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:
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.
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Managing Director, FTI Consulting
Senior Director, FTI Consulting