[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
This is the first of four follow ups to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
The Social Media Addiction court resolved a dispute over – – and entered an order governing – – “modern,” “cloud,” or “hyperlink” attachments, a/k/a “pointers,” as part of a court-ordered ESI Protocol. 2024 WL 1786293 at *7-8.
I have called this the “Humpty Dumpty” issue. Must all the king’s horses and all the king’s men [and women] put modern attachments together again? See ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue” (Apr. 29, 2024)(discussing In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024)); More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”(Nov. 13, 2023).
I have also suggested that the focus on discoverability of the linked target may miss a separate, critical evidentiary issue – – impermissible use of what may be a partial document in deposition, motions, and at trial. Id.
I have, in prior blogs, written that, at a bare minimum, a thorough discussion of discoverability – – must the producing party attempt to put Humpty Dumpty together again for some or all documents – – and “usability” – – how will incomplete documents be used in depositions, motions, and at trial – -should be part of any conference of the parties discussing this issue.
Michael Berman.
RESOLUTION OF THE “HUMPTY DUMPTY” ISSUE
The “Humpty Dumpty” issue involves technological and proportionality issues. First, is reassembly of the pointer and target a process that is manual or can it be automated? Second, is reassembly proportionate?
In Social Media Addiction, the court – – likely wisely – – kicked the can down the road. It ordered what I would call a “partial Humpty Dumpty” solution. Upon request, a reasonable number of documents must be reassembled.
In Social Media Addiction, the court printed the parties’ competing proposals for the ESI Protocol, and then wrote:
Plaintiffs’ proposal assumes all or most of the Defendants use Google or Microsoft tools, and further assumes that there exist various capabilities of Google and Microsoft tools which, at the [court conference], were admitted to be based on certain reading of documentation about those tools and not based on actual knowledge as to their capabilities. At the [court conference], counsel for Defendants represented to the Court, for example, that the tools are incapable of backlinking documents with emails. Defendants’ proposal allows for manual retrieval of hyperlinked documents upon request from Plaintiffs, which the Court notes is more robust than an automated system (since an automated search system raises questions of reliability and validation, which the Parties dispute as discussed above). Because the number of documents versus documents/emails that have hyperlinks will vary in unknown amounts amongst the Producing Parties, the Court sets no hard numerical limits (recognizing that Defendants proposed 500 initially and thus appear to tacitly admit that 500 is a reasonable limit). But the Court cautions the Parties not to abuse the ability to request hyperlinked documents. [emphasis added].
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
The court then ordered that the parties include the following in their ESI Protocol:
e) Family relationships between emails and their attachments, embedded files and their source document, and connected hardcopy documents will be maintained in production. Attachments should be consecutively produced with their parent.
13) Hyperlinks. Document(s) and/or folder(s) of documents that are hyperlinked inside a responsive document (including hyperlinked inside emails) within a Producing Party’s custody, possession, or control, do not need to be produced in the first instance as part of the same family group as the Document residing at the location to which that hyperlink points. If there are particular hyperlinks identified by the Requesting Party in produced documents, the Requesting Party may submit a list of hyperlinks to a particular Producing Party for potentially relevant documents by identifying the Bates number and URL or link text for each requested link to the Producing Party, and the Producing Party will engage in reasonable efforts to locate the hyperlinked document at that location and either identify it by Bates number or provide any responsive, non-produced, and non-privileged documents. The number of hyperlinks a Requesting Party may identify to a Producing Party shall not be excessive and shall be reasonable, proportional to the needs of the case, and not unduly burdensome. [emphasis added].
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
This “partial Humpty Dumpty” solution is similar to that of other courts. See More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” (Nov. 13, 2023), citing, for example, Shenwick v. Twitter, Inc., 2018 WL 5735176, at *1 (N.D. Cal. Sept. 17, 2018). I have also suggested that phased discovery, such as this, may be the most practical solution. What Hath Noom Wrought? (Apr. 25, 2023). By kicking the can down the road, it permits any issue to be specifically presented without hypothetical facts.
I suggest that, where a party has “dumbed down” its ESI as part of its information governance system, it should bear the cost of putting Humpty Dumpty back together, whether in whole or in part. See id. Recently, in In Re: Uber Technologies, Inc., Passenger Sexual Assault Litigation, 2024 WL 1772832 (N.D. Cal. Apr. 23, 2024), the court, at least partially, applied this principle, writing: “The Court is mindful of the burdens to Uber but also recognizes that Uber has chosen Google Vault as its storage method…. [T]he 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.”
In the same vein, Tom O’Connor wrote:
Imagine, if you will, that Boris Badenov, VP of Sales for the Acme Spyware Company, sends an internal email to Natasha Fatale, VP of Human Resources for the same company. The email says, “Natasha, take a look at this internal memo to my sales team for Q3. That old guy in the S’East sector is 25% below all my other sales reps and I let him know in the memo that old timers are nothing but dead wood and he better get up to speed or I’ll fire him like I’ve fired every other dead wood grey hair over the age of 60 in my unit.” The memo is “attached” via a hyperlink to Acme’s One Drive storage network.
Natasha replies by saying, “Boris, I agree. Take a look at my report on all the people over 60 we have let go in the past 5 years.” That report is also “attached” via a link to OneDrive.
A year later, these emails were preserved in a litigation hold pursuant to an age and sex discrimination lawsuit filed by several former employees of Acme. A year after that they were produced in the litigation.
Is anyone going to contend that the documents referenced in the hyperlinks should not also have been preserved and produced?
Thomas O’Connor, “Are Hyperlinks the same as Attachments? Judge Parker opinion Nichols v. Noom” (Digital War Room May 21, 2021).
That is a discovery issue. While important, it may not be the only issue.
THE EVIDENTIARY ISSUE
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); More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”(Nov. 13, 2023); What is a “Document?” (Aug. 17, 2021); M. Berman, “Use of ESI in Depositions,” Chap. 23 in M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011).
After all, a litigant could not offer only one page of a three-page letter. Is that the same here? If pointers and targets are not relinked in the discovery process, will the separated documents be “usable” or admissible in motions, depositions, and trials?
How must attachments to email be handled [in depositions and at trial]? At the time the email was transmitted, the sender or recipient saw the email message with the unopened attachment on the screen. Nevertheless, is it fair to show the deponent an email that had attachments… without simultaneously showing the attachments to the deponent?
M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), Chap. 23.
In short, when it comes to “modern attachments,” there is a basic definitional question – “what is a document?” See What is a Document? (Part III)(Apr. 4, 2022)(discussing multi-content electronic files, such as text strings, email strings, spreadsheet workbooks, PDF portfolios).
Frequently, when it comes to cloud attachments, there is no dispute that the linked documents are relevant. IQVIA, Inc. v Veeva Sys., Inc., 2019 WL 3069203, at *5 (D.N.J. July 11, 2019). I have, in prior blogs, written that, at a bare minimum, a thorough discussion of discoverability – – must the producing party attempt to put Humpty Dumpty together again for some or all documents – – and “usability” – – how will incomplete documents be used in depositions, motions, and at trial – -should be part of any conference of the parties discussing this issue.
Pre-planning is important. Fed.R.Civ.P. 34 permits a requesting party to specify the form or forms of production.1 I have suggested that Fed.R.Civ.P. 34 permits a party to specify the form or forms of production. A requesting party should consider the hyperlink issue in drafting its requests. Rule 34 should be used in combination with a Fed.R.Civ.P. 26(f) conference of the parties.2
In What Hath Noom Wrought? (Apr. 25, 2023), I posited the following scenario to illustrate the potential evidentiary issue:
Let’s fast-forward Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021), to the deposition stage. Let’s assume that Noom produced a document without the hyperlink. At Noom’s deposition, the interrogating party hands it to the deponent and asks, “do you recognize what has been marked as Deposition Exhibit no. 55?”
Immediately, Noom asks that the deponent be excused from the room and makes the following “speaking objection”:
Under the rule of completeness, Fed.R.Evid. 106, it is not fair to question the deponent on Exhibit 55. It is only part of the document. The document is one of hundreds that the deponent saw while working on this project and it is hyperlinked to other important information that gives it context. Your questions are much like showing a deponent only the first page of a fifteen-page letter or one part of an email chain. That is impermissible. Further, the partial document is dated five years ago, and the deponent has not seen it since then. The passage of time makes it doubly unfair to ask questions using only part of a document while taking away the context.
The interrogating party replies:
Wait a minute. I’m using what you produced to me. You said that the hyperlink wasn’t part of the document. You asserted that it was not an attachment. You can’t object now and assert that your production was so defective that I can’t ask questions based on it.
Noom responds:
No, you’re comparing apples and oranges. That form was chosen to avoid undue burden in a document production. This deposition is far different. Here, we are talking about testimony under oath and fairness to a testifying deponent. It’s not fair to question someone under oath on a complex, five-year-old document using only your cherry-picked part of it. We produced the hyperlinked document to you separately. You could have presented it to the deponent with the email. And, alternatively, if the missing information was an internal link, you could have asked for a copy of it, as the Judge ruled. Of course, if it was an external link, you could have gotten it.
The interrogating party retorts:
You would have objected and refused to produce it if was internal. And, a five-year-old internal or external link can’t be authenticated. You’re hiding the ball. Let’s bring the deponent back in to answer the question.
The deponent returns to the deposition room and is asked:
Please take your time and look at Deposition Exhibit 55. Do you recognize it?
The deponent responds:
I’m not sure. It’s been a long time. I can’t answer “yes” or “no.” I don’t remember. All of the linked information that came with it is missing. That’s what I would remember – the links. See, there was a spreadsheet called “how_I_got_the_answer.xlsx.” And, there was a memo named “here_is_my_thought_process.docx.” If I could see them, maybe I could answer your question. But with only this fragment, I just don’t recall.
Since the earliest days of e-discovery, parties have been advised to discuss the form or forms of production. Sandoz v. Un. Therapeutics Corp., 2021 WL 2453142 (D. N.J. Jun. 16, 2021)(text bubbles), and Noom give additional force to this approach. “[C]omplexities with collecting and producing linked documents … may lead to motion practice and delays if parties do not establish a process for handling this information at the outset of discovery.” Philip Favro, “Dispute Over Linked Google Drive Documents Highlights Discovery Challenges with Information Systems” (The Sedona Conference, 2021).
That part of the dialog is, in my view, just as important as the discoverability issue. As the Hon. Paul W. Grimm wrote:
[C]onsidering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.
Hon. Paul W. Grimm in Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
Notes
1 More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”
2 What Hath Noom Wrought? (Apr. 25, 2023).
