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For example, presenting a later version of a document
to a witness during a deposition does not accurately
reflect what the witness knew at the time of the event.
The version shown may include different information
or language from what the witness initially viewed as
part of the email.
Coordinate with your client's IT department.
Because this area of technology is continually evolving,
it is essential to maintain regular communication with
your client's IT department. Even when a system has
the technical capability to capture contemporaneous
versions of linked documents, that functionality may
not be enabled due to concerns about data volume
or organizational policy. Not all users within the
organization may have the same level of access
or functionality. Importantly, once such capture
capabilities are activated, they typically apply only
to communications made after the activation date.
Additionally, the ability to collect contemporaneous
versions of linked content may vary depending
on the type of communication or file format. To
properly advise and negotiate, you must have a clear
understanding of both the capabilities and limitations
within your client's environment.
ESI protocol – definitions matter.
While gathering information through custodian and
IT interviews to understand your client's systems, it is
best practice to avoid stipulating an ESI protocol that
requires hyperlinked files to be defined, collected, or
produced, as this is similar to traditional attachments.
Unlike traditional attachments, hyperlinked files are
often not embedded within the original message and
may exist independently in cloud-based systems,
lacking self-contained metadata. This disconnect can
give rise to disputes over scope, production format, and
accessibility, especially when links point to content
that has been modified, moved, or deleted before legal
holds or preservation measures are implemented.
A growing body of case law recognizes the significant
practical and technological distinctions between
traditional email attachments and hyperlinks.
(Nichols vs. Noom, 2021 WL 948646, at *4 (S.D.N.Y.,
Mar. 11, 2021). Notwithstanding this judicial trend,
parties who agree to treat hyperlinks as equivalent to
attachments within an ESI protocol risk having courts
enforce the protocol as written. Such deference can
lead to unintended discovery obligations, delays, and
increased costs for clients. The courts assume you are
best positioned to agree to the terms of an ESI protocol
based on your knowledge of your client's data systems
and abilities and will therefore tend to defer to the
agreement, at least initially, as a matter of course. For
example, in In re Stubhub, in considering a Defendant's
Motion to Modify the ESI protocol and Plaintiff's Motion
for Sanctions for violating the same ESI protocol, the
court noted "the harm that StubHub's wrongful conduct
caused was a big, expensive fight that lasted more
than a year concerning the hyperlink issue. But this
harm wasn't caused by the violation of the ESI Order; it
was caused by StubHub's foolish decision to stipulate
to the hyperlink requirement in the first place." (In re
Stubhub, 2024 WL 2305604, at *4 (N.D. Cal, May 20,
2024))
Leverage knowledge to meet and confer.
ESI protocols should reflect a willingness to negotiate
a reasonable scope and format for the preservation,
collection, and production of hyperlinked files.
Emerging technologies that create a greater burden to
meet discovery obligations and respond to production
requests in a defensible manner will lead the parties
to examine the level of burden. Hence, preparation
