“Modern Attachments,” ESI Protocols, & Second Chances

UPDATE (Aug. 3, 2023):  See Doug Austin, Hyperlinked Documents and Email Threading Disputes Addressed by Court (ediscoverytoday.com)(Aug. 2, 2023), discussing In re Meta Pixel Healthcare Litig. (N.D. Cal. June 2, 2023)(“Accordingly, the ESI protocol should make clear that hyperlinked documents are not treated as conventional attachments for purposes of preserving a “family” relationship in production. However, the Court anticipates that for some documents, it will be important to collect (or attempt to collect) hyperlinked documents and associate them with the underlying ESI in which the links appear. In such circumstances, the parties should consider reasonable requests for production of hyperlinked documents on a case-by-case basis. Such requests should not be made as a matter of routine.”).

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The parties in In re StubHub Refund Litigation, 2023 WL 3092972 (N.D. Cal. Apr. 25, 2023), agreed to an ESI protocol that was incorporated into a court order.  The protocol called for “modern attachments” to be produced with the parent email.  StubHub failed to do so and also failed to request relief from the court.  The court wrote that StubHub’s explanations felt “incomplete and improvised.”  Id. at *2. It essentially ordered StubHub to perform or explain its methodology in a deposition of its corporate designee.

However, the court also gave StubHub a second chance to request relief from the court-ordered ESI protocol, if performance was “impossible.”

Second Chances & Private Roswell McIntyre

Private Roswell McIntyre was drafted into the 6^th New York Cavalry during the Civil War.  He was not well trained and, in battle, he panicked and ran.  He was court martialed and sentenced to death.

McIntyre’s mother wrote to President Lincoln asking for mercy.  She said he was young and inexperienced.  She asked for a second chance.

The Generals opposed the request.  They said that if the sentence was not carried out, others would also run from battle.

Nevertheless, President Lincoln sent a letter pardoning Private McIntyre.  He said that “I have observed that it never does a boy much good to shoot him.”  The President’s letter readmitted McIntyre to the New York cavalry and stated: “When he serves out his required enlistment, he will be freed of any charges of desertion.”

The President’s letter is on display in the Library of Congress.  It was taken from Private McIntyre’s body after he fell at the battle of Little Five Forks, VA.

Having been given a second chance, Private McIntyre served with honor.

Perfection is Not the Standard for Reviewing an ESI Protocol

There is one thing that everyone – courts, lawyers, and litigants – agree on.  Perfection is not the standard for reviewing ESI issues. See, e.g., What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?” (July 15, 2011), citing authorities.

Reasonableness and proportionality are always important considerations.

In short, “[t]he goal of our system of justice is fairness, not perfection. We live in an imperfect world and it is unrealistic to expect perfection in the courtroom.”  Gould v. Charlton Co., Inc., 929 S.W.2d 734, 739 (Ky. 1996)(discussing jurors).  Thus, “[s]ometimes, despite everyone’s best efforts, mistakes are made during the course of a trial. We visit an endless array of trial errors with a paradigm that looks for fairness rather than perfection. We do not expect perfection.”  People v. Biggerstaff, 287 Ill.App.3d 813, 818, 679 N.E.2d 118, 121 (1997);  accord Bush v. Gore, 531 U.S. 98, 143 (2000)(“we live in an imperfect world. . . .”)(Ginsburg, J., dissenting)(Presidential election);  R. Losey, “Winning isn’t everything, it’s the only thing” (“Perfection is not attainable, but if we chase perfection we can gain excellence.”).

“[T]he perfect is the enemy of the good,” P. Grimm, L. Bergstrom, and M. Kraeutter, “Federal Rule of Evidence 502: Has It Lived Up To Its Potential?,” 17 Rich.J.L. & Tech. 13, 41, quoting Voltaire Quotes, Famous Quotes.

The StubHub Decision

The StubHub court wrote:

“This order is about agreements. Without them, courts would have to rule on everything, and litigation would be even more expensive than it already is. Courts encourage parties to work out things like ESI protocols and other procedures governing discovery. We do this because we assume that the parties have some idea what they want to obtain in discovery, they know much better than the Court does what is possible or feasible, and they are best able to estimate the costs involved in whatever they agree to do. And when parties reach an agreement, we ordinarily need to hold them to it. Otherwise, if discovery agreements routinely turn out to be worthless and unenforceable, we deprive the parties of any reason to enter into them.”

The court added:

“Let’s get back to basics: Litigants should figure out what they are able to do before they enter into an agreement to do something. Litigants should live up to their agreements, especially when they are embodied in court orders, as the ESI Protocol is here. And if for some reason, a party learns that a so-ordered discovery agreement has become impossible to comply with, the party should promptly move for relief, with a good showing that despite its best efforts, compliance is impossible. In this case, StubHub has decided to do ‘none of the above.’ Its document production is in violation of the ESI Protocol, StubHub hasn’t done everything it could, it hasn’t moved for relief from the protocol, and it hasn’t settled on a clear story for why producing the linked documents can’t be done.”

The court ruled:

“The Court concludes the best option is to hold StubHub to its agreement, which Judge Gilliam so-ordered. If StubHub is unable to live up to its agreement, then within 14 days after the deadline to complete document production, StubHub must provide a Rule 30(b)(6) witness with full knowledge of everything StubHub and its vendors did in an attempt to produce linked documents as attachments. After that deposition, Plaintiffs can decide if they have a good sanctions motion or not. This order is without prejudice to StubHub moving to modify the ESI Protocol.” [emphasis added].

The court distinguished Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. March 11, 2021), noting that – unlike the protocol in Nichols – the Stubhub ESI protocol expressly addressed “modern attachments” and StubHub failed to perform as promised.

ESI PROTOCOLS & THE NEED FOR A REASONABLE ESCAPE HATCH

The StubHub court wrote: “[W]hen parties reach an agreement, we ordinarily need to hold them to it. Otherwise, if discovery agreements routinely turn out to be worthless and unenforceable, we deprive the parties of any reason to enter into them.”  It added: “And if for some reason, a party learns that a so-ordered discovery agreement has become impossible to comply with, the party should promptly move for relief, with a good showing that despite its best efforts, compliance is impossible.” [emphasis added]. And, “If StubHub is unable to live up to its agreement,” it must provide a corporate designee for deposition. [emphasis added].

The StubHub court provided an escape hatch; however, in my view, “impossibility” or “inability” is too high a standard for relief from a court-ordered ESI protocol.

In In Re Fannie Mae, 552 F.3d 814 (Fed. Cir. 2009), OFHEO’s attorneys agreed to a discovery deadline.  Their client undertook extensive efforts to comply, but failed.  The client spent more than $6 million, which was 9% of its annual budget, and was still held in contempt.  The Federal Circuit wrote: “OFHEO has treated its Court-ordered deadlines as movable goal posts and has repeatedly miscalculated the efforts required for compliance and sought thereafter to move them.”  I suggest that is not a sound result.

Clarity is important.  The StubHub court squarely noted that it was not enunciating an invariable black-letter rule of strict enforcement of ESI protocols.  For example, and without limitation, it used the word “ordinarily.”  Further, it pointed out that StubHub – inexplicably – had not moved for relief.  As such, there was – and is – an escape hatch.

But, relief would be available only if performance is shown to be “impossible.”  I prefer the phrasing in I-Med Pharma: “While courts should not casually disregard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.”  See Sanctions Denied, But Be Careful What You Agree To (Part I).  The I-Med Pharma court held that discovery orders are interlocutory and afforded some relief in the interests of justice.

I suggest a lesser balancing standard than “impossibility” of performance.  That standard would incorporate proportionality factors.  In my view, a showing of “good cause” or “cause,” should be sufficient to modify an interlocutory order that approves an ESI protocol or discovery plan.

“An interlocutory order is subject to reconsideration at any time prior to entry of a final judgment. … Further, it is within the court’s inherent discretion to review an interlocutory order for reconsideration at any time prior to the entry of a final judgment – whether on motion of a party or sua sponte.”  Gunter v. Alutiiq Advanced Sec. Sols., LLC, 2023 WL 2330707, at *7 (D. Md. Mar. 2, 2023)(cleaned up), appeal pending.  “A district court retains the power to reconsider and modify an interlocutory order at any time before final judgment.… Resolution of a motion to reconsider an interlocutory order is committed to the discretion of the district court, … with the goal … to reach the correct judgment under law.”  Rybas v. Riverview Hotel Corp., 2015 WL 11027598, at *2 (D. Md. Feb. 4, 2015)(cleaned up).  Fed.R.Civ.P. 54(b), while it may be narrow in the Fourth Circuit,[1] states: “[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” [emphasis added].

I suggest that a court-ordered ESI protocol is an interlocutory order that is always subject to reconsideration.  Further, good drafting of a protocol or discovery plan should provide an escape hatch.  Id.; see Sanctions Denied, But Be Careful What You Agree To (Part I).  Here, StubHub failed to exercise available options.[2]

THE INFORMATION GOVERNANCE QUESTION

There is another consideration.  StubHub and Nichols, as well as the decisions I cited in What Hath Noom Wrought? and “Modern Attachments” or “Pointers”- What is a Document? (Part IV), show that the absence of modern attachments, or “links” and “targets,” presents a number of concerns in addition to discoverability.  Their absence may raise evidentiary issues under the rule of completeness[3] and spoliation issues[4] because the target file may no longer exist when the email is produced or because it may have been edited after it was sent.

There are advantages to using hyperlinked documents.  They reduce storage space and avoid the problem of “competing drafts” when there is simultaneous editing.  Major software companies would not offer them if they had no value.

However, from an information governance perspective, in light of the emerging caselaw, businesses may want to re-think whether “modern attachments” are a prudent management policy.  Discovering parties will often request production of the modern attachment with the parent email.  This may impose costs on the producing party.  Craig Ball wrote: “To paraphrase Abraham Lincoln, you cannot murder your parents and then seek leniency because you’re an orphan.”[5]

Whether re-linking costs will exceed the software savings is a question I can’t answer.  But, it bears consideration.  Further, there may be authentication questions if a producing party re-links a “target” to the transmitting email.  How can anyone be reasonably sure that the re-linked document is identical to the prior target?

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE: See Ask an expert: Unpacking eDiscovery implications tied to modern attachments or ‘pointers’ | Onna Technologies, Inc. – JDSupra (Jul. 27, 2023).

UPDATE June 15, 2023 – see Jason L. Covey, Modern Attachments in M365 eDiscovery: How Much Do They Really Matter? A Practical Assessment of the Significance of Modern Attachments in M365 eDiscovery from HaystackID® | EDRM – Electronic Discovery Reference Model – JDSupra   (June 12, 2023).  “Teams unleashed the widespread usage of so-called ‘modern attachments’ (also referred to as ‘cloud attachments’ in certain areas of Microsoft’s documentation and UIs)….  A central purpose of modern attachments (as with Google Drive document hyperlinks familiar to Gmail users) is to provide enhanced security access controls down to the document level to better address data security, privacy, loss prevention, etc. Although an essential pursuit in the age of data breaches and expanding privacy legislation, the net results collide with the long-established obligations of eDiscovery – disclosure, completeness, process transparency, and defensibility….  An important distinction for practitioners to consider with collecting data types that include modern attachments involves applicable Microsoft licensing and the divergent technical capabilities between the resulting eDiscovery tools – Microsoft Purview eDiscovery Standard or Premium.”  Among other things, Mr. Covey suggested that:

• “Wherever possible, modern attachments should be collected from the outset in order to avoid potentially negative consequences that are very difficult to correct after the fact.

• In most situations, the marginally higher costs and time needed to collect modern attachments from the outset are offset by the benefits of dramatically reduced risk and improved defensibility.

• When Premium eDiscovery licensing is unavailable in a client’s M365 tenant environment, communicating the potential for incomplete collections to preempt potentially negative consequences is now imperative for practitioners.”

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[1] Norris v. PNC Bank, N.A., 2022 WL 5054099, at *5 (D. Md. Oct. 4, 2022).

[2] Additionally, I have heard discussions where members of the defense bar suggest that they prefer to not have an ESI protocol incorporated into a court order.  The theory is that violation of an unincorporated protocol is less likely to result in sanctions than violation of a court order and it is easier to modify an agreement than an order.  While I disagree with that analysis, see Should an ESI Protocol Be Incorporated Into a Court Order?, that concern may be a consideration when the court takes a strong enforce-the-agreement position.

[3] See, e.g., Pending Amendments to the Federal Rules (discussing pending amendment to Fed.R.Evid. 615).

[4] Tom O’Connor has pointed to potential preservation or spoliation issues. Are Hyperlinks the same as Attachments? Judge Parker opinion Nichols v. Noom (digitalwarroom.com).

[5] Can a Producing Party Refuse to Produce Linked Attachments to E-Mail? | Ball in your Court (craigball.net)