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Linked Content Strains E-Discovery Workflows
January 24, 2022
In March 2021, a U.S. district court judge made a significant ruling regarding the definition of hyperlinked content and the requirement to produce it in the context of other electronically stored information. In short, the judge determined, contrary to plaintiff’s arguments, that hyperlinked documents within emails, chat applications and cloud drives are not considered attachments. While this ruling was definitive and consistent with popular opinion in the e-discovery arena, it emphasized the uncertainty that is persistent among legal teams today regarding how uncommon data sources interact with traditional e-discovery workflows and requirements.
Non-traditional, nuanced and emerging electronically stored information (ESI) is seemingly endless. And while legal teams are barely keeping up with the pace of questions about discoverability and the collection challenges associated with collaboration, short-form and cloud-based data, they must also contend with an increasing range of review and production obstacles. Hyperlinked content is one of these “next-level” issues that we’re starting to see, and around which teams are likely to face, several complex legal and technical issues.
Even with the recent ruling that hyperlinked documents do not qualify as attachments, expect an ongoing debate. Not everyone agrees about what constitutes an attachment. One school of thought suggests that if a file is linked in a message, it is an attachment and therefore should be included in the pool of data that is collected and reviewed in relation to the relevant message. However, links don’t operate the same way attachments do. Not every recipient has access, or the same type of access, and linked content is not static. Variations and new versions are being created all the time. Sometimes a shared link is not one document but an entire folder, in which case teams must determine whether every item in the folder is in scope for collection and review.
The issue of access is particularly nuanced. In some systems, the primary interface for sharing links is in the system itself, so links are often sent as a notification within that system rather than a link copied and pasted into email. And each user who receives the link will have varying levels of access that restrict whether they may view, edit, download and/or share the file or folder. 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 certain period. This presents a significant preservation challenge. Does an organization have a duty to preserve something that was only activated for six months? How do existing governance protocols apply if the governance rules were set before this type of system came into use? 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? What is the time involved and the cost of doing so?
In addition to navigating access and version history challenges, it may also be difficult for responding parties to convince the opposing side that linked content isn’t relevant. By extension, ESI protocols and requests are likely to become more targeted to include any content hyperlinked in an email, document or message thread that comes into scope.
These issues will continue to present challenges for legal teams and e-discovery practitioners until a new context, definition and proportionality for linked content is set by the courts and industry standards groups.
Review presents another set of considerations. Technology assisted review (TAR) workflows are not equipped to ingest linked content, delineate it from other documents, and determine its relevancy as something other than a stand-alone document. Likewise, review platforms don’t currently have built-in tools to draw parallels between a collected message and a hyperlinked piece of content that was referenced within it, as they can with traditional attachments. In such circumstances, if linked content is loaded into the platform as an independent file, the review team must either create a workflow to “attach” the linked content to related messages, or else spend time manually reviewing and identifying connections.
One key problem with linked content is that the intent of the individual who sent the link is not always clear. The response of the recipient is similarly unclear. A recipient may not respond to a message containing a link, but rather may visit the link and comment directly within the file. To deal with this, data and e-discovery experts will need to create new workflows and capabilities that use segmentation and rendering to understand in a meaningful way how linked content interacts with the rest of a dataset. For teams that have not faced this issue before, these disruptions to standard e-discovery workflows could tip the scales of reasonableness in review time and cost.
The expansion of the data footprint to include a widely diverse universe of ESI has required legal teams to make judgment calls over issues with which they have no prior experience. And because technical challenges are so nuanced, there is a high risk that teams will make incorrect (and costly) collection, processing, review and production decisions. Understanding the medium at hand and investing early on in expertise and workflows to prepare for issues that can occur is the surest way to maintain efficient and effective e-discovery when linked content or another uncommon form of data is involved.
By Tim Anderson and Ryan Gaudet
Tim Anderson is a Managing Director in FTI Consulting’s Technology segment. He has more than 20 years of experience in legal technology and specializes in developing strategies for the preservation, collection, analysis, review and production of information stored in emerging enterprise data sources.
Ryan Gaudet is a director in the Technology segment at FTI Consulting. He has experience consulting with corporate legal departments, IT, compliance groups, outside counsel and government agencies for e-discovery, information governance and investigations.
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