Blowing Things Out of Proportion: S.D.N.Y. Finds Hyperlinked Documents Are Not Necessarily Attachments and Rejects a Revamping of Production Protocols
The Southern District of New York recently held that hyperlinked documents should not necessarily be considered “attachments” and declined to require a responding party to utilize a collection tool proposed by the requesting party, which would have collected all hyperlinked documents and maintained their familial relationship with the parent document. This is a novel and important issue that has not received such thorough treatment by other courts. With the COVID-19 pandemic forcing many employees to work from home and increasing the use of cloud-storage apps for documents, the issues related to the treatment of hyperlinked documents and litigants’ obligations in collecting and producing these documents are unlikely to disappear anytime soon.
In Nichols v. Noom Inc., the plaintiffs initiated a class action suit against Noom for a litany of allegations centered around false advertising. Prior to commencing discovery, Noom agreed to collect and search relevant data from multiple Google App sources (i.e., Gmail, G-chat, Google Drive). The parties agreed to utilize Google Vault to collect the relevant documents from Google Drive, despite the fact that Google Vault would not be able to collect file path metadata for each document.
Additionally, the parties never agreed to the method of collection for emails stored on Gmail. While Noom wanted to use Google Vault to collect the relevant emails, the plaintiffs were concerned by the fact that Noom’s collection method would not pull documents hyperlinked within emails. The plaintiffs asked Noom to use instead an e-discovery forensic tool, Forensic Evidence Collector (FEC), which would allow Noom to collect the hyperlinked documents, so as to retain the familial relationship with the emails in which the hyperlinks were contained. Noom refused, and the parties sought guidance from the court. Noom balked, claiming that the process would cost in excess of $180,000 and was not necessary given Noom’s agreement to produce any linked documents requested. The plaintiffs pushed back with their own expert’s much lower estimate, but failed to include enough detail in their counterproposal for the court to fully evaluate their claimed cost estimate.
The court initially resolved this issue by allowing Noom to utilize its requested method, Google Vault, citing the oft-invoked Sedona Conference Principle 6, which states that the producing party is best situated to determine its search and collection methods. The court also noted the relative costs and delays that would occur should the parties utilize FEC and set forth a framework to guide the parties in the event of future disputes concerning these hyperlinked documents. The court provided, where certain hyperlinked documents could not be located or identified within Noom’s productions, the plaintiffs should raise the issue with Noom and Noom would be required to either identify the bates range of the hyperlinked document or produce the hyperlinked document in question. While the parties had negotiated an ESI protocol, they did not define “hyperlinked documents” as part of a “family group”; nor did they define the term “attachment.”
Following the original order, Noom utilized Google Vault to collect the documents from Google Drive and Gmail and produced these documents to the plaintiffs. As it turned out, the prevalence of hyperlinks in the produced documents was much greater than the plaintiffs had anticipated; there were thousands of documents that contained hyperlinks, with the plaintiffs having little to no ability to link these documents to their families. Therefore, in a letter to the court, the plaintiffs sought reconsideration of the court’s prior order. Further, the plaintiffs requested the court to reconsider: (1) Noom’s utilization of Google Vault to collect its Google Drive and Gmail documents, and (2) the court’s proposed method for resolving disputes concerning hyperlinked documents.
In its opinion denying the plaintiffs’ motion for reconsideration, the court first noted that it was clear there was “no meeting of the minds” in the ESI protocol as to whether hyperlinked documents were considered attachments and, as such, the ESI protocol could not be interpreted to treat hyperlinked documents as attachments. The court further reiterated that it did not consider hyperlinked documents to be equivalent to email or document attachments because they may not be “necessary” to the communication, whereas an email attachment is generally integral to the email correspondence. The court cited multiple examples of irrelevant hyperlinks to support its reasoning, such as hyperlinks that refer to another portion of the same document, hyperlinks that lead to a SharePoint folder, or hyperlinks in an email to a phone number, Facebook page, or a legal disclaimer.
In denying the motion, the court further relied on the principles of Fed. R. Civ. P. 1, 26, and 34. Attempting to foster efficiency in litigation, Fed. R. Civ. P. 1 mandates the court to ensure a “just, speedy, and inexpensive” trial, while Fed. R. Civ. P. 26(b)(1) works to limit discovery expense by requiring a party’s discovery requests to be proportional to the needs of the case. Fed. R. Civ. P. 34 requires a producing party to produce documents in “reasonably usable form” to prevent a requesting party from unreasonable difficulty or burden in utilizing the documents efficiently in the litigation.
Here, the court expressed proportionality concerns with the plaintiffs’ requests, because they failed to show any need for the hyperlinked documents or that these documents were relevant or material to the case. Further, citing Fed. R. Civ. P. 1, the court noted the unnecessary costs and delay that would result from the use of FEC to impose a redundant collection and review of the same Google Drive documents and emails already collected and reviewed by Noom. For example, the court hypothesized that email chains may contain multiple hyperlinks to the same document, resulting in that document being produced hundreds of times.
As the court stated, “[t]he issues raised by Plaintiffs raise complex questions about what constitutes reasonable search and collection methods in 2021.” Nichols highlights the ever-evolving challenge for litigants, the courts, and the Federal Rules of Civil Procedure to keep up with technological advancements affecting e-discovery. While the court dismissed hyperlinked documents as not necessarily vital to a communication under the specific circumstances (especially in the context of the specific ESI Protocol entered by the court), it seems very likely that another court faced with a different set of circumstances could just as easily find that hyperlinks do in fact relate to relevant documents. We believe this is especially likely as collaborative apps such as Google Apps and Microsoft Teams become more popular. Without a cost-effective solution to collect hyperlinked documents that also provides for metadata, the information gap between the requesting party and responding party will continue to grow in contravention to the purpose of the Federal Rules of Civil Procedure to create a level playing field between the litigants.
The key takeaway here is that, in a case that may involve significant hyperlinked references in the production set, parties must include a discussion of how these specific data sources will be treated in their Rule 26 meet and confer and address these issues in their discovery protocols. Parties need to keep in mind that courts are not prescient on all of the cutting-edge issues involved in modern discovery and will accept (and, as here, likely stand by) the parties’ initial agreements and recommendations regarding production protocols, particularly if costly changes are suggested after an initial production has occurred. That said, not every issue can be foreseen, so when new information is learned, proportionality considerations may shift. The parties and the court should be able to adapt to the changing needs of the case by modifying or amending the discovery plan and ESI protocol.