[EDRM Editor’s Note: This article was first published here on March 6, 2025, and EDRM is grateful to Michael Berman and E-Discovery LLC for permission to republish. The opinions and positions are those of Michael Berman.]
In In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation, 2025 WL 678543 (Mar. 3, 2025), the court issued another hyperlinked document discovery decision arising out of the parties’ ESI Protocol. While production issues concerning hyperlinked or “modern” attachments have been extensively litigated, in this blog I discuss some related evidentiary issues.
While written in a different context, “considering 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.” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007)(Grimm, J.).
For some of the prior history of Uber Technologies, please see: ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue” (Apr. 29, 2024).
The new Uber Technologies decision began as follows:
As an overarching question, many of the parties’ disputes here implicate the ESI Protocol filed on May 3, 2024 as Dkt. No. 524. Before the Court approved the ESI Protocol, the parties disputed whether a hyperlinked document, such as a cloud-based document in Google Drive, constitutes an attachment. The Court determined that a hyperlinked document is an attachment, for purposes of the ESI protocol in this litigation, because it is akin to a traditional email attachment, where the email message and hyperlinked document reflect a single communication at a specific point in time.… Accordingly, the ESI Protocol treats hyperlinks as “attachments,” but does not require Uber to provide contemporaneous versions of all hyperlinks….
Id. at *1 (Emphasis added).
The ESI Protocol defined “attachments” and stated that: “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.”
The court wrote that:
In this litigation it has been established that it is technologically feasible for Uber to produce contemporaneous versions of Google Drive files (Google Docs, Sheets, etc.) stored in the normal Google Drive cloud storage system when linked in an email, but it is not technologically feasible for Uber to automate the production of contemporaneous versions when Gmail messages and hyperlinked Google Drive files have transitioned to the Google Vault storage system. At least for Google Drive hyperlinked email attachments, the ESI Protocol requires Uber to provide metadata linking the hyperlinked document to the email where it is referenced.
Id.
This was accomplished using a “LINKBEGBATES” metadata field.
The Uber Technologies decision addressed three hyperlink issues and one email threading issue.
Issue 1: Hyperlinks to Non-Google Drive Documents[1]
The court stated: “Plaintiffs seek at least metadata, and perhaps also production of the underlying documents, for hyperlinks that reference resources other than Google Drive documents. Uber contends that this is not required by the ESI Protocol (which instead focuses on Google Drive hyperlinked attachments), while Plaintiffs argue that it falls within Uber’s obligation to provide sufficient metadata to establish parent-child relationships between documents and their attachments. Uber also presents evidence that currently the production of hyperlinked non-Google Drive documents is not technologically feasible at scale.”
Plaintiffs did not dispute the evidence. Instead, they relied on the ESI Protocol which stated that Defendants would preserve the association between parents and attachments. The protocol also provided that hidden URL’s would be extracted and included in the text. Id. at *2.
The court wrote:
Even if the ESI Protocol could be read as requiring metadata, beyond the URL for hyperlinks to non–Google Drive documents, there is no obligation where it is technologically infeasible for Uber to do so at scale. Uber cannot use a method of collection and processing that preserves a certain metadata relationship, if the method does not exist. Furthermore, it is not clear what metadata fields Plaintiffs seek, and which metadata fields Uber must provide under the ESI Protocol for hyperlinked non-Google Drive files that can be collected and produced by Uber in an automated fashion, if any.
Id.
Even if the ESI Protocol could be read as requiring metadata, beyond the URL for hyperlinks to non–Google Drive documents, there is no obligation where it is technologically infeasible for Uber to do so at scale.
In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation, 2025 WL 678543 (Mar. 3, 2025).
The court made three rulings on this issue:
- “[W]here Plaintiffs believe a particular hyperlink is potentially relevant and further information besides the URL is necessary, Plaintiffs may ask Uber to produce the hyperlinked document, or to identify its Bates number if already produced. If the linked document has already been produced, Uber must identify it by Bates number. If the linked document has not already been produced, Uber must produce it if it is relevant to the case or to a reader’s ability to understand the document that links to it (and is not privileged or otherwise protected from disclosure). Uber need not produce documents for hyperlinks to public websites.”
- “The parties are ORDERED to meet and confer as to a protocol for such requests, and to file either a stipulation or joint letter no later than one week from the date of this Order. Such a protocol may include a limit on the number of requests Plaintiffs may make if the parties believe that is appropriate. If there is a dispute as to the number of requests to allow, the Court is inclined to allow a large number.”
- “Separately, the parties are also encouraged—but not required—to consider whether it is technologically feasible to include further useful information regarding hyperlinked non–Google Drive documents in future document productions, and whether doing so would be more efficient than providing such information through case-by-case requests.”
Issue 2: Hyperlinks Within Non–Google Email Documents
The ESI Protocol required production of hyperlinked documents that appeared in communications. “Plaintiffs contend that Uber has not been producing documents or metadata (other than URLs) for hyperlinks that appear in documents other than emails sent through the Google Gmail platform, which the Court understands to be Uber’s internal email system.” Id. at *2.
The Uber Technologies court wrote:
Even if the ESI Protocol required more, namely the production of documents hyperlinked in documents other than communications, Uber has presented undisputed evidence that this is not feasible using Google Vault or a third-party tool.
Id.
The court considered the capabilities of “Google Parser” and wrote: “Plaintiffs have not since presented any evidence that it is technologically feasible to automate the production of hyperlinks within non-Google emails or chats, though one of Uber’s declarants noted that Microsoft Purview facilitates the collection of linked documents as part of a message collection.” However, Microsoft communications were not at issue in this case.
The court ruled:
If it has not already done so, Uber shall produce documents hyperlinked in Google chat messages, and related metadata to the extent feasible. The parties shall meet and confer and stipulate to a deadline for the production. As to hyperlinks contained in documents other than Google emails and chat documents, the same outcome as described for Issue 1 is appropriate, and the parties are ORDERED to comply with the process set forth in the preceding section with respect to hyperlinks appearing in documents other than Gmail and chat messages.
Id.
Issue 3: Missing Information Regarding Typical “Modern Attachment” Links
Plaintiffs asserted failure to produce metadata required by the ESI Protocol “for links to Google Drive documents from Gmail messages.” The parties reported that they had narrowed the dispute and the court ordered continued discussions and a report.
Issue 4: Email Threading
“The ESI Protocol calls for treating each email as a distinct document, rather than allowing for production of consolidated email threads….” Id. at *3.
Even where Uber does not produce an earlier email separately, the later email that has been produced often quotes the content of the earlier emails in a thread below the new message. Uber apparently has not been producing documents or metadata (other than URLs) for hyperlinks appearing in that quoted text. Uber contends that it is treating such links in the same manner as traditional attachments, which often would not be included in a reply to the original message where the document was attached…. That is often (but not always) true for threads created by email replies, although it is similarly often (but not always) false for threads created by forwarding earlier emails.
Michael Berman, E-Discovery LLC.
The court wrote:
Can a hyperlink within an earlier email be considered the equivalent of an attachment to a later email that quotes the earlier email? Under some circumstances, perhaps—but the question does not have a clear, universal answer, and the ESI Protocol does not speak to this issue directly. Once again, the Court concludes that, at this stage of the case, a process of handling such issues by request is appropriate under the same framework discussed above.
Id. at *4 (Emphasis added).
The Decision
The Uber Technologies court wrote:
The parties are ORDERED to meet and confer as to a protocol for Plaintiffs requesting and Uber providing either documents or metadata for: (1) hyperlinks to sources other than Google Drive documents; (2) hyperlinks within documents other than Gmail messages; (3) earlier-in-time emails that are quoted in produced emails but have not been produced separately; and (4) hyperlinks within such earlier-in-time emails. Uber need not produce documents that are irrelevant, privileged, or protected from disclosure. For hyperlinks to public websites, Uber need produce documents or information other than URLs, except that Plaintiffs may request contemporaneous versions of Uber’s own public webpages where relevant. [Emphasis added].
Id.
One More Thing to Consider
Discovery is not an end to itself. The goal of document production, including production of ESI, is to develop admissible evidence for use at trial.
There may be a significant evidentiary issue if a target document from a communication is not produced with the pointer. Here is the problem in a non-hyperlink context: “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 my opinion, that issue may survive in the hyperlinked context. In 8 Lessons Learned – Part I – The “Humpty Dumpty” Clause of ESI Protocol (May 6, 2024), I wrote:
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?
Michael Berman, 8 Lessons Learned – Part I – The “Humpty Dumpty” Clause of ESI Protocol (May 6, 2024).
In What Hath Noom Wrought? (Apr. 25, 2023), I provided a detailed scenario to illustrate the potential evidentiary issue.
In short, when it comes to “modern attachments” being used as evidence, there may be 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).
When parties are negotiating ESI Protocols regarding the manner of production of hyperlinked documents in discovery, it may be important to also discuss evidentiary issues and to discuss how those documents – – or what to a witness may be only a partial document – – will be used in depositions and trial.
Read the original article here.
Notes
[1] Although not in quotes, the issues in this blog are precisely as stated by the court.
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
