I know what you are thinking – Oh, goody! Another blog about hyperlinked files (or “modern attachments”). I was in downtown San Francisco visiting a partner when I mentioned the complexities of managing “modern attachments” for forensic eDiscovery collections. I was told not to utter those words within that office and to put a dollar in the “modern attachments” jar in the corner. For this reason, I will refer to them as hyperlinked files going forward!

Our discussion that day centered around how the digital transformation of workplace collaboration has introduced numerous innovations that boost efficiency but also pose new challenges for legal and compliance teams. One such innovation is the rise of hyperlinked files—links to cloud-stored documents that replace traditional file attachments in emails and other communication and collaboration platforms. While hyperlinked files simplify file sharing, they also introduce complications in eDiscovery, particularly in industries where compliance and litigation are frequent concerns.

What are Hyperlinked Files?

Hyperlinked files are URLs embedded in emails, documents, or collaboration platforms that direct users to cloud-stored content. Instead of attaching a file directly to an email, users share links to files stored in platforms such as OneDrive, SharePoint, Google Drive, or other apps. This offers several benefits:

• File size limitations are bypassed.
• It promotes collaboration with real-time editing.
• It simplifies version management since everyone accesses the same file.

However, the convenience and flexibility of hyperlinked files come at a cost regarding legal compliance, especially during eDiscovery processes.

The Issues with eDiscovery and Hyperlinked Files

In eDiscovery, all relevant ESI (electronically stored information) must be preserved in its original form including, but not limited to, emails and their attachments as well as attachments within communication and collaboration platforms.

There are, of course, differing views about what is a true “attachment”. Potentially more important, there are differing views about what is considered “relevant”. The “relevant” portion swings the conversation from “What truly is an attachment?” to “What version of the file is truly the one that is relevant?”.

When it comes to the former (what is an attachment?) there have been cases that have determined that hyperlinked files should NOT automatically be considered attachments for the purposes of eDiscovery (Nichols v. Noom).

Other cases, such as StubHub Refund Litigation, originally ruled that hyperlinked files are relevant and should be collected. The ESI order was later amended to remove the requirement to treat hyperlinked files as attachments, finding that it was unduly burdensome and technologically infeasible to comply with the original ESI protocol.

The relevant version of the file isn’t quite so clear and isn’t quite as easy to retrieve. Most cases to this date have seen arguments for and against collecting hyperlinked files in general. Nichols touched on the subject of file versions or revisions but the court did not offer an opinion on this issue.

Proportionality and Burden of Retrieval

There have been so many blogs and webinars on hyperlinked files lately, mostly due to conversations around technology challenges related to collecting and storing hyperlinked files based on the legal principle of proportionality under Rule 26(b)(1) of the FRCP.

The legal principle of proportionality under Rule 26(b)(1) of the Federal Rules of Civil Procedure (FRCP) requires that discovery be balanced in scope and burden. It mandates that the information sought in discovery must be relevant to the claims or defenses and proportional to the needs of the case. To determine proportionality, courts weigh several factors, such as the importance of the issues at stake, the amount of data in controversy, access to relevant information and resources, the importance of resolving the issues, and whether the burden or expense of the discovery outweighs its benefit.

In practice, this principle aims to prevent excessive or unduly burdensome discovery requests that are not justified by the potential benefit to the case. By applying this standard, courts seek to ensure fairness in the discovery process, promoting efficiency and reducing unnecessary costs and delays. This balance helps litigants focus on obtaining critical information without imposing an unreasonable burden on the opposing party.

Technical Challenges in Collecting Hyperlinked Files

Many legal experts are now advocating for specifying the treatment of hyperlinked documents in ESI protocols upfront. This can avoid complications later on, as referenced in ‘Stubhub Refund Litigation,’ as courts increasingly require the inclusion of hyperlinked files as part of discovery.

When planning the discovery of ESI protocols, understanding the unique challenges of hyperlinked files is paramount. Some of the typical issues related to the collection of hyperlinked files include:

• Lack of Contextual Capture: When traditional file attachments are used, the file is preserved exactly as it was at the time the communication was sent. However, with hyperlinked files, only the URL is captured in the communication, leaving the actual document content unpreserved unless manually collected. This poses a significant risk if the document is altered or deleted before discovery, potentially leading to spoliation, especially if the collection process only retrieves the current file version rather than the original.
  
  
• Dynamic Nature of Hyperlinked Content: Unlike traditional attachments, Hyperlinked files can be updated or changed over time. By the time an eDiscovery or compliance process begins, the content of a hyperlinked file may have evolved, making it difficult to capture or review the document's active version when it was first shared. This evolving nature of hyperlinked content introduces complexity in ensuring the correct version is preserved for legal purposes.
  
  
• Metadata Loss: During review, it is often necessary to assess file metadata (such as creation date, last modified date, or the author). Hyperlinked files risk losing or altering this important metadata, making it difficult to ensure data authenticity and integrity.
  
  
• Versioning: Cloud platforms enable continuous editing and versioning of documents, which is great for collaboration but challenging during collection. Legal teams must be able to trace each document version and determine which was relevant at a specific time. Tracking and presenting these versions becomes problematic ​​without proper tools.
  
  
• Retention Policies: Many organizations have retention policies to ensure documents are kept for compliance reasons for a set period. Hyperlinked files complicate retention management because cloud-stored documents are often subject to the platform's retention rules, which may not align with corporate policies for communications or categories of business records. This creates a risk of premature deletion or over-retention, both of which are liabilities for organizations dealing with legal proceedings.

*IMPORTANT NOTE:

The first two bullet points above may sound similar, but there is a key differentiator regarding the file's contemporaneous version. The contemporaneous version of a file means the version of the file as it appeared at the time of the communication. This would be the physical attachment to the email in traditional email communication.

The second bullet point deals with how the file has changed since the communication occurred. Because most collection tools and processes take place after the file has been altered, the current version of the file (at the time the collection happens) is the file that is collected, making it difficult to collect the contemporaneous version of the file. This becomes important where noncustodial or shared data sources are being collected.

How Legal Teams Are Managing Hyperlinked Files Today

Without a dedicated solution like Cloudficient Expireon, legal teams must take multiple steps to handle hyperlinked files during eDiscovery. These efforts, however, tend to be inefficient:

• Manual Capture of Linked Content: Legal teams must manually download and save every document linked via URL. This process is time-consuming, especially when multiple versions need to be captured. Without a method for identifying all communications with hyperlinks, they must be retrieved as they are encountered during review, increasing the risk that the original document has been modified or deleted.
  
  
• Relying on IT for Compliance Checks: Due to the difficulty of attempting to capture multiple versions, legal teams must rely on IT to determine relevant data from metadata and then collect data manually by referencing document IDs. This creates additional overhead and delays, as IT must sift through backups or cloud storage logs to find relevant files​.
  
  
• Using eDiscovery Tools with Limitations: Some organizations rely on third-party eDiscovery collection tools. While these tools attempt to capture links, they often fail to retrieve the actual file or its metadata at the point of transmission, especially if the content has been altered post-communication. Most of these tools will capture the current version of the linked file rather than the contemporaneous version at the time the message was sent. Even more challenging is to attempt to retrieve the file referenced by the hyperlink if the eDiscovery tools are being managed and hosted by a third party outside of the organization's security boundaries.

Introducing Expireon: A Purpose-Built Solution for Hyperlinked Files

Expireon offers a next-generation solution that addresses the complexities of hyperlinked files in ediscovery. Unlike traditional tools, Expireon is designed with advanced capabilities to handle the nuances of hyperlinked files:

• Snapshot Capture: Expireon automatically captures a snapshot of the hyperlinked file at the time the communication is sent. This ensures that the contemporaneous version of the document, along with its metadata, is available for future legal review​.
  
  
• Version Control and File Revisions: Expireon stores the contemporaneous version of the linked file at the time a communication was sent and can fetch and store prior versions of the file if desired.
  
  
• Retention Alignment: Expireon allows organizations to enforce retention policies across collaboration content and linked content. This ensures that files are retained according to company policy, even if they were linked from external platforms like OneDrive or SharePoint​​.
  
  
• Seamless Legal Hold Preservation: When a legal hold is required, Expireon ensures that all relevant documents, including hyperlinked files, are preserved in their exact form, safeguarding against data alteration or deletion​.

Why Expireon is the Solution Legal Teams Need

Expireon provides legal teams with an efficient, scalable, and defensible solution for managing hyperlinked files. Its unique ability to capture, track, and retain hyperlinked content in a legally compliant manner drastically reduces the risk of spoliation, ensures metadata integrity, and simplifies the discovery process. Expireon streamlines the entire eDiscovery workflow, saving time, and resources, and ensuring legal defensibility​.

In a world where cloud collaboration is the norm, Expireon is the tool that legal teams need to stay ahead of modern discovery challenges.

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