Hyperlinked documents are increasingly common in enterprise work environments and pose some unique challenges for eDiscovery. ProSearchers Ryan Hemmel and Luke Groth joined with ACEDS in a recent webinar to explain hyperlinked documents and offer best practices on dealing with this content in eDiscovery workflows.

Here we offer a brief recap and the link below to view the webinar on demand.

A hyperlinked document is shared via a URL or link, directing the recipient to a file stored on a cloud server. Unlike traditional attachments, the underlying file is not transmitted to the recipient but remains under the sender’s control. This distinction is crucial for eDiscovery because it affects how documents are collected, reviewed, and produced. For example, while a traditional attachment is static and unchangeable once sent, a hyperlinked document can be edited continuously, with recipients always seeing the latest version.

Challenges in eDiscovery

The shift to hyperlinked documents introduces several complications in the eDiscovery process:

  1. Search Limitations: Early case assessment (ECA) and filtering tools often cannot search the content of hyperlinked files. These documents must be downloaded first to be searchable, complicating the discovery process and potentially leading to incomplete data collection.
  2. Accessibility Issues: The status of hyperlinked documents can change over time. Files may be deleted, moved, or renamed, rendering the original link inaccessible. This variability poses a risk of losing crucial information and challenges the integrity of document preservation.
  3. Document Families and Context: Reconstructing the relationship between a hyperlinked document and its originating communication – such as an email or chat message – can be difficult. This issue complicates understanding the context and content of the communication, which is often critical in legal proceedings.
  4. Content Changes and Versioning: The collaborative nature of hyperlinked documents means their content can change frequently. Determining the exact version of a document at a specific time can be essential in legal disputes, especially when trying to establish “who knew what and when.” Collecting every version of a document is usually impractical due to increased costs and storage requirements.

Evolving Case Law

Courts are still grappling with how to handle hyperlinked documents in eDiscovery. Different rulings have highlighted the evolving standards for this issue:

  • Nichols v. Noom, Inc. (March 2011): This case underscored that hyperlinked documents are not automatically considered attachments. The court recognized that hyperlinks in emails might not always convey necessary parts of communication, differentiating them from traditional attachments.
  • In re StubHub Refund Litigation (April 2023): In this case, the court ordered the production of linked documents as attachments, emphasizing the need for clear agreements in ESI protocols regarding the handling of hyperlinked documents.
  • In re: Uber Technologies, Passenger Sexual Assault Litigation (April 2024): The court required Uber to produce the contemporaneous versions of hyperlinked documents where feasible, highlighting the importance of accessing documents as they existed at the time they were shared.

Best Practices for eDiscovery Professionals

Given the complexities of hyperlinked documents, eDiscovery professionals must adopt proactive strategies:

  1. Early Identification: Recognize and categorize hyperlinked documents early in the eDiscovery process. Understanding the extent and nature of these documents can inform collection and review strategies.
  2. Technical Solutions: Utilize tools and technologies capable of handling hyperlinked documents across various platforms. Ensure these tools can download and preserve the content accurately.
  3. Clear Protocols: Establish clear ESI protocols with opposing parties specifying how hyperlinked documents will be treated. This can prevent disputes and ensure consistency in the discovery process.
  4. Continuous Education: Stay informed about evolving case law and best practices related to hyperlinked documents. Regular training and updates can help legal teams navigate new challenges effectively.

Plan Now to be Ready to Handle Hyperlinked Documents

The increasing volume of hyperlinked documents in ESI represents both a challenge and an opportunity for eDiscovery professionals. By understanding the unique aspects of these documents and implementing robust strategies for their management, legal teams can ensure comprehensive and defensible eDiscovery processes. As case law continues to develop, staying informed and adaptable will be key to successfully navigating this complex terrain.

Facing Hyperlinked Documents in a Discovery Project? Discover More.

Register to view the ACEDS webinar on demand: What’s the Hype about Hyperlinked Documents?

Read our FAQ on Hyperlinked Documents in discovery.

Contact ProSearch to ask a question or schedule a call with an eDiscovery expert.

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Ryan Hemmel

Ryan Hemmel

Ryan is a legal technology professional with 7+ years of experience (including project management). Well-versed in various platforms and environments including AWS, Relativity, MySQL, Oracle and Microsoft SQL Server, Ryan is also an aspiring data scientist with proficiency in Python, R and Tableau.