E-DISCOVERY
Linked Content Strains E-Discovery Workflows By TIM ANDERSON AND RYAN GAUDET
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n March 2021, a U.S. district court judge made a significant ruling regarding the definition of hyperlinked content and the requirement to produce it in the context of other electronically stored information. In short, the judge determined, contrary to plaintiff’s arguments, that hyperlinked documents within emails, chat applications and cloud drives are not considered attachments. While this ruling was definitive and consistent with popular opinion in the e-discovery arena, it emphasized the uncertainty that is persistent among legal teams today regarding how uncommon data sources interact
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with traditional e-discovery workflows and requirements. Non-traditional, nuanced and emerging electronically stored information (ESI) is seemingly endless. And while legal teams are barely keeping up with the pace of questions about discoverability and the collection challenges associated with collaboration, short-form and cloud-based data, they must also contend with an increasing range of review and production obstacles. Hyperlinked content is one of these “next-level” issues that we’re starting to see, and around which teams are likely to face, several complex legal and technical issues.
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Even with the recent ruling that hyperlinked documents do not qualify as attachments, expect an ongoing debate. Not everyone agrees about what constitutes an attachment. One school of thought suggests that if a file is linked in a message, it is an attachment and therefore should be included in the pool of data that is collected and reviewed in relation to the relevant message. However, links don’t operate the same way attachments do. Not every recipient has access, or the same type of access, and linked content is not static. Variations and new versions are being created all the time. Sometimes a shared link is BACK TO CONTENTS
