Modern Attachments in eDiscovery: An Overview

Cloud storage has added another layer of complication to eDiscovery. Both companies and legal professionals need reliable ways to deal with modern attachments.

Learn what a modern attachment is and how to preserve and transfer them for eDiscovery.

What Are Modern Attachments?

Alt Text: A businessman holding a tablet with information and modern attachments flowing from the screen.

Modern attachments are hyperlinked files within digital communications that point to items that reside within cloud-based storage platforms. While messages with traditional attachments send actual copies of a file to the recipient, a modern attachment connects the receiver to core files that the owner still controls within a cloud-based server.

Sometimes, you may see or hear someone refer to these as “cloud attachments.” Others prefer “electronic pointers” because these are not technically “attachments.” However, the expression “modern attachments” has stuck and is likely the one that most people will understand.

What Are the Benefits of Using Modern Attachments?

Modern attachments are more important than ever as teams collaborate online. Instead of sending file copies that colleagues can work on separately, a single file can serve as one source of truth.

Teammates can work on a file together in real-time. They can also come to a document individually and make adjustments, and contemporary cloud systems provide version control that records when and how changes occurred.

Another benefit is the speed and security of internal communications. Workers no longer have to send large files back and forth, which can tax a network’s resources or result in corrupted files. With a hyperlink performing the function of a modern attachment, messages on various platforms can be brief and leave the original file in a secure place.

What Are Some Examples of Modern Attachments?

Alt Text: A hyperlink to a document in Microsoft OneDrive is an example of a modern attachment.

Examples of modern attachments include hyperlinks within emails or communications platforms such as Slack or Microsoft Teams. The link lets recipients of the message access a document from its cloud location.

A basic illustration of this is a text document that resides in Microsoft OneDrive, Google Drive, or Dropbox. The owner or another authorized party can send a link to teammates who may simply be viewers of the document.

The document owner could also allow certain participants the ability to comment on the file or edit the actual document. These features allow the greatest level of collaboration but require policies on version control so that responsible parties can retrieve earlier iterations when necessary.

Of course, modern attachments go far beyond text documents and can include embedded multimedia. Teams can access and work together on videos, images, mockups, and projects containing all of these elements. Another important use of modern attachments is for digital signatures.

What Are the Legal Challenges of Modern Attachments in eDiscovery?

While modern attachments make file security and workplace collaboration much easier, various challenges arise when a legal team needs to review and admit these for eDiscovery.

File Formats

Traditional attachments have this same concern, but it remains with hyperlinks. Legal teams need to be able to access a file, examine it, and interpret its meaning in the context of a case, as well as make sure opposing counsel can do the same.

Access and Authentication

Alt Text: A key with a gearhead symbolizing access and authentication for modern attachments.

Over time, company team members, their roles, and their permissions can change. Links may expire. These situations aren’t just a challenge for everyday access; they also create challenges to assessing the authenticity of a modern attachment.

Compliance With Data Privacy Laws

Even as you make modern attachments discoverable, you still have to factor in data privacy laws. You may need to sift out specific files that are irrelevant or protected for other reasons. You also have to be ready to redact sensitive information or provide other safeguards with regulations that vary across the world.

Preservation of Metadata

The integrity of a hyperlinked file could come into question without the proper metadata. Your system for archival must make clear the authors, creation dates, and version history. Simple mixups can compromise high-quality evidence.

Evidence Spoliation

Poor data management could lead to the mishandling of modern attachments and accusations of spoliation. Such claims could also cause a court or investigator to throw out valuable information or even impose fines or other sanctions.

Lost Context

A big factor in legal issues and investigations is: Who knew what and when did they know it? Because hyperlinks connect to living documents, this can present difficulty in determining the context around a message in an email.

General Confusion

No discussion of modern attachments is complete without touching upon Nichols v. Noom Inc., a 2021 New York case that went against the pattern of treating modern attachments as part of the “family” of the messages they come from.

In the past, the courts generally expected embedded and linked files to be discoverable along with the original message. The Nichols ruling expressed that modern attachments are not like traditional attachments and trying to produce them could be burdensome.

However, legal experts continue to discuss the issue and how other judges will apply this precedent. Still, companies have to expect that modern attachments are discoverable and admissible and must prepare to use them as evidence.

How Do You Handle Archived Modern Attachments for eDiscovery?

Create policies that account for modern attachments in eDiscovery. If you’re in the process of migrating your archived emails from an on-premise system to a cloud-based solution like Microsoft 365, keep in mind the following points:

• Check that the data and attachments are compatible with the target cloud system, including the size of the archive and the file formats.
• Ensure that you can preserve the folder structure of emails and the metadata for your messages and their attachments.
• Make sure your cloud provider has strong security measures for the data at rest and in transit with compliant encryption.

The simplest and most cost-effective way to achieve these goals with archived files is with a specialized migration tool.

Because email solutions like Microsoft 365 are user-based and not object-centric, issues can arise around migrating archived files with modern attachments, including making your compliance reports and dashboard unreadable and sending false compliance alerts to your dashboard. The right migration technology and platform preserves your archived files and streamlines your workflows.

Manage the Migration of Modern Attachments With Expireon

Managing modern attachments can be either a headache or a straightforward process depending on the way you choose to deal with them. With help from our team at Cloudficient, businesses like yours can easily migrate to the cloud from legacy systems and take advantage of full digital transformation and modernization with scalable cloud-based solutions.

Find out more about how we can take the complexity and worry out of dealing with modern attachments by reaching out to our team today.