Peer to Peer: ILTA's Quarterly Magazine
Issue link: https://epubs.iltanet.org/i/1538025
P E E R T O P E E R M A G A Z I N E ยท S U M M E R 2 0 2 5 95 that point to content hosted elsewhere in cloud-based repositories. While these links can be external (pointing to data outside the organization's environment, stored on a provider's cloud) or internal (stored within the organization's cloud), the controversy around hyperlinks in ediscovery regards internal hyperlinks within an organization's cloud that point to collaborative documents shared via email or messaging applications. Hyperlinked documents are sometimes referred to as modern attachments, but this term is a misnomer, as they are not truly attachments. Hyperlinks are distinguished from traditional attachments as they are not stored in the same container. Often, parties attempt to refer to these documents as attachments under the Electronically Stored Information ("ESI") protocol or define hyperlinked documents as part of a family grouping. Both labels can give a false impression. LEGAL AND PROCEDURAL CONSIDERATIONS FRCP 26 and Proportionality. Federal Rule of Civil Procedure 26(b)(1) establishes that discovery must be proportional to the needs of the case, considering factors such as burden, cost, and the importance of the requested information. Proportionality has long been a foundational principle in ediscovery, concerning both meet-and-confer discussions and motion practice, guiding courts and parties to ensure that discovery obligations are tailored to the needs and complexities of each case. Producing hyperlinked content, especially in its functional and contextual form, can be not only technically burdensome but also expensive, especially if version history or user access logs are involved. Legal teams that can clearly articulate the technical limitations and operational burdens associated with hyperlink preservation and collection are better positioned to negotiate reasonable scope, avoid overreach, and advocate effectively before the court. EARLY CASE ASSESSMENT IS YOUR BEST PRACTICE Given the technical complexity and evolving legal landscape surrounding hyperlinked content, early and strategic assessment is essential. The deployment of Early Case Assessment (ECA) strategies, including thoughtful ESI protocol negotiation, meaningful custodial The controversy around hyperlinks in ediscovery regards internal hyperlinks within an organization's cloud that point to collaborative documents shared via email or messaging applications.