May 12, 2025 • 19 mins
Thank you for tuning in to Case of the Week with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on ediscovery, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy. Join us next episode as we break down another important case shaping the future of ediscovery.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:28):
Hi and Hi and welcome to our Case of the Week segment
of the podcast.
My name is Kelly Twigger.
I am the principal at ESIAttorneys, a law firm for
e-discovery and information law,and the CEO and founder at
e-discovery assistant, where wetake the insights from our
practice and provide a strategiccommand center for you to
leverage the power of ESI.
Thanks so much for joining metoday.
(00:50):
We are T-minus six days andcounting from the start of legal
week in New York City, and ourteam from eDiscovery Assistant
will be there and we would loveto see you.
We'll be hosting Coffee andDonuts at our suite at the
Hilton on Tuesday and Wednesdaymornings and setting up meetings
for those interested in seeingthe platform.
(01:11):
As well as hearing about ourroadmap for 2025 and seeing
what's new in the platform thatwe are rolling out, we also have
some very exciting news toshare about the future of the
company, so please stop by andsee us in our suite.
We'll include the link to signup for coffee and donuts or for
a meeting in the comments orpost, depending on where you're
(01:33):
viewing us.
All right.
Now on with the show.
This week's decision is thelatest in the saga of hyperlink
files and when a respondingparty has to provide documents
shared at links incommunications, regardless of
the application that they areshared from.
We are revisiting the discoverydispute Rich Case of NRA Uber
(01:55):
Technologies Passenger SexualAssault Litigation in front of
Judge, magistrate Judge LisaCisneros.
This decision is for March 3rd2025 and represents the first of
three decisions on hyperlinkfiles just this month, in March,
to resolve the issues raised byplaintiff following Uber's
(02:17):
production of documents.
Now we've covered decisionsfrom this case previously, most
recently on episode 141 of thecase of the week.
In that episode, I walked youthrough Magistrate Judge
Cisneros' order regarding thelanguage to be included in the
party's ESI protocol onhyperlinked files.
(02:37):
Recall that Uber leveragedGoogle Mail and Google Apps for
its employees and also archiveddata into Google Vault.
There is a detailed discussionin episode 141 of those various
technologies and the ability tocollect information from those
various technologies.
That is assumed for purposes ofthis decision.
(02:58):
So if you need to, you can goback and take a look at that one
and we'll drop that one as alink as well.
The March 3rd 2025 decisionfrom the court comes following a
joint letter from the parties.
We've talked multiple times onthe case of the week about the
benefits of using a letterdispute process with courts and
(03:21):
how you should engage with yourjudges to use that type of
process if you feel like you'regoing to have a situation with a
lot of discovery issues.
In this ruling, the court notedinitially that the disputes the
issues before it implicate theparty's ESI protocol and
reiterated its ruling from May2024, which was that episode 141
(03:45):
, in which it held that ahyperlink document is an
attachment for purposes of theESI protocol in this litigation
because it is akin to atraditional email attachment
where the email message andhyperlink document reflect a
single communication at aspecific point in time a single
communication at a specificpoint in time.
That's a very important pointhere that Judge Cisneros in the
(04:08):
in-rate UberText cases has saidthat a hyperlinked document is
an attachment because it is akinto a traditional email
attachment where the emailmessage and hyperlink document
reflect a single communicationat a specific point in time.
Now that is different thanother judges who have found that
(04:29):
hyperlink files are not anattachment.
So who you're in front of andhow informed your judge is is
going to depend on how thisissue goes Now.
Here the court also noted thatthe ESI protocol that the
parties had agreed upon andsubmitted did not require Uber
to produce contemporaneousversions of all hyperlinked
(04:52):
files.
That came after Ubersuccessfully argued that it was
not technologically possible forit to provide contemporaneous
versions of hyperlinkeddocuments from Google Vault.
But the court found that Uberwas able to provide
contemporaneous versions fromGoogle Drive.
Now, again, if you go back andlook at episode 141, it'll give
(05:14):
you a detailed discussion of thedifferences between Google
Vault and Google Drive and thetechnology that's available to
be able to pull contemporaneousversions and metadata from
Google Vault or from GoogleDrive.
I'm sorry, but not from GoogleVault.
But the ESI protocol here didrequire Uber to produce
(05:34):
contemporaneous versions ofdocuments that were not in Vault
but in the Google Drive, andthe protocol also required Uber
to provide metadata linking thehyperlink document to the email
where it is referenced.
And that's what's reallycritical because, as we know,
when we see an email with ahyperlink in it, we just have
that link, we just have that URL.
(05:55):
We don't know whether that's anactive link, we don't know
whether that document stillexists, this and in the context
of a production, we don't haveany metadata that links
potentially a subsequentlyproduced hyperlink document back
to that message to thatcommunication, whether it's a
chat, an email or anything wherea link is included.
Now, with that, referencing herMay 2023 order, judge Cisneros
(06:22):
stated that quote the lessonfrom the court's prior order,
which bears on the currentdispute, is that, while
attachments are broadly definedto include hyperlinks, the
production of all hyperlinkeddocuments is not required in
light of the pervasive technicalchallenges.
Close quote.
Now, with that background, let'sturn to the issues before the
(06:43):
court.
There are several here.
First, the plaintiffs soughtmetadata and underlying
documents for hyperlinks thatreferenced sources other than
Google Drive and this is wherethe language of the protocol
becomes key argued that theprotocol only focuses on
(07:07):
providing hyperlinked files fromGoogle Drive and that it was
not technologically feasible forthem to provide metadata for
all documents containinghyperlinks.
Plaintiffs argued that theprotocol language required Uber
to provide sufficient metadatato establish parent-child
relationships between thedocuments and their attachments
parent-child relationshipsbetween the documents and their
attachments, regardless ofwhether or not they linked to
(07:28):
Google Drive documents.
So the whole issue here is theprotocol specifically addresses
Google Drive documents, but itdoesn't address hyperlinks for
communications in otherapplications.
Looking at the language of theprotocol, the court found that,
even if the protocol could befound to require metadata for
(07:50):
hyperlink documents, not inGoogle Drive.
There is no obligation for aparty to do that where it is not
technologically feasible QuoteUber cannot use a method of
collection and processing thatpreserves a certain metadata
relationship if that method doesnot exist.
Close quote.
The court also noted that itwas not clear what metadata
(08:14):
fields that the plaintiffsactually sought from the
non-Google Drive hyperlinkedfiles.
Now, from my perspective, ifmetadata is laid out in the ESI
protocol, it would be prettyconsistent as to what it is that
the plaintiffs actually wereseeking here.
But it's another lesson thatyou need to articulate to the
court at every level.
Even though you've had thedisputes before, you need to
(08:34):
tell the court exactly whatyou're looking for in every
discovery dispute.
Now, to resolve the issue, thecourt ordered the parties to
meet and confer and come up witha process by which the
plaintiffs could request theBates number of, or the
production of, a hyperlinkdocument where they believe a
hyperlink document waspotentially relevant.
Now that process is in linewith Judge Susan Van Culen's
(08:57):
decision in McLaughlin v Teslafrom 2023.
The court here, however, didnot require Uber to produce
documents for links to publicwebsites, and that's in keeping
with Magistrate Judge Parker'sdecision from Nichols and Noom
back in 2021.
Interestingly, though, thecourt made the following comment
(09:19):
about the process for theparties to come up with Quote
such a protocol may include alimit on the number of requests
plaintiffs may make if theparties believe that is
appropriate.
If there is a dispute as to thenumber of requests to allow,
the court is inclined to allow alarge number Close quote.
(09:41):
Now, I love this in situationswhen judges signal to the
parties what their thinking is,so that the parties come up with
something that the court willdeem reasonable, in this case,
the fact that the court seesthis as affecting more than just
a few documents, and it saysspecifically that the court is
inclined to allow a large numberof requests to Uber to produce
(10:03):
either metadata or hyperlinkdocuments to Uber to produce
either metadata or hyperlinkdocuments.
Now, finally, on this issue,the court made a statement that
is important to note because itshows that she knows the
technology will continue to moveforward and that, as the case
progresses, new technology mayallow the parties to provide
more and better data, and shestated this separately.
(10:24):
The parties are also encouraged, but not required, to consider
whether it is technologicallyfeasible to include further
useful information regardinghyperlinked non-Google Drive
documents in future documentproductions and whether doing so
would be more efficient thanproviding such information
(10:45):
through case-by-case requests.
Close quote.
Now it's highly likely thattechnology will allow for more
collection and production asthis litigation moves forward.
If it does, then the questionwill become whether Uber is
required to go back andreproduce the same information
that could not be producedpreviously, and that, to me, is
(11:06):
a whole new can of worms.
The second issue involved herebetween the parties raised
Uber's lack of production ofhyperlinked files for documents
outside of Gmail.
The court noted that the ESIprotocol applies hyperlinked
applies to hyperlinked filesthat quote appear in
communications and ordered uberto produce documents hyperlinked
(11:29):
in google chat messages and forboth parties to meet and confer
to provide, to find a processto provide documents and
metadata from hyperlinks indocuments other than gmail and
chat messages.
That last issue.
So that is really saying okay,well, you parties contemplated
Google Drive, but we didn't talkabout these other things.
(11:51):
As it relates to hyperlinks,but based on the language in the
ESI protocol that everythingthat appears in communications
related to hyperlinks, thatmeans any source of ESI where
hyperlinks are used.
So not just Google Drive, notjust Gmail.
All right, the last issue thatthe parties raised here before
(12:12):
the court departed from thehyperlinks issue a little bit in
that it included the hyperlinksissue in email threading.
This one addressed Uber's lackof production of email threads,
but also relates to hyperlinkedfiles in email threads.
The ESI protocol for the matterallowed parties to use email
threading for internal review,but required that no email would
(12:35):
be withheld from productionbecause it is included in an
email thread.
And this is the wholediscussion that we've been
through on email threading ofyou have one email at the top,
that's the last included email,and then you have one email at
the top, that's the lastincluded email, and then you
have maybe 10 or 15 emails belowit.
Here Uber is keeping outnon-relevant emails from those
(12:58):
email threads and the plaintiffsare disputing that issue.
They're also disputing theissue of where a relevant email
that has a hyperlink or an emailthat they believe is relevant,
has a hyperlink.
That email is left out of theproduction but the hyperlink
later shows up in quotedinformation in another email
(13:21):
thread and the question iswhether or not the hyperlinked
files in those email threadsshould be produced according to
the protocol and according towhat the judge is ordering here
with regard to these otherissues that we discussed.
Now, judge Cisneros addressedthat issue of where hyperlinks
to files appeared later in anemail thread that has been
(13:43):
produced and quoted the contentof earlier emails in a thread
below the new message.
Plaintiffs argue that wherethose emails are produced, uber
has not produced the documentsor metadata for those included
hyperlinks.
Now Uber made an interestingargument here, finding that it
treated links to those documentsburied in email threads as
(14:05):
traditional attachments, meaningthat they would not necessarily
be attached to the replymessage.
That, in the way that you know,an email might happen.
So sometimes when I respond toan email that has an attachment,
the attachment may be attachedto the reply.
Other times it may not be.
(14:25):
It often depends on the emailclient and how your settings are
configured, and so what Uber isarguing is that, hey, we
treated these like traditionalattachments, that that hyperlink
file wouldn't necessarily beattached to a reply, so we
didn't produce it.
Now, that's a sly argument onUber's part, but it's a bit
(14:46):
disingenuous when we just had along discussion about the
requirement to producehyperlinked files from the ESI
protocol and the court disagreedwith Uber finding that, while
it can be true that traditionalattachments are not always
included in replies, they arealmost always included when the
email is forwarded.
Nevertheless, the courtidentified the issue as this and
(15:10):
this is an important one, sopay attention.
Quote can a hyperlink within anearlier email be considered the
equivalent of an attachment toa later email that quotes the
earlier email?
Under some circumstancesperhaps, but the question does
not have a clear, universalanswer and the ESI protocol does
(15:30):
not speak to this issuedirectly.
Close quote, with no clear path.
The court ordered the partiesto meet and confer using the
approach outlined on the earlierissues.
So what are our takeaways fromthis decision?
Well, they are plentiful.
First, this case reallyreiterates the iterative nature
(15:52):
of discovery and you are alwaysgoing to learn more as you go
through the process.
You're always going to identifyissues that you didn't
contemplate when you drafted theESI protocol, and it's almost
impossible to consider everyissue when drafting that
protocol.
Now, the parties here looked atwhat they had in front of them
(16:12):
and negotiated an incrediblythoughtful and detailed protocol
, but, as we see in thisdecision, it still had holes.
It didn't address what happenswhen a hyperlink is in an email
thread where not all emails inthe thread are relevant, but the
link is produced in asubsequent email and it didn't
contemplate specifically whathappens with hyperlinks and
applications other than GoogleDrive.
(16:33):
The point here is that thereare always going to be details
that can't be contemplated orthat the parties fail to
contemplate, and that's whyhaving an iterative process and
language in your protocol tohandle the general thought
processes excuse me about howthe parties wish to approach
issues is key.
(16:54):
Key that general language, likehere on hyperlinks and email
threading, acts as a guide forthe court in making decisions on
how to proceed on these complexissues.
Be thoughtful about yourprotocol.
It has ramifications all theway through your case.
This decision that we looked attoday is one of 37 discovery
(17:17):
decisions in this glass actioncase.
It's extensive and it'sdifficult to cover all of the
issues Now.
With regard to hyperlinks,today's decision is another step
in yet a consistent progressionof case law on this issue, and
it required the parties to comeup with a process which they did
in a subsequent decisionallowing the plaintiffs to
(17:39):
request documents and metadataon specific hyperlinks.
Now, what I love about JudgeCisneros' decision here and it's
been consistent in herdecisions on this matter is that
she is constantly looking atwhat is technologically feasible
to be done.
The analysis about whether aparty is entitled to the data is
not the issue, and I don'tthink it should be.
(18:00):
It's whether the technologyexists to provide it.
A party can only do whattechnology allows it to do, and
a court is not going to requiremore than that.
But the court also noted herethat if technology advances on
these issues as the caseprogresses, that Uber will be
(18:20):
required to provide data when itis able to do so.
And that raises a question Inoted earlier that will strike
fear into the hearts of allproducing parties.
If technology evolves to allowfor the production of
contemporaneous versions ofhyperlinked files and metadata,
will a party be required to goback and reproduce that
(18:42):
information later?
That's going to be a toughquestion for us to answer.
That's our case of the week forthis week.
Be sure to tune in for our nextepisode, whether you're
watching us via our blog,youtube or downloading it as a
podcast on your favoriteplatform.
You can also find our backissues of Case of the Week on
your favorite podcast platformand be sure to subscribe, as
we'll be adding new contentapart from the Case of the Week
(19:04):
segment.
Thanks so much.
Have a great week.
Hi and Hi and welcome to our Case of the Week segment
of the podcast.
My name is Kelly Twigger.
I am the principal at ESIAttorneys, a law firm for
e-discovery and information law,and the CEO and founder at
e-discovery assistant, where wetake the insights from our
practice and provide a strategiccommand center for you to
leverage the power of ESI.
Thanks so much for joining metoday.
(00:50):
We are T-minus six days andcounting from the start of legal
week in New York City, and ourteam from eDiscovery Assistant
will be there and we would loveto see you.
We'll be hosting Coffee andDonuts at our suite at the
Hilton on Tuesday and Wednesdaymornings and setting up meetings
for those interested in seeingthe platform.
(01:11):
As well as hearing about ourroadmap for 2025 and seeing
what's new in the platform thatwe are rolling out, we also have
some very exciting news toshare about the future of the
company, so please stop by andsee us in our suite.
We'll include the link to signup for coffee and donuts or for
a meeting in the comments orpost, depending on where you're
(01:33):
viewing us.
All right.
Now on with the show.
This week's decision is thelatest in the saga of hyperlink
files and when a respondingparty has to provide documents
shared at links incommunications, regardless of
the application that they areshared from.
We are revisiting the discoverydispute Rich Case of NRA Uber
(01:55):
Technologies Passenger SexualAssault Litigation in front of
Judge, magistrate Judge LisaCisneros.
This decision is for March 3rd2025 and represents the first of
three decisions on hyperlinkfiles just this month, in March,
to resolve the issues raised byplaintiff following Uber's
(02:17):
production of documents.
Now we've covered decisionsfrom this case previously, most
recently on episode 141 of thecase of the week.
In that episode, I walked youthrough Magistrate Judge
Cisneros' order regarding thelanguage to be included in the
party's ESI protocol onhyperlinked files.
(02:37):
Recall that Uber leveragedGoogle Mail and Google Apps for
its employees and also archiveddata into Google Vault.
There is a detailed discussionin episode 141 of those various
technologies and the ability tocollect information from those
various technologies.
That is assumed for purposes ofthis decision.
(02:58):
So if you need to, you can goback and take a look at that one
and we'll drop that one as alink as well.
The March 3rd 2025 decisionfrom the court comes following a
joint letter from the parties.
We've talked multiple times onthe case of the week about the
benefits of using a letterdispute process with courts and
(03:21):
how you should engage with yourjudges to use that type of
process if you feel like you'regoing to have a situation with a
lot of discovery issues.
In this ruling, the court notedinitially that the disputes the
issues before it implicate theparty's ESI protocol and
reiterated its ruling from May2024, which was that episode 141
(03:45):
, in which it held that ahyperlink document is an
attachment for purposes of theESI protocol in this litigation
because it is akin to atraditional email attachment
where the email message andhyperlink document reflect a
single communication at aspecific point in time a single
communication at a specificpoint in time.
That's a very important pointhere that Judge Cisneros in the
(04:08):
in-rate UberText cases has saidthat a hyperlinked document is
an attachment because it is akinto a traditional email
attachment where the emailmessage and hyperlink document
reflect a single communicationat a specific point in time.
Now that is different thanother judges who have found that
(04:29):
hyperlink files are not anattachment.
So who you're in front of andhow informed your judge is is
going to depend on how thisissue goes Now.
Here the court also noted thatthe ESI protocol that the
parties had agreed upon andsubmitted did not require Uber
to produce contemporaneousversions of all hyperlinked
(04:52):
files.
That came after Ubersuccessfully argued that it was
not technologically possible forit to provide contemporaneous
versions of hyperlinkeddocuments from Google Vault.
But the court found that Uberwas able to provide
contemporaneous versions fromGoogle Drive.
Now, again, if you go back andlook at episode 141, it'll give
(05:14):
you a detailed discussion of thedifferences between Google
Vault and Google Drive and thetechnology that's available to
be able to pull contemporaneousversions and metadata from
Google Vault or from GoogleDrive.
I'm sorry, but not from GoogleVault.
But the ESI protocol here didrequire Uber to produce
(05:34):
contemporaneous versions ofdocuments that were not in Vault
but in the Google Drive, andthe protocol also required Uber
to provide metadata linking thehyperlink document to the email
where it is referenced.
And that's what's reallycritical because, as we know,
when we see an email with ahyperlink in it, we just have
that link, we just have that URL.
(05:55):
We don't know whether that's anactive link, we don't know
whether that document stillexists, this and in the context
of a production, we don't haveany metadata that links
potentially a subsequentlyproduced hyperlink document back
to that message to thatcommunication, whether it's a
chat, an email or anything wherea link is included.
Now, with that, referencing herMay 2023 order, judge Cisneros
(06:22):
stated that quote the lessonfrom the court's prior order,
which bears on the currentdispute, is that, while
attachments are broadly definedto include hyperlinks, the
production of all hyperlinkeddocuments is not required in
light of the pervasive technicalchallenges.
Close quote.
Now, with that background, let'sturn to the issues before the
(06:43):
court.
There are several here.
First, the plaintiffs soughtmetadata and underlying
documents for hyperlinks thatreferenced sources other than
Google Drive and this is wherethe language of the protocol
becomes key argued that theprotocol only focuses on
(07:07):
providing hyperlinked files fromGoogle Drive and that it was
not technologically feasible forthem to provide metadata for
all documents containinghyperlinks.
Plaintiffs argued that theprotocol language required Uber
to provide sufficient metadatato establish parent-child
relationships between thedocuments and their attachments
parent-child relationshipsbetween the documents and their
attachments, regardless ofwhether or not they linked to
(07:28):
Google Drive documents.
So the whole issue here is theprotocol specifically addresses
Google Drive documents, but itdoesn't address hyperlinks for
communications in otherapplications.
Looking at the language of theprotocol, the court found that,
even if the protocol could befound to require metadata for
(07:50):
hyperlink documents, not inGoogle Drive.
There is no obligation for aparty to do that where it is not
technologically feasible QuoteUber cannot use a method of
collection and processing thatpreserves a certain metadata
relationship if that method doesnot exist.
Close quote.
The court also noted that itwas not clear what metadata
(08:14):
fields that the plaintiffsactually sought from the
non-Google Drive hyperlinkedfiles.
Now, from my perspective, ifmetadata is laid out in the ESI
protocol, it would be prettyconsistent as to what it is that
the plaintiffs actually wereseeking here.
But it's another lesson thatyou need to articulate to the
court at every level.
Even though you've had thedisputes before, you need to
(08:34):
tell the court exactly whatyou're looking for in every
discovery dispute.
Now, to resolve the issue, thecourt ordered the parties to
meet and confer and come up witha process by which the
plaintiffs could request theBates number of, or the
production of, a hyperlinkdocument where they believe a
hyperlink document waspotentially relevant.
Now that process is in linewith Judge Susan Van Culen's
(08:57):
decision in McLaughlin v Teslafrom 2023.
The court here, however, didnot require Uber to produce
documents for links to publicwebsites, and that's in keeping
with Magistrate Judge Parker'sdecision from Nichols and Noom
back in 2021.
Interestingly, though, thecourt made the following comment
(09:19):
about the process for theparties to come up with Quote
such a protocol may include alimit on the number of requests
plaintiffs may make if theparties believe that is
appropriate.
If there is a dispute as to thenumber of requests to allow,
the court is inclined to allow alarge number Close quote.
(09:41):
Now, I love this in situationswhen judges signal to the
parties what their thinking is,so that the parties come up with
something that the court willdeem reasonable, in this case,
the fact that the court seesthis as affecting more than just
a few documents, and it saysspecifically that the court is
inclined to allow a large numberof requests to Uber to produce
(10:03):
either metadata or hyperlinkdocuments to Uber to produce
either metadata or hyperlinkdocuments.
Now, finally, on this issue,the court made a statement that
is important to note because itshows that she knows the
technology will continue to moveforward and that, as the case
progresses, new technology mayallow the parties to provide
more and better data, and shestated this separately.
(10:24):
The parties are also encouraged, but not required, to consider
whether it is technologicallyfeasible to include further
useful information regardinghyperlinked non-Google Drive
documents in future documentproductions and whether doing so
would be more efficient thanproviding such information
(10:45):
through case-by-case requests.
Close quote.
Now it's highly likely thattechnology will allow for more
collection and production asthis litigation moves forward.
If it does, then the questionwill become whether Uber is
required to go back andreproduce the same information
that could not be producedpreviously, and that, to me, is
(11:06):
a whole new can of worms.
The second issue involved herebetween the parties raised
Uber's lack of production ofhyperlinked files for documents
outside of Gmail.
The court noted that the ESIprotocol applies hyperlinked
applies to hyperlinked filesthat quote appear in
communications and ordered uberto produce documents hyperlinked
(11:29):
in google chat messages and forboth parties to meet and confer
to provide, to find a processto provide documents and
metadata from hyperlinks indocuments other than gmail and
chat messages.
That last issue.
So that is really saying okay,well, you parties contemplated
Google Drive, but we didn't talkabout these other things.
(11:51):
As it relates to hyperlinks,but based on the language in the
ESI protocol that everythingthat appears in communications
related to hyperlinks, thatmeans any source of ESI where
hyperlinks are used.
So not just Google Drive, notjust Gmail.
All right, the last issue thatthe parties raised here before
(12:12):
the court departed from thehyperlinks issue a little bit in
that it included the hyperlinksissue in email threading.
This one addressed Uber's lackof production of email threads,
but also relates to hyperlinkedfiles in email threads.
The ESI protocol for the matterallowed parties to use email
threading for internal review,but required that no email would
(12:35):
be withheld from productionbecause it is included in an
email thread.
And this is the wholediscussion that we've been
through on email threading ofyou have one email at the top,
that's the last included email,and then you have one email at
the top, that's the lastincluded email, and then you
have maybe 10 or 15 emails belowit.
Here Uber is keeping outnon-relevant emails from those
(12:58):
email threads and the plaintiffsare disputing that issue.
They're also disputing theissue of where a relevant email
that has a hyperlink or an emailthat they believe is relevant,
has a hyperlink.
That email is left out of theproduction but the hyperlink
later shows up in quotedinformation in another email
(13:21):
thread and the question iswhether or not the hyperlinked
files in those email threadsshould be produced according to
the protocol and according towhat the judge is ordering here
with regard to these otherissues that we discussed.
Now, judge Cisneros addressedthat issue of where hyperlinks
to files appeared later in anemail thread that has been
(13:43):
produced and quoted the contentof earlier emails in a thread
below the new message.
Plaintiffs argue that wherethose emails are produced, uber
has not produced the documentsor metadata for those included
hyperlinks.
Now Uber made an interestingargument here, finding that it
treated links to those documentsburied in email threads as
(14:05):
traditional attachments, meaningthat they would not necessarily
be attached to the replymessage.
That, in the way that you know,an email might happen.
So sometimes when I respond toan email that has an attachment,
the attachment may be attachedto the reply.
Other times it may not be.
(14:25):
It often depends on the emailclient and how your settings are
configured, and so what Uber isarguing is that, hey, we
treated these like traditionalattachments, that that hyperlink
file wouldn't necessarily beattached to a reply, so we
didn't produce it.
Now, that's a sly argument onUber's part, but it's a bit
(14:46):
disingenuous when we just had along discussion about the
requirement to producehyperlinked files from the ESI
protocol and the court disagreedwith Uber finding that, while
it can be true that traditionalattachments are not always
included in replies, they arealmost always included when the
email is forwarded.
Nevertheless, the courtidentified the issue as this and
(15:10):
this is an important one, sopay attention.
Quote can a hyperlink within anearlier email be considered the
equivalent of an attachment toa later email that quotes the
earlier email?
Under some circumstancesperhaps, but the question does
not have a clear, universalanswer and the ESI protocol does
(15:30):
not speak to this issuedirectly.
Close quote, with no clear path.
The court ordered the partiesto meet and confer using the
approach outlined on the earlierissues.
So what are our takeaways fromthis decision?
Well, they are plentiful.
First, this case reallyreiterates the iterative nature
(15:52):
of discovery and you are alwaysgoing to learn more as you go
through the process.
You're always going to identifyissues that you didn't
contemplate when you drafted theESI protocol, and it's almost
impossible to consider everyissue when drafting that
protocol.
Now, the parties here looked atwhat they had in front of them
(16:12):
and negotiated an incrediblythoughtful and detailed protocol
, but, as we see in thisdecision, it still had holes.
It didn't address what happenswhen a hyperlink is in an email
thread where not all emails inthe thread are relevant, but the
link is produced in asubsequent email and it didn't
contemplate specifically whathappens with hyperlinks and
applications other than GoogleDrive.
(16:33):
The point here is that thereare always going to be details
that can't be contemplated orthat the parties fail to
contemplate, and that's whyhaving an iterative process and
language in your protocol tohandle the general thought
processes excuse me about howthe parties wish to approach
issues is key.
(16:54):
Key that general language, likehere on hyperlinks and email
threading, acts as a guide forthe court in making decisions on
how to proceed on these complexissues.
Be thoughtful about yourprotocol.
It has ramifications all theway through your case.
This decision that we looked attoday is one of 37 discovery
(17:17):
decisions in this glass actioncase.
It's extensive and it'sdifficult to cover all of the
issues Now.
With regard to hyperlinks,today's decision is another step
in yet a consistent progressionof case law on this issue, and
it required the parties to comeup with a process which they did
in a subsequent decisionallowing the plaintiffs to
(17:39):
request documents and metadataon specific hyperlinks.
Now, what I love about JudgeCisneros' decision here and it's
been consistent in herdecisions on this matter is that
she is constantly looking atwhat is technologically feasible
to be done.
The analysis about whether aparty is entitled to the data is
not the issue, and I don'tthink it should be.
(18:00):
It's whether the technologyexists to provide it.
A party can only do whattechnology allows it to do, and
a court is not going to requiremore than that.
But the court also noted herethat if technology advances on
these issues as the caseprogresses, that Uber will be
(18:20):
required to provide data when itis able to do so.
And that raises a question Inoted earlier that will strike
fear into the hearts of allproducing parties.
If technology evolves to allowfor the production of
contemporaneous versions ofhyperlinked files and metadata,
will a party be required to goback and reproduce that
(18:42):
information later?
That's going to be a toughquestion for us to answer.
That's our case of the week forthis week.
Be sure to tune in for our nextepisode, whether you're
watching us via our blog,youtube or downloading it as a
podcast on your favoriteplatform.
You can also find our backissues of Case of the Week on
your favorite podcast platformand be sure to subscribe, as
we'll be adding new contentapart from the Case of the Week
(19:04):
segment.
Thanks so much.
Have a great week.
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