[EDRM Editor’s Note: EDRM is happy to amplify our Trusted Partners news and events. The opinions and positions are those of Exterro. This article was first published on October 3, 2024.]
Exterro initiated the E-Discovery Case Law Project (EDCLP) with the understanding that professionals in this rapidly evolving field must continuously stay informed to perform their jobs optimally. In the realm of e-discovery, professionals must have a keen focus not just on tech trends, like the communication and collaboration methods within their organization, but also on case law, where the courts lay down guidelines as to how to appropriately manage new technologies.
Two of the biggest topics in e-discovery in 2024 have to do with preserving, producing, and reviewing “modern attachments,” essentially meaning hyperlinked documents, and chat or instant messaging technology. Covered in a recent whitepaper from Exterro, both of these forms of communication are ubiquitous in modern organizations. Rather than attaching word processing or spreadsheet files, more and more professionals send links to shared documents, facilitating collaboration across organizations. Similarly, when organizations adopt instant messaging platforms, like Slack or Google Chat, much of the work that used to happen in emails migrates into these asynchronous communication platforms.
But these new platforms have posed challenges to e-discovery professionals. Linked documents can be difficult to collect or preserve, since by their very nature they encourage constant editing and updating. Relevant chat messages in a group channel may be buried in an avalanche of side conversations, making it difficult to preserve or review them. What’s an e-discovery professional to do?
One of the best things is to turn to case law for lessons, and here are some expert tips that will help you ensure you’re acting responsibly and defensibly to fulfill your e-discovery obligations.
In re Uber Techs., Inc. Passenger Sexual Assault Litig. (N.D. Cal. April 23, 2024)
This case sets a significant precedent for eDiscovery practices, specifically regarding the handling of hyperlinked documents in cloud-based systems like Google Workspace.
Expert Analysis by Angie Nolet, Senior Corporate Counsel, Redfin, and Co-Founder and Host, EDiscovery Chicks
Parties should strongly consider defining “attachment” during ESI Protocol negotiations, especially when tackling modern or tricky sources. And when defining that term, they should consider not only the technological capabilities and limitations of their software, but also the burden of producing ESI that falls within that definition. For example, if producing hyperlinked files is technically possible, but highly manual, parties may want to excise those files from the definition of “attachment.” Google is a challenging data source, and until there’s consensus among the courts and service providers about what data it can and cannot export, explicitness in ESI Protocols will be key to avoiding expensive disputes.
In Re: Insulin Pricing Litigation (United States District Court, D. New Jersey)
Hyperlinks are not the same as traditional attachments, and recent case law clarifies their treatment in e-discovery protocols. This alert is crucial for legal professionals to understand the distinction and its implications for document production.
Expert Analysis by Hon. Andrew Peck (Ret.), Sr. Counsel, DLA Piper
Judge Singh clearly held that “hyperlinks are not the same as traditional attachments.” (In fact, I would suggest that people stop referring to them as “modern attachments.”) But the important conclusion, as in the recent Stubhub case, is that there is not (yet) a commercially available tool to produce hyperlinked documents along with the “parent” email. However, the technology keeps changing, so lawyers and judges should expect expert testimony in future cases and not just rely on this and other decisions on this issue at this time.
In re Stubhub Refund Litigation (N.D. Cal. April 25, 2023)
With the exponential increase in electronically stored information (ESI), it’s critical that legal teams consider the structure of their data to ensure outlined ESI protocols can be met during production as to reduce the threat of future sanctions.
Expert Analysis by Patricia Antezana, Counsel, ReedSmith
Lawyers need to be knowledgeable about clients’ ESI and their technical capabilities before agreeing to ESI protocols. If parties agree to specific ESI protocols, those agreements are binding, and courts will enforce them. Defendant in this case was faced with, at least, increased discovery costs and expenses, and the Court left open the possibility of Plaintiffs’ filing a sanctions motion.
For more detail on these cases and insights into three other recent rulings, download the new Exterro whitepaper, Are You Ready for These New Technologies?
Read the original release here.
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
