Modern attachments have garnered a lot of attention. See, e.g., More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”. and T. Thames, Modern attachments and eDiscovery: Navigating the complexities of linked documents (onna.com)
Most of that attention has been focused on what I call the “Humpty Dumpty” issue – – when must a producing party re-link the so-called “modern attachment” or target with the “pointer” or hyperlink? Must it be done for none, some, or all of the produced, hyperlinked documents? Does it apply only to email, or also to web pages?
My blogs have also focused on use of the “partial” documents in motions and at trial. If the “modern attachment” or target is not produced with the pointer, is the pointing document a complete document for admissibility? And, is it fair to question a witness on a partial document?
Doug Austin has published a number of excellent blogs on hyperlinked documents, as has Kelly Twigger.
Doug’s latest blog is Admins in Google Vault Can Now Export Hyperlinked Google Drive Content from Gmails (ediscoverytoday.com) (Dec. 13, 2023). Doug reports that: “Admins in Google Vault can now export hyperlinked Google Drive content from Gmail messages!” He also points to some shortcomings:
Of course, I know some of you are saying: “But the file pulled from Google Drive may be a different version than the one that was sent!”. Certainly true, but let’s try to climb one mountain at a time, shall we? 😉
Doug adds: “Regarding the hyperlinked files as modern attachments issue, I expect the continued evolution of the technology will change the considerations associated with it. What may not be possible (or at least easily done) today could be highly possible in the future.”
UPDATE Dec. 22, 2023: See D. Austin, Proposed Language for Hyperlinked Files in ESI Protocols (ediscoverytoday.com). Doug’s suggested ESI Protocol language is reprinted below; however, the full blog is worth reading:
Hyperlinked Files. Hyperlinked files (1) within any responsive email or other collaborative communication within the possession, custody and control (2) of the producing party will be produced and cross-referenced to the communications from which they are linked, either by treating them as a parent-child relationship or via metadata that identifies the link between the communication and the hyperlinked file. For any hyperlinked files that are no longer available, the producing party will provide an exception report to identify those files (3). If the exact version of any hyperlinked file is no longer available, the producing party will produce the closest available version of that file after the date/time of the exact version. If the producing party is unable to meet any of these requirements due to technical challenges, it will request to meet and confer with the requesting party to discuss alternatives that will be proportional to the needs of the case. (5)