Extract from Brad Harris’s article “Case Law Summary: Are Hyperlinked Documents the Same as Attachments?”
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 The distinction she drew in reaching that conclusion, however, might turn out to be rapidly outdated.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.