Hyperlinked files within electronic communications pose three significant challenges in ediscovery that had been previously unanswered by a thorough judicial analysis: 1) whether a hyperlinked file is an “attachment” that must be produced as such, 2) whether the same version (contemporaneous) of the hyperlinked file or “attachment” sent can or is required to be produced with its corresponding message, and 3) the scope of a producing party’s obligation to provide hyperlinked files with metadata and version control.
A recent ruling by United States Magistrate Judge Lisa Cisneros in In re Uber Technologies, Inc. Passenger Sexual Assault Litigation marks the first time a Judge has clearly articulated the issues and addressed each based on the current state of technology to provide hyperlinked files in ediscovery. Judge Cisneros’ decision marks a crucial development in eDiscovery law by delving into the nuances of versioning and the classification of hyperlinked files as attachments, and offers a blueprint for managing these elements within electronic stored information (ESI) protocols.
Technical and Legal Challenges Explored
The core issue in In re Uber revolved around hyperlinked files in Google Drive linked through emails or other communications, but that are stored in Google Vault. Typically, if a document is edited post-hyperlinking, only the latest version is captured by Google Vault, not the version that existed when the hyperlink was created. This gap can lead to significant evidentiary challenges, particularly when the content of a document at a specific time is crucial, a fact that the Court noted in its opinion.
Judge Cisneros’s review highlighted the limitations of current technologies, including Metaspike’s Forensic Evidence Collector (FEC) and Google Parser, that allow for the collection of contemporaneous versions of documents stored in Google Drive, but acknowledged that neither of those proposed solutions work when documents are archived in Google Vault. Since Uber had chosen to store its documents in Google Vault, it was aware of those issues as a sophisticated litigant and had responsibility to provide contemporaneous versions of 200 documents, as well as metadata for all hyperlinked files that would allow the plaintiffs to review what was missing from the hyperlinked attachments.
The Court also found that hyperlinked files were attachments, and that under Rule 34, Uber had an obligation to produce them subject to the technological limitations that exist. To balance those limitations with the plaintiffs’ right to discovery, the Court allowed for an initial 200 versions to be provided, but for plaintiffs to meet and confer or come back to the Court for additional requests as necessary.
Court’s Analysis and Ruling
The court’s analysis was meticulous, balancing technological limitations against the legal imperatives of ediscovery. Here are the key aspects of Judge Cisneros’s ruling:
- Technological Limitations Acknowledged. The court recognized that no current technology offers a fully automated solution to link emails and their corresponding hyperlinked documents from Google Vault effectively. This acknowledgment sets a realistic expectation for legal teams when dealing with cloud-stored documents, but can also change as the technology improves to provide contemporaneous versioning.
- Manual Efforts Required. Given the lack of a suitable automated tool, the court noted that manual efforts would be necessary to ensure the proper collection and production of relevant documents. This places a significant burden on parties to manually review and match documents to their hyperlinks, a task that can be both time-consuming and prone to error. Here, the Court found Uber understood its obligation when it chose to store documents in Google Vault and crafted a baseline of 200 documents as a balance.
- Metadata and Document Relationship. The ruling also held that hyperlinked files are attachments, and emphasized the importance of providing metadata that links emails to their hyperlinked documents. This requirement aims to maintain the integrity of data relationships throughout the litigation process and put the parties on a level playing field by allowing the receiving party to have the parent-child relationship maintained for review.
Implications for Litigation Professionals
This decision has several implications for litigation professionals managing ediscovery in complex cases involving digital communications:
- Enhanced Understanding of eDiscovery Tools. Legal teams must become proficient in the capabilities and limitations of tools that leverage hyperlinked files that may be discoverable like Google Drive, Vault and MS Teams.
- Proactive Management of Digital Evidence. The ruling underscores the need for parties to understand the potential need to produce contemporaneous versions of documents and potentially take steps to be able to preserve and produce those versions in accordance with Rule 34 of the Federal Rules of Civil Procedure.
- Cooperation Among Counsel. The decision highlights the importance of cooperation among counsel to resolve complex ediscovery issues, including engaging in meaningful meet-and-confer sessions to discuss the handling of hyperlinked files and related metadata.
- Adaptation to Technological Advances. As ediscovery technologies evolve, legal teams must stay informed of new tools and methods that can aid in the more efficient handling of hyperlinked files and other digital evidence.
Key Takeaways
Judge Cisneros’s decision in In re Uber Technologies not only clarifies the handling of hyperlinked files in legal proceedings but also sets a precedent for how these issues should be approached in future cases. Key takeaways include:
- The importance of Knowledgeable eDiscovery Counsel: This decision came about because the Court identified the issues and sophisticated ediscovery counsel 1) put forth experts to educate the court on the scope of existing technology and 2) outlined the issues to the Court in a thoughtful and digestible fashion that articulated the issues with Uber’s existing technology and existing tools for collection of hyperlinked files.
- Collaborative Approach to eDiscovery.: Effective management of ediscovery requires a collaborative approach, with ongoing communication and agreement between parties on the best methods to handle complex data types.
- Necessity of Manual Review. Until technology advances, where contemporaneous versions of hyperlinked documents cannot be provided in an automated fashion, manual review will remain essential to ensure the accuracy and completeness of ediscovery involving hyperlinked files. Parties will need to prepare for the time necessary to do that work in responding to discovery requests.
- Importance of Detailed Metadata. Maintaining detailed metadata that accurately reflects the relationship between communications and hyperlinked documents is crucial for the integrity of the discovery process. This decision identified two custom metadata fields requested by plaintiffs that improved their ability to identify where hyperlinked files were not produced so they could evaluate the relevance and request additional files as needed.
Judge Cisnero’s decision here provides long awaited guidance on this issue consistent with parties’ obligations under the Federal Rules of Civil Procedure and the current technological capabilities. This ruling is a significant step forward in addressing the unique challenges posed by modern digital communication tools that house relevant information for ediscovery. It provides a well-reasoned framework that guides litigation professionals through the complexities of managing hyperlinked documents in eDiscovery and provides language for use in an ESI protocol. As the technology continues to evolve, such judicial guidance will be invaluable in helping parties to understand their obligations in producing data from platforms utilizing hyperlinked files.
She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at eDiscovery Assistant. As Principal at ESI Attorneys, Kelly manages the boutique eDiscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations, and municipalities on all areas of electronic information including eDiscovery, privacy, cybersecurity, and information governance.
Kelly is also the CEO of eDiscovery Assistant — a SaaS-based practical resource for litigators handling eDiscovery — that curates discovery decisions, rules, and additional content. She is developing an online academy to provide on-demand education for lawyers and legal support professionals to stay abreast of changes in the law and technology that affect litigation and clients’ obligations to respond.
You can reach Kelly at [email protected], join her Facebook community group at Let’s Talk eDiscovery, or connect with her on Twitter @kellytwigger.