Making Slack Slack-ier: Expireon's Intelligent eDiscovery and Retention
Slack's Enterprise Grid is a powerful tool, but on its own, not enough to protect your organization's legal interests. Explore how to enhance the...
I know what you are thinking – Oh, goody! Another blog about hyperlinked files (or “modern attachments”). I was in ...
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 legal discovery, particularly in industries where compliance and litigation are frequent concerns.
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:
However, the convenience and flexibility of hyperlinked files come at a cost regarding legal compliance, especially during eDiscovery processes.
Legal discovery requires that all relevant documents be preserved in their original form, including emails and their attachments, as well as attachments within communication 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 version of the file to be part of litigation 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 v Noom touched on the subject of file versions or revisions but a decision wasn’t made as the hyperlinked files were not part of that litigation.
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 in a legal case 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 proportionality, the court seeks 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.
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:
*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.
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:
Expireon offers a next-generation solution that addresses the complexities of hyperlinked files in legal discovery. Unlike traditional tools, Expireon is designed with advanced capabilities to handle the nuances of modern attachments:
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. For organizations dealing with frequent litigation or regulatory inquiries, 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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