If you aren’t already confused about whether hyperlinked files or “modern attachments” are discoverable, read on for a brief explanation of what they are – communications that perhaps should not be called “attachments” at all. 

What are Hyperlinked Files? 

Hyperlinked files are documents, images, and other files not directly attached or embedded into an email but instead “linked” by a URL embedded in the email. When a user clicks on the embedded URL, they are directed to a file stored separate from the email – typically on a cloud server. For example, Microsoft Teams hyperlinks can “point” to data stored in SharePoint; and Google email hyperlinks can “point” to Google Drive. Hyperlinks reduce data volumes in enterprise systems, simplify data storage for the user – although they might complicate storage architecture for the administrator – and ease burden on email systems, so they are great for productivity, but for eDiscovery? Not so much.

One of the questions the courts are struggling with is whether to even call these “attachments” at all, and if so, whether the same eDiscovery duties to preserve, collect, and produce traditional email “attachments” should apply to hyperlinked data. When a person creates a document or email with a hyperlink, there are new challenges associated with forensically collecting the hyperlinked information. In that sense, hyperlinked data is different from what we all think of as email “attachments.” And just as importantly, the court decisions evaluate the potentially disproportionate efforts required to collect hyperlinked data. 

Specifically, the Courts have agreed that eDiscovery lacks commercially available, automated, and reliable technology solutions that can collect them with reasonable forensic rigor. Ensuring the correct version of the hyperlinked data that was sent at the time the message was sent, i.e., maintaining the correct “family relationships” is a particular pain point, but there are other challenges to even accessing the linked data. Thus, although traditional email “attachments” have typically been treated like paper attachments, hyperlinked data are different and require different analysis.

Importantly, the factual considerations and questions raised by hyperlinked data are changing as eDiscovery and forensic technology developers continue to work on solutions, so what might be impossible or disproportionate today might be possible in the future. For now, there is a fairly clear trend, and the Courts are generally concluding that hyperlinks are not the same as attachments and do not have the same requirements under eDiscovery rules.

Productivity vs. eDiscovery

The challenge of hyperlinked data is not new for eDiscovery teams. When Instant Messaging (IM) was first introduced to corporate teams, the messages could be preserved. However, there were widespread questions whether the law required them to be preserved. Similarly, as litigants first contended with the challenge of disaster recovery backup tapes, eDiscovery teams also had to evaluate whether collecting data from backup tapes was proportionate. In both instances, the courts stopped short of across-the-board requirements to preserve and collect the data. 

Hyperlinking data, like Instant Messaging tools and disaster recovery solutions, was designed to improve productivity, not meet eDiscovery requirements. Efforts to improve productivity continue at an even faster pace today – today’s largest technology companies’ core business goal is to make people more productive. Newer productivity tools like Google Workspace, and M365 focus on making people more productive and able to easily collaborate, reducing storage space for email mailboxes and chat data repositories, and offering greater control regarding access. However, those considerations are often inconsistent or even adverse to eDiscovery needs. 

eDiscovery professionals must have full access to the correct version of messages and hyperlinked data that line up with the version of the data that was linked to a message. They typically need that access after the message was sent and litigation requires the need to collect potentially relevant information.

Hyperlinked Files: Attachments, or Not?           

How have Courts been handling modern attachments? Compare the Noom decision issued in 2021 with the most recent rulings issued in Uber (2023) and Meta (2024): 

• In Nichols v. Noom Inc. This Court ruled that hyperlinks are different from attachments, although they can have critical evidentiary value, and in those cases, need to be produced. However, the Court made no across the board requirement to produce them all or preserve the metadata in connection with them.
• In re Meta Pixel Healthcare Litigation. This case held that in eDiscovery production, hyperlinked documents should not be treated as conventional attachments for the purposes of preserving a “family” relationship. However, they might be important to produce in instances where parties could ask that certain documents be produced with the emails as a family.
• In re Uber Technologies, Inc. Passenger Sexual Assault Litigation. This Court held that links could be defined as attachments to emails such that the metadata needs to be preserved for family relationships. Judge Cisneros focused on the potential evidentiary value of the hyperlinked data and its capability to prove what people knew and when they knew it. However, the court also noted there is no automated way to produce and collect this data on a systematic basis, and production would have to be determined on a case-by-case basis.
• In re Insulin. In this recent decision the Court again “considered whether commercially available tools that may be used to maintain family relationships in the context of hyperlinks are feasible in the data environments or systems used by each producing party subject to the ESI (Electronically Stored Information) Protocol and, if feasible, if the use of such tools are proportional to the needs of the case and not unduly burdensome.” The Insulin Court ruled that, like the earlier cases, “such tools are either not feasible whatsoever or unduly burdensome to apply.”   

The takeaway: All the courts struggled with technical complexities of ESI and how to analyze hyperlinked files under the Court’s eDiscovery rules – and whether “modern attachments” should be treated as “attachments” is a vexing issue in a fast-evolving legal technology arsenal. For now, most Judges are ruling that until there is an automated way to collect hyperlinked data available commercially, parties are not required to treat them like traditional “attachments” across the board. Instead, parties must meet, confer, and identify what they really need and request specific hyperlinks for the producing party to attempt to collect, review and produce.