Hyperlinked documents might be used like attachments, but this court isn’t ready to call them part of the family
The team at Hanzo is always trying to stay ahead of the curve of our clients’ needs. We’re constantly asking what new type of electronically stored information (ESI) parties will need to preserve, collect, and review for ediscovery and what challenges that ESI will pose. A while back, we identified files in Google Drive as one of the next ediscovery conundrums. Fortunately, we had already developed the capability—based in part on over a decade of experience archiving websites and following links for regulatory compliance clients—for what we call “follow the link” collections.
Now we’re starting to see courts ruling on how parties should handle files in Google Drive. Are linked files “attachments” to an email if they’re not actually exported and attached but are instead provided exclusively via hyperlink? That’s the question the court addressed in Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (S.D.N.Y. Mar. 11, 2021). There, Magistrate Judge Katherine H. Parker denied the plaintiffs’ motion for reconsideration and clarified that, in her view, hyperlinked documents are not attachments. The distinction she drew in reaching that conclusion, however, might turn out to be rapidly outdated.
Here’s what happened.
The Ediscovery Dispute in Nichols: Are Hyperlinked Documents “Attachments”?
This class action, alleging state law violations as well as common law fraud and unjust enrichment, involves what the plaintiffs refer to as a “deceptive and illegal automatic renewal scheme” for Noom’s weight-loss service. At the outset of discovery, the parties agreed to an ESI protocol that included Noom’s use of Google Vault to collect content from its Google Drive and from Gmail.
The plaintiffs soon determined that “Noom employees frequently link to internal documents in lieu of attachments to emails or other documents.” In other words, rather than downloading a document that exists in Google Drive and attaching a copy of it to an email, Noom employees would just provide a hyperlink to the current version of that document. This was problematic, the plaintiffs argued, because they wouldn’t receive “family” designations as they would for traditional email attachments: metadata that would associate specific hyperlinked documents with the emails referring to them. Therefore, the plaintiffs asked the court to require Noom to use a specific vendor to re-collect both Google Drive and Gmail “so that any hyperlinked documents are also pulled as part of the document ‘family.’”
Noom opposed this request on the grounds that “hyperlinks are not attachments.” It further stated that it was producing all of the linked documents and pointed out that the court had already ordered it to provide any linked documents that the plaintiffs could not locate. Noom argued that a re-collection would delay discovery and that its estimated $180,000 price tag would be disproportional to the case.
The Court’s Ruling: A Distinction Without a Difference?
The court ruled that hyperlinked documents are not the same as attachments. In the court’s view, an attachment to an email is “a necessary part of the communication.” A hyperlinked document, on the other hand, “may or may not be necessary” or even important to the communication. The court then pointed to several examples where hyperlinks would not be an essential portion of the communication: hyperlinks to cited cases in a legal memorandum, to other portions of a document as in a table of contents, or to contact information. In all these cases, the court noted, the “underlying hyperlinked documents may be unimportant to the communication.”
The court concluded that, as hyperlinked documents were not the same as attachments, family designations were unimportant. It ruled that the existing process—where the plaintiffs could request any hyperlinked documents that they could not locate in the corpus—would be appropriate for any disputes that may arise. The court also noted that this process would avoid what it viewed as the unnecessary costs and delays that would be associated with a re-collection of Noom’s Google Drive documents.
Personally, I believe that the court took a view of “attachments” that was too literal and restrictive—and there are two phrases in the court opinion that make my point for me.
First, the court acknowledged that the dispute “raise[s] complex questions about what constitutes reasonable search and collection methods in 2021—when older forms of communicating via emails and documents with attachments … are replaced by emails and documents containing hyperlinks to other documents.” Here, the court admits that attachments are being replaced by hyperlinks. If that’s the case, then the court’s distinction between attachments and hyperlinks—at least in this context—is outdated. If hyperlinks are replacing attachments, there’s no functional difference in them.
Second, the court restated the plaintiffs’ position in a way that belied its own conclusion, noting that “Noom employees frequently link to internal documents in lieu of attachments to emails or other documents.” If hyperlinks are being used “in lieu of” attachments, then they’re not being used any differently from attachments and they should not—again, in my opinion—be treated differently during ediscovery.
I expect that “modern attachments”—where correspondents share hyperlinks to documents and other content that are accessible in the cloud rather than attaching a single version of that content to an email message—will soon be considered best practice. More importantly, I expect that it won’t be long before our current understanding of “attachments” will be an anachronism akin to the concept of “hanging up the phone.” As email is phased out of professional communications and collaborative text-messaging platforms are phased in, I expect we’ll see far more hyperlinks and far fewer actual traditional “attachments.” While this is an evolving area of the law, I anticipate that future courts and future opinions will reach a different conclusion.
Whatever the future holds, Hanzo will be here to help organizations navigate these types of issues.