More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

I have written several blogs about “modern attachments,” a/k/a “pointers or “hyperlinks.”^[1]  So, I was interested to read Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 WL 6465017 (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.), which cited several hyperlink cases that I was not aware of.

One “modern attachment” decision that gathered a lot of attention was Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021).  Others include In re StubHub Refund Litig., 2023 WL 3092972 (N.D. Cal. Apr. 25, 2023), and In re Diisocyanates Antitrust Litig., 2021 WL 4295729 (W.D. Pa. Aug. 23, 2021), report and recommendation adopted,  2021 WL 4295719 (W.D. Pa. Sept. 21, 2021).  Additional cases are discussed in Doug Austin’s excellent blogs, such as Hyperlinked Files as Modern Attachments – The Case Law (ediscoverytoday.com) (Aug. 28, 2023).

The Humpty Dumpty issue – – the question of re-linking pointers and targets – –  is very important in this context.  The more important – – and often overlooked – – question is “usability.”  

If pointers and targets are not relinked in the discovery process, will the separated documents be “usable” or admissible in motions, depositions, and trials?  I discuss that issue in the blogs cited below.  

However, while the busy judges carrying crushing caseloads are not writing law review articles, it is interesting to review some of the earlier hyperlink opinions cited by Justice Cohen in Pursuit Credit, but not in the more widely-cited decisions.^[2]  

DISCOVERABILITY DECISIONS: PUTTING HUMPTY DUMPTY TOGETHER

Pursuit Credit involved improper “rummaging” through documents in a link to DropBox and it is described more fully in my blog “Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable.   As to hyperlinks, Justice Cohen wrote:

To begin with, the Court finds Defendants’ reliance on various “hyperlink” cases to be unpersuasive. Those cases by and large stand for the unremarkable proposition that when an email references a specific document by hyperlink rather than by a physical attachment, the producing party may be obligated to provide the linked document to ensure that the email communication is produced in complete form (see e.g., IQVIA, INC. v Veeva Sys., Inc., 2:17-CV- 13 00177-CCC-MF, 2019 WL 3069203, at *5 [DNJ July 11, 2019]; Kelly v Provident Life and Acc. Ins. Co., 04-CV-0807-WQH (JMA), 2009 WL 10664172, at *5 [SD Cal May 29, 2009]; In re Telxon Corp. Sec. Litig., 1:01CV1078, 2004 WL 3192729, at *24 [ND Ohio July 16, 2004]; Shenwick v Twitter, Inc., 16-CV-05314-JST (SK), 2018 WL 5735176, at *1 [ND Cal Sept. 17, 2018]). That is not what happened here. Those cases do not stand for the proposition that when an e-mail contains a link to an entire cloud-based file directory to facilitate the recipient’s provision of services (i.e., not as a link to specific documents referenced in the email), that automatically means that the producing party’s entire cloud-based file directory becomes fair game for discovery. The implications of such a rule could be staggering and, in the Court’s view, is not what CPLR Article 31 envisions.

Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 WL 6465017 (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.).

One decision cited by Justice Cohen is IQVIA, Inc. v Veeva Sys., Inc., 2019 WL 3069203, at *5 (D.N.J. July 11, 2019).^[3]In that case, Humpty Dumpty had to be put back together, at least to some degree.  The case involved Google Drive documents that were referenced in emails.  The IQVIA court wrote:

With respect to the 2,200 linked Google Drive documents referenced in emails, the Special Master finds Pom Wonderful LLC v. Coca-Cola Co., 2009 WL 10655335 (C.D. Cal. Nov. 30, 2009) instructive. Like in Pom Wonderful LLC, there is no dispute that the linked documents are relevant to the claims and or defenses of this action. While, as Veeva argues, the linked documents are not stored with emails in the ordinary course of business, IQVIA has no way to link the documents, only Veeva is capable of linking the emails to the Google Drive documents. The Special Master is not convinced that relinking these 2,200 documents is unduly burdensome in light of the issues at stake in this matter, the resources of the parties, and the amount in controversy. Accordingly, to the extent possible, Veeva is ordered to link the Google Dive documents referenced in emails within thirty days of the date of this Order [emphasis added].^[4]

IQVIA, Inc. v Veeva Sys., Inc., 2019 WL 3069203, at *5 (D.N.J. July 11, 2019).

Another case cited in Pursuit Credit is Kelly v Provident Life and Acc. Ins. Co., 2009 WL 10664172, at *5 (SD Cal May 29, 2009). There, a party produced screenshots of web pages that contained non-working hyperlinks.  The discovering party asserted that “none of the documents at the end of the hyperlinks were produced.” The court agreed, holding “that any documents at the end of the hyperlinks must be produced.”  However, it did not require re-linking.

Pursuit Credit cited In re Telxon Corp. Sec. Litig., 2004 WL 3192729, at *24 (N.D. Ohio July 16, 2004)(unreported), a shareholders derivative action against a technology company.  The relevant part of the issue was an alleged failure “to produce documents linked to the workpapers, and to produce material embedded in the electronic versions of the documents.” The Telxon court wrote that: “Plaintiffs put the matter succinctly: ‘All PwC had to do when it initially printed^[5] the workpapers was to commence with the first folder, print the documents … (with associated pop-ups [,] links and embedded documents) and proceed to the next folder and repeat the process. It simply chose not to do so.’” The court concluded that: “No reasonable person could believe that PwC’s production to the SEC (and subsequently to Telxon and plaintiffs) was a ‘good faith’ production.”   

Shenwick v. Twitter, Inc., 2018 WL 5735176, at *1 (N.D. Cal. Sept. 17, 2018), also cited in Pursuit Credit, is short and to the point.  It ordered a partial Humpty Dumpty solution:

The parties submitted a letter brief regarding the production by Defendants of documents constituting “embedded hyperlinks” to electronic mail messages. Plaintiffs seek an order compelling production of these documents, and Defendants argue that production of these documents is overly burdensome. Plaintiffs identified 725 specific hyperlinks to documents at issue.

Defendant Twitter, Inc. (“Twitter”) uses a Google Suite (“GSuite”) environment in which individuals can work simultaneously on the same documents lodged in Twitter’s system. In different electronic messages, individuals referred to documents stored in the GSuite environment, via a hyperlink. After receipt of the electronic mail message, a recipient accesses the referenced document via the hyperlink, and sender and recipient can then modify the referenced document, which is stored centrally so that more than one person can access it.

Defendants produced 79,579 electronic mail messages and included specific attachments to those messages, resulting in the production of an additional 55,387 records. Defendants claim that the hyperlinks are not like attachments to electronic mail messages and argue that producing an attachment – a static document – is relatively simple, but producing a document referenced in a hyperlink – an evolving document – requires a multi-step process by a human being. The steps required are locating the document containing the link, clicking through the link to the source file, determining the file owner’s identity if a passcode is required and obtaining that passcode, manually identifying the date-stamped version of a linked GSuite document that corresponds to the referring electronic mail message, capturing the data in a manner that minimally affects the metadata, exporting the data to the vendor for processing, and producing the data in a manner that matches it to the referring electronic mail message. … Defendants claim that searching for and producing the documents in the 725 hyperlinks identified by Plaintiffs will take at least six weeks and cost more than $100,000…. Defendants also challenge the usefulness of this exercise, given that Defendants separately searched documents in the GSuite environment and produced relevant ones; the search will identify documents that Defendants have already produced.

Plaintiffs do not dispute the burden but argue instead that Plaintiffs should not suffer because Defendants have chosen a storage method that is difficult to search. Plaintiffs argue that the documents referenced in the hyperlinks are no different from attachments to electronic messages and that Defendants should produce them.

The Court is mindful of the burdens to Defendants but also notes that Plaintiffs have a right to determine if an electronic message refers to a document, then Plaintiffs should be able to access that document. Given the competing needs, the Court ORDERS that Defendants must produce documents referenced in a hyperlink for 200 documents that Plaintiffs choose. In other words, Plaintiffs may identify up to 200 hyperlinks for which they seek the referenced documents, and Defendants must produce them. The parties are ORDERED to meet and confer on a schedule for this production. If they cannot agree upon a schedule, they may submit that dispute to the Court but must make a meaningful effort to resolve any scheduling problems before asking for the Court’s assistance.

Shenwick, 2018 WL 5735176, at *1 (emphasis added).

It is fair to say that the discoverability decisions reflect careful balancing of interests and application of principles of proportionality.  On the one  hand, “modern attachments,” hyperlinks, and “pointers” are in commercial use and a litigant should not be required to engage in disproportionate or unnecessary efforts to put Humpty Dumpty back together again.  But, should a potential litigant be permitted to break the links?

INFORMATION GOVERNANCE & DOCUMENT DUMBING DOWN DECISIONS

A party cannot “dumb down” its documents by using an information technology system that makes them less than useful to a discovering opponent.  “[C]ost-shifting is appropriate only where electronic discovery imposes an undue burden or expense. I submit, however, that if a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data.”  Quinby v. WestLB AG, 245 F.R.D. 94, 104 (S.D.N.Y. 2006), amended, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007).

The Pom Wonderful LLC v. Coca-Cola Co., 2009 WL 10655335 (C.D. Cal. Nov. 30, 2009)(unreported), court looked at a series of cases that prohibit dumbing down documents.  One case stated that the producing party’s software configuration “does not provide Defendants with an excuse to produce the e-mails and attachments in a jumbled, disorganized fashion.”  Another refused to permit a party to shield itself from discovery by using “a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering the production of documents an excessively burdensome and costly expenditure.”  Several others refused to permit use of “an outmoded filing system” as a reason for inadequate responses.  

The Pom Wonderful court held that Coca-Cola “cannot seek to preclude plaintiff from pursuing discovery based on a record-keeping system that is plainly inadequate.”  Accord Advisory Committee Note to 2006 amendment to Fed.R.Civ.P. 34(b)(“If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”).

As I wrote in an earlier blog, many years ago, I litigated a commercial case on behalf of a large corporation.  Faced with discovery requests, I told a Magistrate Judge that the company’s documents were stored in a multi-floor building that was the size of a square block.  I said that there was no index to the voluminous documents.  The Judge replied with smile:  “There will be one now.’” See What Hath Noom Wrought?

However, Pom Wonderful and Quinby were decided long before Microsoft, Google, and others began widespread use of hyperlinked documents.

THE “USABILITY” ISSUE

Certainly, as demonstrated by the cited authorities, the discoverability issue of “modern attachments,” “pointers,” or hyperlinked documents is important and can be complex and costly. Proportionality is always a factor under Federal Rule of Civil Procedure 26(b).

From the inception, however, I have pointed to a separate, related, and equally important issue – – admissibility.  Discovery cannot be an end to itself. Discovery is of value only if it provides information that is usable in depositions, motions, and trials.

In the hyperlink or “modern attachment” context, this raises the question of what is a document?  If a witness in deposition or trial is handed an email with a pointer, but without the target document, is it fair or permissible to question the witness on what may – or may not – be a partial document?  Certainly, it would be objectionable to question a witness while showing only one page of a four-page letter.  

In short, if a pointer and a target are viewed as a single document – “please see the linked contract for your review” – neither may be admissible, or in loose language, “usable” – –  without the other.  If the pointer and target are not discoverable together, that may present evidentiary issues when either is shown to a witness for questioning.  

I suggest that “usability” is one of the most important factors to consider.  The whole purpose of discovery is to unearth information to use in motions, depositions, and trial.  Partial documents may be insufficient.

For specific examples of some of those issues, see What Hath Noom Wrought?, What is a “Document?, What is a Document? (Part II) and “Modern Attachments” or “Pointers”- What is a Document? (Part IV).  

I addressed some information governance questions in “Modern Attachments,” ESI Protocols, & Second Chances.  I wrote about terminology in “Modern Attachments” or “Pointers”- What is a Document? (Part IV).

Additionally, related preservation issues may be presented by hyperlinked documents because the target document may have been changed after the pointer email was sent.  And, “Links are also often generated with time restrictions — a link may only remain active for a certain duration, or user access may become invalid after a period…. And even if the legal team is able to preserve a linked item, how does counsel align the version history with the messages that included the links and the custodians’ varying access permissions to uncover facts during review?”  C. Gavin and G. Akkahve,  The Missing Links in Modern E-Discovery (ftitechnology.com) .

There are, however, tools in the toolbox to address these concerns.  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.

RESOURCES

^[1] See e.g., “Modern Attachments” or “Pointers”- What is a Document? (Part IV);  “Modern Attachments,” ESI Protocols, & Second Chances; and, What Hath Noom Wrought?

^[2] No criticism of any other court’s decisions is intended or implied.

^[3] Doug Austin blogged about the IQVIA decision.  One More Case About Hyperlinked Files as Modern Attachments (ediscoverytoday.com)(Oct. 17, 2023).  

^[4] IQVIA was distinguished in Porter v. Equinox Holdings, Inc, 2022 WL 887242, at *2 (Cal. Super. Mar. 17, 2022).

^[5] Telxon was issued in 2004.