Extract from Phil Favro’s article “New Cases Spotlight the Need to Right-Size “Family” Productions of Hyperlinked Documents”
The standards governing the production of electronic communications and their associated “families” have been undergoing a significant transformation over the past several years. In traditional discovery practice, the production of emails and attachments as a single unit—a document family—is generally a settled production practice with limited exceptions. However, with the advent of cloud-based collaboration and chat tools like Google Workspace and Microsoft 365, certain litigants have sought to expand this practice. This has led to disputes in civil lawsuits over whether documents from cloud-based repositories should be produced in families with emails and other electronic communications that have pointers or hyperlinks to those cloud-based documents. Courts have at times ordered producing parties to turn over hyperlinked documents in families. Nevertheless, courts have declined to find an equivalency between traditional attachments and hyperlinked documents. Nor have courts ordered producing parties to hand over every hyperlinked document in a family with accompanying emails, chats, or text messages. Instead, court production orders are typically limited in nature and circumspect about imposing broad and disproportionate burdens on producing parties. In certain instances, courts have simply declined to order family productions where requesting parties have not established the relevance and proportionality warranting such a production.
These trends showing judicial discretion on the issue of so-called family productions involving hyperlinked documents are reflected in two recent cases: United Association National Pension Fund v. Carvana Company and Yotta Technologies Inc. v. Evolve Bank & Trust.[1] In each case, courts either limited (Pension Fund) or rejected (Yotta) attempts to obtain fulsome family productions of hyperlinked documents. Pension Fund and Yotta signal courts’ expectations that parties adopt reasonable, right-sized positions on family production issues with hyperlinked documents and that they substantiate their positions on the issues with hard information and not simply arguments or speculation.
