One of the most important emerging questions in e-discovery concerns how courts should treat emails containing hyperlinks that reference other documents.

Should such emails be produced with a familial relationship, akin to traditional emails and their attachments?

While this issue is far from settled, a recent ruling out of the Southern District of New York, Nichols v. Noom, 20-cv-3677, 2021 WL, provides useful guidance.

Specifically, the Noom decision holds that:

1) Attorneys should proactively address the treatment of hyperlinks in their ESI protocol.

2) In the event that a dispute regarding this issue arises, the outcome should be determined by looking at the parties’ respective burdens.

Attachments vs. Hyperlinks

First, what are hyperlinks, and how are they different from—or the same as—traditional attachments?

With traditional emails and attachments, the familial relationship is clear: there is a parent email and a child attachment. The two exist in a single container. Both pieces of information represent an unchanging snapshot in time. Both the email and attachments will be received in exactly the same condition as they were saved and sent.

Hyperlinks (or “Modern Attachments” in the Microsoft ecosphere), on the other hand, are digital references to files that are stored in a location separate from the email, as opposed to in the email itself. This makes hyperlinks different from traditional attachments because the underlying documents are not snapshots in time. Instead, they are works in progress that can be altered, moved, or deleted at their source. Thus, the content of the file referenced in a hyperlink may be materially different from the content of that same file at the time the underlying email was sent.

The Noom Decision

Nichols v. Noom addressed the fundamental nature of emails containing hyperlinks:

• Should they be treated the same as emails with attachments?
• Should the familial relationship be maintained during collection and processing and “child” hyperlinks produced sequentially after their “parents”?
• Is it sufficient to produce relevant emails and documents separately, as they are found in the organization’s systems at the time of collection?

Plaintiffs sought “clarification” or reconsideration of the Magistrate’s orders regarding Defendant Noom’s production of documents. Noom used Gmail for its communications and stored its documents on Google Drive. Employees were in the habit of sending Gmail communications with embedded hyperlinks that pointed to those documents. Such emails, and the documents referenced in their embedded hyperlinks, were not linked as familial documents in Noom’s document collection.

The Magistrate ordered that Noom could use Google Vault to collect its emails, but that if the Plaintiffs identified any hyperlinked documents that they could not find in the Google Drive collection, they would be permitted to raise that issue with Noom. Noom would then produce or identify the document.

Plaintiffs argued that, “hyperlinks are akin to attachments” and should be produced with their parent emails as families. They asked that the Court require Noom to either use a specific forensic collection device or create a new computer program to produce hyperlinked documents as attachments.

Noom took the position that hyperlinked documents are not the same as attachments. It argued that it was already producing the referenced hyperlinked documents through its collection of organizational and custodial documents. It also argued that it should be permitted to choose its own method of collections rather than take on the added burden of making a redundant production simply to meet the Defendant’s demand of re-producing documents with familial relationships. Further, it put forth evidence that the cost of using the Plaintiff’s preferred forensic tool would be almost $180,000, which it argued was not proportional to the needs of the case.

Disagreeing with the Plaintiffs that a hyperlinked document is an attachment, and finding that they did not actually need all of the hyperlinked documents in any event, the Court held in support of the Defendants’ chosen method of collection. Critically, the parties’ ESI stipulation addressed classic email attachments, but was silent on the issue of emails containing hyperlinks.

With no meeting of the minds between the parties, and Gmail and Google Drive data (which included all relevant hyperlinked documents) already collected, the Court reached a ruling that accounted for proportionality, cost, and delay. It determined that hyperlinks are not equivalent to attachments and stood by the Magistrate Judge’s ruling that the Defendant did not need to re-collect data with familial attachments in place. It could instead provide information about those relationships in response to the Plaintiff’s specific requests.

So What Should Attorneys Do About Hyperlinks?

Noom notwithstanding, there is no real consensus as to whether it is standard to maintain familial relationships between emails and hyperlinked documents. This decision shows us that courts will not automatically treat hyperlinks like classic attachments. As a result, there are two main takeaways for attorneys:

1) If an attorney wants to maintain the “family” relationship of the hyperlink to the email, he or she will need to specifically draft the ESI protocol to account for the nature of hyperlinks. Absent clear discussion and negotiation, there is at least a reasonable chance that a court will decide to the contrary. Thus, it is critical that attorneys understand the nature of their clients’ and opponents’ email data prior to negotiating the ESI protocol.

2) This ruling suggests that, in the event of a dispute about the collection of hyperlinked documents, courts will be inclined to fashion a solution that takes into account factors of proportionality, cost, and delay. The Noom court did just that in eschewing Plaintiff’s demand for costly and time-consuming technical solutions to connect emails with their embedded hyperlinks. This especially makes sense where most embedded documents are not important to the plaintiffs’ claims or defenses anyway. In keeping with the proportionality requirement of FRCP 26(b), it appears unlikely that a court will require a litigant to incur significant expense or delay to meet their opponent’s preferred method of production, especially where time and money has already been expended in the endeavor.

Attorneys and courts will have to modify their conception of discoverable communications as technology continues to evolve and expand. The best-prepared attorneys will have thought through the issue at the earliest possible point, and enter discovery negotiations with a plan in place.

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