Linked Content Presents Challenges in E-Discovery
Linked content—dynamic documents shared as links rather than attachments—are emerging among the latest areas of debate in how emerging data sources impact e-discovery. Not only are courts and discovery experts beginning to discuss whether hyperlinked content should be treated the same as attachments in production, but practitioners are also increasingly encountering the legal and technical challenges of collecting, analyzing and reviewing linked content in real world cases.
Case law is emerging as well. A recent U.S. court ruling determined that hyperlinked documents within emails, chat applications and cloud drives do not count as attachments. However, even with this, teams should expect opposing counsel and/or regulators to continue to pursue discovery requests for linked content. For example, 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, links don’t operate the same way that that attachments do. Not every recipient has access, or the same type of access, and linked content is not static—rather, numerous variations and new versions are being created all the time. Moreover, a shared link may be an entire folder rather than a single document—in which case teams must determine whether every item in the folder is in scope for collection and review.
This is a complicated issue with an array of nuances, but there are several key issues counsel should be aware of regarding linked content. These include:
- Access. In some systems, the primary interface for sharing links is in the system itself, so links are often sent as a notification within that system, rather than a link copied and pasted into email. And each user who receives the link will have varying levels of access that restrict whether they may view, edit, download and/or share the file or folder.
- Preservation. Links may only remain active for a certain duration, or user access may become invalid after a period. 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?
- Version history. Linked content is dynamic and ever changing. If a linked item is in scope in discovery, the legal team will need to determine which version of the document pertains to the discovery request, and how to delineate that from other versions during the collection process.
- Proving irrelevance. ESI protocols and requests are likely to become more targeted to include any content that his hyperlinked in an email, document or message thread that has come into scope. As this happens, legal teams will bear a heavy burden in arguing that certain linked items are not relevant to the matter.
- The web of senders, recipients, authors, collaborators and viewers becomes very complex and nuanced when dealing with dynamic documents, making it very difficult to determine who sent or contributed to what and when.
- Traditional e-discovery workflows and platforms are not yet able to “attach” a hyperlinked item to the related message within the review environment. 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.
To deal with these and other emerging challenges, data and e-discovery experts will need to create new workflows and capabilities that make sense of the many layers of how linked content interacts with the rest of a dataset. For teams that have not faced this issue before and do not have access to a resource experienced in emerging data sources, the disruptions to e-discovery workflows could tip the scales of proportionality in review time and cost.
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.