The Missing Links in Modern E-Discovery

Productivity suites like Microsoft 365 and Google Workspace have transformed the ways in which people collaborate across and share projects at work. They are also upending traditional expectations, case law and processes in e-discovery. The dynamic, cloud-based nature of today’s workplace platforms has spurred an array of complex data challenges around how electronic information is collected, processed, analyzed, reviewed and produced for litigation and investigations.

 One particularly difficult challenge in this environment is the issue of linked content (files that are shared as links rather than as traditional attachments). Not too long ago, static attachments were the only viable method for sharing files between individuals and teams. Today, though, items are shared via email and chat messages as these dynamic links with unique and widely varying permissions for creators, editors and viewers. As linked content increasingly replaces traditional attachments in everyday work, legal professionals will grapple with how to address the e-discovery ramifications. 

While the issue of whether linked content will be treated the same as attachments in the courts is yet to arise in Irish legal proceedings, there have been some early cases around this issue in the U.S. In one of the first rulings on this matter, in 2021, a U.S. district court judge found that hyperlinked documents did not qualify as attachments. Other more recent rulings have shown a continuation of this debate, with arguments for and against, spanning proportionality, reasonableness and relevance. 

These issues may come into play in Ireland in the near future, and legal teams should expect lively debate. As has been seen in the U.S., not everyone agrees about what constitutes an attachment. One school of thought suggests that if a file is linked in a message, it was intended or sent as an attachment, and therefore should be included in the pool of data that is collected and reviewed in relation to the relevant message. However, linked content doesn’t operate the same way that that attachments do, and there is significant technical complexity in collecting and validating details about it that might inform case facts.

For example, not every recipient has access, or the same type of access to linked content, and the intent of the individual who sent the link is not always clear. The response of the recipient is similarly unclear (a recipient may not respond to a message containing a link, but rather visit the link and comment directly within the file). Also, because these files aren’t static, but rather span numerous variations and new versions are being created all the time, it’s difficult to pinpoint which version or group of versions are relevant to a matter. Shared links may also represent an entire folder of files — and in an e-discovery context, this would require the case team to  determine whether every item in the folder, or every custodian who had access to it, was in scope for collection and review.

Links are also often generated with time restrictions — a link may only remain active for a certain duration, or user access may become invalid after a period. This presents a significant preservation challenge — does an organization have a duty to preserve something that was only activated for six months? How do existing governance protocols apply if the governance rules were set before this type of system came into use? And even if the legal team is able to preserve a linked item, how does counsel align the version history with the messages that included the links and the custodians’ varying access permissions to uncover facts during review? More, what’s the time and cost of doing so?

Review presents another set of considerations. Technology assisted review (TAR) workflows are not equipped to ingest linked content, delineate it from other documents and determine its relevancy as something other than a stand-alone document. Likewise, review platforms don’t currently have built-in tools to draw parallels between a collected message and a hyperlinked piece of content that was referenced within it like they can do with traditional attachments. In such circumstances, if linked content is loaded into the platform as an independent file, the review team must either create a workflow to “attach” the linked content to related messages, or else spend excess time manually reviewing and identifying connections. 

Our global team has faced these exact issues numerous times, including during a recent competition and price fixing investigation. The client was required by regulatory authorities to collect, review and produce documents from numerous cloud-based, or emerging, data sources, including Google Workspace. The entirety of the organization’s communications and documents were cloud-based, and many documents in scope in the matter were dynamic, shared documents with multiple versions that were created, accessed, revised and shared by numerous employees with varying levels of permissions. Also, when documents were included with emails or chat messages, they were typically sent as a hyperlink rather than a traditional attachment. This fluid environment added several e-discovery challenges, including matching linked content within communications with the associated document.

The expansion of the data footprint to include a widely diverse universe of cloud-based documents has placed legal teams in a position of making judgement calls over issues with which they have very limited prior experience. Further, because the technical challenges are so nuanced, there’s a high risk that teams will make incorrect (and costly) collection, processing, review and production decisions. Understanding the medium at hand and investing early on in expertise and workflows to prepare for and address issues will be critical when handling e-discovery matters involving linked content or other forms of emerging data. 
 

The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.