Just When You Thought You Understood ESI…
April 28, 2021
Riddle me this: Is a document that resides on your network and which you embed in an email via a hyperlink the functional equivalent of an attachment to that email?
Magistrate Judge Katherine H. Parker, in a recent decision out of the Southern District of New York (Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (S.D.N.Y. Mar. 11, 2021), holds hyperlinked documents are not attachments.
The Nichols case is a class action lawsuit involving allegations of a “deceptive and illegal automatic renewal scheme” for Noom’s weight-loss service. As part of the discovery process, the parties agreed to an ESI protocol that authorized Noom to use Google Vault as the mechanism for collecting documents and emails from its Google Drive and Google Mail accounts.
In reviewing documents, plaintiffs realized Noom employees used hyperlinks to reference internal documents rather than downloading a copy of that document and attaching it to their email. According to Plaintiffs, this practice precluded them from understanding the family association among produced documents (i.e., the production lacked metadata associating the hyperlinked documents with the transmittal email). And so, notwithstanding the ESI protocol in place, plaintiffs requested the Court direct Noom to re-collect the potentially responsive data using a different vendor so that “hyperlinked documents [were] pulled as part of the document ‘family.’”
In opposition Noom claimed “hyperlinks are not attachments.” Noom further argued it was producing all of the linked documents and a re-collection, which carried a $180,000 cost, would be disproportional.
Hyperlinked Documents Are Not Attachments
The Court ruled in Noom’s favor and held that hyperlinked documents are not the same as attachments. Specifically, the Court opined that an attachment, unlike a hyperlinked document, is “a necessary part of” the email. In support of this conclusion, the Court cited to various illustrative examples when a hyperlink would not be relevant (i.e., a phone number, another part of the document). The Court went on to conclude that because hyperlinked documents are not the equivalent of an attachment, family associations among emails and hyperlinks are not critical. The Court further found that the existing procedure – which involved the production of all hyperlinked documents with plaintiff reserving the right to request any hyperlinked documents they could not locate in the production – was sufficient.
This decision is interesting. Many businesses – like Noom – link to internal documents rather than downloading and attaching that document to the email communication at issue. And so, there is an argument that a hyperlinked document is the functional equivalent of an attachment and is, therefore, a necessary part of the communication. If you accept that premise, then one would presumably want to understand the relationship between the transmittal email and the hyperlinked document. Given the increasing use of hyperlinks, it is only a matter of time until other Courts weigh in on this issue.
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