “conduct
an automated search for the document corresponding with the link” and
produce “both the parent document and linked-to document . . . with
sufficient metadata to tie the documents together,”
80
is an option for those
parties who are unwilling or unable to use FEC.
81
However, this approach
Digit. Advert. Antitrust Litig., No. 1:21-md-03010-PKC (S.D.N.Y. Mar. 17, 2023), ECF No. 508 (“[T]he
producing party shall conduct an automated search across all emails to be produced. . . . [T]o identify any
emails that contain links to another document and will conduct a reasonable search for the document
corresponding with each identified link. . . . For documents produced pursuant to this Appendix J, the
producing party shall produce DOC LINK metadata[.]”).
77
. Joint Discovery Dispute Letter, supra note 75, at 7.
78
. Order Re Discovery Dispute Re ESI Protocol at 5, In re Google RTB Consumer Privacy Litig.,
No. 4:21-cv-02155 (N.D. Cal. Nov. 4, 2021), ECF No. 116.
79
. This case also demonstrates the problems with allowing only limited requests for hyperlinked
documents. Later in the same case, the requesting party made a request for hyperlinks referenced in fifty-
one documents that were all deposition exhibits. Joint Discovery Letter Brief at 1, In re Google RTB
Consumer Privacy Litig., No. 4:21-cv-02155-YGR (N.D. Cal. Mar. 27, 2023), ECF No. 464. Google
opposed this request and the requesting party had to seek relief from the court. See Order Re March 27,
2023 Discovery Dispute Re Hyperlinked Documents at 2, In re Google RTB Consumer Privacy Litig.,
No. 4:21-cv-02155-YGR (N.D. Cal. Apr. 21, 2023), ECF No. 490 (Google’s objections to minimal
requests for hyperlinked documents overruled, and Google ordered to produce documents corresponding
to the hyperlinks found within fifty-one documents).
80
. See Joint Status Report, supra note 76, at 8 n.4.
81
. Currently, FEC is only able to collect hyperlinked documents referenced in emails within the
Google Workspace, and not within other documents, and cannot collect hyperlinks in emails that were
deleted by the user and only available within the Google Vault “legal hold” environment. Approaches
similar to Google’s hybrid approach could potentially be used for non-Google specific documents as well,
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is not without its drawbacks. In United States v. Google LLC and In re
Google Digital Advertising Antitrust Litigation, Google limited the
universe of its automated approach to only those emails that hit on search
terms and that are found to be responsive, independent, and without the
context of the hyperlinked document.
82
This is not in line with the
traditional approach to attachments imposed by the Federal Rules of Civil
Procedure, in which the entire family of documents is reviewed
comprehensively, and if any document in the family is relevant, the whole
family is produced.
83
Using Google’s hybrid approach means that if the substance of an
email itself is rather innocuous without the context of the document (e.g.,
an email simply says, “take a look at this document” or has no text in the
body at all), then neither the email nor the hyperlinked document would
be produced. This would mean that, even if the hyperlinked document
was independently produced, the receiving party would never know to
when that document was emailed or by whom, nor would the receiving
party have the context of any potential commentary in the email, which
can be of great importance in deposition and at trial. Ideally, the linking
of emails and their hyperlinked documents should be done prior to
running search terms or conducting a review in order to provide the
appropriate context for relevance determinations and should include the
version of the document that existed at the time the email with the
hyperlink was sent. Also, the hyperlinked document would likely be the
document as it exists at the time of collection, and not the document as it
existed the time the email was sent. Google’s approach, although far
superior to not receiving any hyperlinked documents, does not seem
appropriate when a reliable tool that would avoid these issues currently
exists—and works in a Google-created system.
so long as there is a unique identifier available. Electronic discovery vendors are often capable of
developing scripts to meet client needs. See, e.g., Epiq Chat Connector, EPIQ,
https://www.epiqglobal.com/en-us/technologies/legal-solutions/chat-connector (last visited Sept. 1,
2023); In re Uber Techs., Inc., Passenger Sexual Assault Litig., No. 23-md-03084-CRB (LJC), WL
1772832, at *2 (N.D. Cal. Apr. 23, 2024) (“Uber’s e-discovery vendor, Lighthouse, has developed a tool,
Google Parser, that extracts specific links to Google Drive documents from email and chat messages and
certain metadata. Google Parser facilitates the grouping together of a message and a document stored in
Google Drive for purposes of review and production, and it contains certain metadata fields relevant to
search, review, and production of messages. However, there is no evidence that this technology, which is
an extraction tool, has been refined and deployed to collect contemporaneous versions of hyperlinked
documents archived with Google Vault.”).
82
. Joint Status Report, supra note 76, at 8 n.4; Order Regarding Discovery Procedure, supra note
76, at 23-24.
83
. See supra note 17.
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III. GOOGLE’S RELUCTANT EVOLUTION
In December 2023, Google Vault finally added the ability for
administrators to export hyperlinked documents stored in Google Drive
when they export email messages.
84
However, this feature does come with
limitations. For instance, legal holds over email do not extend to
hyperlinked documents and, if search terms are used for export purposes,
the search does not extend to a search of the hyperlinked documents.
85
In
addition, although not explicitly stated, the hyperlinked document that is
exported is the document that exists at the time of collection rather than
the specific version that existed at the time the email was sent.
86
However,
it is possible to identify the version of the hyperlinked document that
existed at the time the email was sent, albeit through a more manual
process.
87
Due to this limitation, the FEC tool is likely a better collection
tool than Google’s until Google Vault’s functionality further evolves.
IV. EVIDENTIARY HURDLES PRESENTED
BY LIVE DOCUMENTS
Similarly to Google Vault’s, Microsoft 365’s Purview eDiscovery
(Premium) hyperlinked cloud attachment collection features, which
collects Microsoft 365 emails along with their hyperlinked attachments
from OneDrive and other Microsoft repositories, still rely heavily on
collecting the hyperlinked attachment as it exists at the time of collection
versus the document as it existed at the time the email was sent.
88
Relying
solely on this version may present evidentiary hurdles if one seeks to use
84
. Doug Austin, Admins in Google Vault Can Now Export Hyperlinked Google Drive Content
from Gmails: eDiscovery Trends, EDISCOVERY TODAY (Dec. 13, 2023),
https://ediscoverytoday.com/2023/12/13/admins-in-google-vault-can-now-export-hyperlinked-google-
drive-content-from-gmails-ediscovery-trends/; Google Workspace Updates, GOOGLEBLOG (Dec. 5,
2023), https://workspaceupdates.googleblog.com/2023/12/google-vault-export-hyperlinked-drive-
content-from-gmail-messages.html (“Starting December 8, 2023, admins can export Drive files
hyperlinked in Gmail messages directly in Google Vault. . . . If Drive hyperlinks are found, a separate
export of Drive files will also be created. . . . Vault admins can find the association between the Gmail
export and Drive link export in the export file names and metadata.”).
85
. This creates the same issue with search terms as discussed in the prior paragraph.
86
. In re Uber Techs., Inc., Passenger Sexual Assault Litig., 2024 WL 1772832, at *1 (“[W]hen a
hyperlinked Google Drive document is exported from Google Vault, the current version of that document
is exported. If a Google Drive document archived using Google Vault was edited after the email with the
hyperlink to the document was sent, then the Google Vault export will not reflect the version of the
document that existed at the time of the email.”).
87
. Id. (“For data archived using Google Vault, and no longer in the active Google Workspace,
there is a manual process in place to identify a historic version of a hyperlinked Google Drive document
contemporaneous with the email communication.”).
88
. Craig Ball, Cloud Attachments: Versions and Purview, CRAIGBALL.NET (Apr. 8, 2024),
https://craigball.net/2024/04/08/cloud-attachments-versions-and-purview/ (last visited May 5, 2024)
(“Microsoft Purview collects cloud attachments as they exist at the time of collection . . . .”).
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both the email and the hyperlinked document as a family unit in a
deposition. However, producing the version of the document as it exists
at the time of the collection provides the context necessary to
meaningfully assess the substance of the cloud attachment. This way, the
receiving party can determine which “point-in-time” versions are likely
important enough to request the producing party investigate whether an
earlier version of those cloud attachments exists and should be produced.
As the In re Uber Technologies, Inc. Passenger Sexual Assault Litigation
order recognized,
[C]ontemporaneous 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. Thus, important evidence bearing on claims and defenses may
be at stake, but the ESI containing that evidence is not readily available for
production in the same manner that traditional email attachments could be
produced.
89
Even if the “point-in-time” or “contemporaneous” version of the
document no longer exists, the fact that a document may have been edited
after an email was sent could be made clear during a deposition or in court
briefing, along with the fact that the producing party has represented that
the “point-in-time” version no longer exists. Alternatively, a party may
still use the document in its own right without the transmittal parent email.
Although priority should be placed on collecting and producing the
version of the hyperlinked document at the time the email was sent, if that
is not possible or reasonably feasible, then perfect should not be the
enemy of good.
V. A WORKABLE PATH FORWARD
To the extent that there are automated methods to collect and produce
emails and their hyperlinked documents in a manner that allows the
receiving party to understand which emails hyperlink to which
documents, those methods should be used. Although Microsoft’s Purview
eDiscovery (Premium) and FEC are reliable methods for collecting
hyperlinked documents in order to produce documents in a manner
consistent with Rule 34’s mandates, there are limitations. The hybrid
approach used by Google, or similar approaches developed by electronic
discovery vendors, are also viable options. These methods may not be
perfect, but producing parties should be expected to make their best good
faith efforts. Unfortunately, some parties merely cite to Nichols and only
89
. In re Uber Techs., Inc., Passenger Sexual Assault Litig., 2024 WL 1772832, at *2.
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agree to take an opposing party’s request for hyperlinked documents on
an ad hoc, case-by-case basis,
90
despite the producing party’s ability to
use more automated approaches. This is not a workable solution. This ad
hoc approach can lead to unnecessary and resource-draining discovery
disputes and is highly prejudicial to litigating parties.
91
However, there
are circumstances in which creating a more curated list of hyperlinks for
production may still make sense. This may be the case when companies
do not use a primary enterprise solution such as Google Workspace or
Microsoft 365, when companies use hyperlinks sparingly, when
employees hyperlink to multitudes of external sites of their personal
choosing (each of which require permissions access from various
individual users who may or may not still be employed by the company),
or when the company truly has no automated approach available for
collection and production with a family relationship. And under other
circumstances, the principles of proportionality may require that
collection, review, and production of hyperlinked documents be done on
a case-by-case basis. There will also be documents that will be exceptions
to the available technologies and that have not been captured in an
automated fashion, despite the producing party’s best efforts. These
documents may also require the case-by-case approach. If courts require
that parties fully investigate their technological options and capabilities,
and if the parties actively address issues surrounding the collection and
production of hyperlinked documents during a Rule 26(f) conference and
continue to work cooperatively throughout the discovery process, many
future disputes on this issue can be avoided.
CONCLUSION
By and large, approaching hyperlinked documents differently than
traditional attachments is inconsistent with current technology and
contravenes the Federal Rules of Civil Procedure’s requirements
regarding the production of documents in civil discovery. To use
hyperlinks in lieu of attachments is no longer a new practice, and the
methods of storing and sharing information have evolved and continue to
evolve. As the electronic discovery process evolves with it, so, too, should
the law.
90
. See, e.g., Defendant Shopify Inc.’s Memorandum in Opposition to Plaintiffs’ Third Motion to
Compel at 7-8, 11, Bedford, Freeman & Worth Publ’g Grp., LLC v. Shopify Inc., No. 1:21-cv-01340-
CMH (E.D. Va. May 25, 2022) (citing Nichols to oppose production of hyperlinked documents and
explaining that, when “Plaintiffs raised their concerns regarding the hyperlinked documents and identified
specific links they believed to be relevant, Shopify agreed to respond by explaining which of those
documents would or would not be produced.”) (emphasis in original).
91
. See supra note 79.
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