In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), resolved a dispute over so-called “modern attachments” based on impressive and comprehensive technical presentations by sophisticated experts.
I have called “modern attachments,” “pointers,” or the problems associated with hyperlinked target documents, the “Humpty Dumpty Issue.” See More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” (Nov. 13, 2023).
Simply stated, can “pointers” or hyperlinks, and the contemporaneous “target,” proportionately be put back together again? If not, should that be held against the party that chose that form of information governance?
Michael Berman.
Simply stated, can “pointers” or hyperlinks, and the contemporaneous “target,” proportionately be put back together again? If not, should that be held against the party that chose that form of information governance?
Modern attachments are hyperlinks in, for example, an email, chat, or text message, in lieu of an “actual” or traditional attachment. They provide some technological and cost advantages. However:
[F]rom an information governance perspective, in light of the emerging caselaw, businesses may want to re-think whether “modern attachments” are a prudent management policy. Discovering parties will often request production of the modern attachment with the parent email. This may impose costs on the producing party. Craig Ball wrote: “To paraphrase Abraham Lincoln, you cannot murder your parents and then seek leniency because you’re an orphan.”[1]
Michael Berman, More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” (Nov. 13, 2023).
In addition to discovery problems, they may present other issues. Fed.R.Evid. 106 and the “rule of completeness” may be implicated by offering into evidence, for example, an email that points to a document without also offering the actual target document. See “Modern Attachments” or “Pointers”- What is a Document? (Part IV) (Aug. 12, 2022); What is a “Document?” (Aug. 17, 2021). After all, a litigant could not offer one page of a three-page letter. Is that the same here?
In In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), “[t]he Court previously resolved most of the parties’ disputes as to their competing proposed protocols for electronically stored information (ESI) in Pretrial Order (PTO) No. 9…. The Court provided instructions to the parties for further investigations and meet-and-confer regarding the cloud-stored documents issues, metadata fields, and related provisions of the ESI protocol.… The parties now submit a Joint Discovery Letter regarding their remaining disagreements, which the Court addresses herein.”
The court wrote that Uber uses Google Workspace which provides it with “a suite of cloud-based web applications, including Gmail, Google Chat, Google Drive, and Google Vault.” Further, “Uber utilizes Google Vault as an information governance and e-discovery tool for its Google Workspace data…. Through Google Vault, Uber retains and holds, among other things, users’ Gmail messages and Google Drive files…. Google Vault can act as a clearinghouse to process data for discovery purposes.” The court noted that: “Uber’s standard discovery process involves exporting a custodian’s Gmail messages and Google Drive files from Google Vault.”
The court wrote:
Of principle concern here, a Gmail or Google Chat message that contains a hyperlink to a document is referencing a Google Drive document that may still be evolving. A recipient or others may modify that referenced document, which is centrally located so multiple people can access and edit it. Furthermore, Google Vault does not export, collect, or connect the contemporaneous versions of hyperlinked documents with the corresponding emails or messages in which they are found. Rather, when a hyperlinked Google Drive document is exported from Google Vault, the current version of that document is exported. If a Google Drive document archived using Google Vault was edited after the email with the hyperlink to the document was sent, then the Google Vault export will not reflect the version of the document that existed at the time of the email. For data archived using Google Vault, and no longer in the active Google Workspace, there is a manual process in place to identify a historic version of a hyperlinked Google Drive document contemporaneous with the email communication…. [emphasis added].
Certain technologies have been developed to link email and chat messages to Google Drive documents, but there are limitations.[2] Metaspike’s Forensic Email Collector (FEC) program can retrieve active Google Email and contemporaneous versions of linked Google Drive documents, but it does not have the ability to do the same with Google Email and Drive documents archived using Google Vault….[3] Uber’s e-discovery vendor, Lighthouse, has developed a tool, Google Parser, that extracts specific links to Google Drive documents from email and chat messages and certain metadata…. Google Parser facilitates the grouping together of a message and document stored in Google Drive for purposes of review and production, and it contains certain metadata fields relevant to search, review, and production of messages…. However, there is no evidence that this technology, which is an extraction tool, has been refined and deployed to collect contemporaneous versions of hyperlinked documents archived with Google Vault.
In sum, the briefing and evidence, as well as related case law, have made clear that cloud computing and document retention through Google Drive and Google Vault introduce a host of challenges to producing hyperlinked documents from Google Drive and other sources. See Nichols v. Noom Inc., No. 20CV3677LGSKHP, 2021 WL 948646, at *2 (S.D.N.Y. Mar. 11, 2021) (recognizing that “complex questions about what constitutes reasonable search and collection methods” result from “the changing nature of how documents are stored and should be collected.”). Yet, contemporaneous versions of hyperlinked documents can support an inference regarding “who knew what, when.” An email message with a hyperlinked document may reflect a logical single communication of information at a specific point in time, even if the hyperlinked document is later edited. Thus, important evidence bearing on claims and defenses may be at stake, but the ESI containing that evidence is not readily available for production in the same manner that traditional email attachments could be produced. See Favro Decl. ¶¶ 13–15 (describing the challenges associated with collecting specific iterations of hyperlinked documents compared with traditional email attachments).
In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 at *1-2 (N.D. Cal. Apr. 23, 2024).
Having thus framed the technological issue, the court looked at its prior order that Uber consult its experts and printed each of the parties’ “proposed language for the ESI protocol as to cloud-stored documents….”
The court wrote: “Uber submitted declarations from William Anderson, an Uber employee who specializes in e-discovery; Jamie Brown, a Lighthouse representative; and a supplemental declaration from Philip Favro,[4] Uber’s e-discovery expert…. Plaintiffs submitted a second declaration from Douglas Forrest, their e-discovery expert.”
The court set out the parties’ differing positions:
- “Uber’s position, based on its ‘exhaustive’ investigation, is that ‘no technical, scalable solution is available’ to automate the process of collecting contemporaneous versions of hyperlinked documents.”
- “Plaintiffs, on the other hand, claim to have identified a process for automation. Plaintiffs submit a Proposed Methodology for Retrieving Google Drive Documents Linked to Within Google Emails (Proposed Methodology)…. They have created a Proof-of-Concept program, described in detail in Mr. Forrest’s declaration, which supposedly demonstrates that there is a method available to programmatically retrieve contemporaneous versions of linked Google Drive documents…. The Proposed Methodology provides that Uber is to create such a program based on Plaintiffs’ Proof of Concept to produce contemporaneous versions of documents with Google Drive hyperlinks.”
However, “[t]he Court [was] not persuaded that Plaintiffs’ Proposed Methodology is a reasonably available option here. Mr. Forrest’s consulting firm created the Proof-of-Concept program based on a post in Stack Overflow, ‘a well-known and widely used forum for developers,’ which contains sample scripts purportedly for retrieving ‘a date-specific revision of a Google Drive Google native document identified by its Document ID.’…. However, as Mr. Anderson points out, the anonymous internet user who posted the script on which the Proof-of-Concept program is based on admitted that it did not work.” Id. at *3.
The court added:
Perhaps there is a way to work out these kinks, as Plaintiffs suggest…, and the Proof-of-Concept program can eventually be used by some developer as a foundation for creating a program to automate the process of collecting from archived Google Vault data the contemporaneous versions of Google Drive hyperlinked documents. But the Court will not order Uber to expend potentially significant time and resources to develop such a program in order to produce discovery in this MDL, as the program’s effectiveness is not assured.…The Court is satisfied by Uber’s showing in the Joint Discovery Letter that it has thoroughly investigated the issue, and that no technological solution is currently readily available to automate the process when it comes to collecting contemporaneous versions of hyperlinked documents. [emphasis added].
However, the court then looked at the primary cause of the dilemma:
The Court is mindful of the burdens to Uber but also recognizes that Uber has chosen Google Vault as its storage method. See Shenwick v. Twitter, Case No. 4:16-cv-05314, 2018 WL 5735176, at *1 (N.D. Cal. Sept. 17, 2018) (requiring the defendants to conduct manual searches and produce 200 hyperlinked documents despite the undisputed burdens because they chose their storage method and the plaintiffs are entitled to discovery). In Shenwick, the defendants utilized Google Vault for document review and production…. Thus, the potential limitations and pitfalls with respect to production of hyperlinked documents from Google Vault have been widely known for many years, yet Uber has elected to transfer and retain its electronic data using this service. [emphasis added].
The court directed that the ESI Protocol state as follows:
a) Metadata Preserved.
Uber shall preserve the metadata relationship between email messages with links to files on Google Drive to the extent feasible with existing technology. Uber shall preserve and produce (including, if necessary, as custom fields) all metadata collected with respect to all cloud-stored documents. That includes, but is not limited to, all metadata output by Google Vault when exporting a matter. Thus, the metadata exported from Google Vault pertaining to each document shall be preserved and produced as metadata for the same document within the load file of any production containing any such document.
b) Hyperlinked/URL-Referenced Documents.
Producing party shall make all reasonable efforts to maintain and preserve the relationship between any message or email and any cloud-hosted document hyperlinked or referenced within the message or email. Thus, for instance, where a collected email links to or references by URL a document on Google Drive (or housed within Google vault,) the metadata for that message or email shall include the URLs and Google Document ID of all hyperlinked documents.
c) Contemporaneous Versions of Hyperlinked/URL-Referenced Documents.
Uber shall produce, to the extent feasible on an automated, scalable basis with existing technology, the contemporaneous document version, i.e., the document version likely present at the time an email or message was sent, of Google Drive documents referenced by URL or hyperlinks therein. For hyperlinked Google Workspace data archived using Google Vault, Uber is not required to produce the contemporaneous document version at the time the email or message was sent, as this is not possible through an automated process with existing technology. However, Plaintiffs may identify up to 200 hyperlinks for which they seek the contemporaneous referenced document even though the email or message has been archived with Google Vault. Uber shall identify and produce the likely contemporaneous versions that Plaintiffs have requested. The scope of this production does not exempt Uber from any obligation that it preserve historic versions or revision history of any document referenced by URL or hyperlink. [emphasis added].
The court retained jurisdiction to modify the order:
The parties may seek to modify the protocol with respect to the production of contemporaneous versions of hyperlinked documents based on the need for relevant discovery and what is proportional to the needs of the case, or what electronic data is not reasonably accessible because of undue burden or cost. By stipulation of the parties, or through Court order, Plaintiffs may request additional contemporaneous documents, and Uber may seek relief from the production of certain versions or other obligations under the ESI protocol based on undue burden or costs, overbreadth or disproportionality.
In fact, in connection with another issue, it wrote: “The Court recognizes, however, that early ESI decisions may need to be modified when new information is learned. [P]roportionality considerations may need to be re-balanced at later points in the litigation, and…discovery plans may be modified when new information is learned.” Id. at *5 (citation and internal quotations omitted)(emphasis added).[5]
It then turned to the parties’ differing definitions of the word “attachment.” Id. at *6. It defined the word as follows:
“Attachment(s)” shall be interpreted broadly and includes, e.g., traditional email attachments and documents embedded in other documents (e.g., Excel files embedded in PowerPoint files) as well as modern attachments, pointers, internal or non-public documents linked, hyperlinked, stubbed or otherwise pointed to within or as part of other ESI (including but not limited to email, messages, comments or posts, or other documents). This definition does not obligate Uber to produce the contemporaneous version of Google Drive documents referenced by URL or hyperlinks if no existing technology makes it feasible to do so. [emphasis added].
In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024).
Finally, the parties were ordered to incorporate the rulings into their ESI Protocol to be submitted to the court.
This is an incredibly complex case. As of April 25, 2024, there were 513 docket entries subsequent to the October 4, 2023, transfer order.
The technological issues were also complex. The expert analyses provided by the parties is impressive, at a minimum.
I would hazard a guess that this is not the last word on “modern attachments.”
For my comments on some of the issues, please see:
- “Modern Attachments,” ESI Protocols, & Second Chances (Jun. 8, 2023);
- “Modern Attachments” or “Pointers”- What is a Document? (Part IV) (Aug. 12, 2022).
Notes
[1] “Modern Attachments,” ESI Protocols, & Second Chances (Jun. 8, 2023).
[2] See Doug Austin Reports on Google Export Feature Re: Hyperlinked Documents (Dec. 14, 2023).
[3] The court cited a declaration from Phil Favro.
[4] Philip Favro | LinkedIn; Philip Favro – Innovative Driven.
[5] In what I call “the great escape clause debate,” some commentators oppose the use of escape clauses. ESI Protocols: How Do I Get Out of a Bad Deal? | Ball in your Court (craigball.net)(Mar. 19, 2024); ESI Protocols and Getting Out of a Bad Deal, by Craig Ball (ediscoverytoday.com)(Mar. 25, 2024). Others do not. Cassandre Coyer, E-Discovery Caselaw 2023: ESI Protocols, Intent to Deprive Standard and Relevancy Redactions | Legaltech News (Nov. 10, 2023); accord Cat Casey, 12 Secrets to Modernize Your ESI Protocol (ampproject.org) (Mar. 26, 2024); Kelly Twigger, 2023 ESI Protocol Practical Guide-Download | eDiscovery Assistant; The ESI Protocol: Your Word is Your Bond… Or, Is It?; Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II); “Modern Attachments,” ESI Protocols, & Second Chances; “ESI Protocol” v. “Discovery Plan”.
