More on Hyperlinked Files and How Your Technology Affects Your Obligations to Produce Them

The digital evidence landscape continues to evolve at breakneck speed, and nowhere is this more apparent than in the ongoing saga of the In re Uber Techs. Passenger Sexual Assault Litigation. Magistrate Judge Lisa Cisneros's March 2025 ruling delivers a groundbreaking perspective on hyperlinked documents in discovery that every legal professional needs to understand.

Judge Cisneros has definitively established that hyperlinked documents function as attachments for discovery purposes when they reflect "a single communication at a specific point in time." This marks a significant departure from rulings by other judges who have found that hyperlinked files are not attachments. The decision underscores a critical reality of modern discovery: your judge's technological understanding can dramatically impact your case outcome.

The ruling carefully navigates the complex technological landscape of Google Mail, Google Apps, and Google Vault that Uber uses for its corporate communications. While acknowledging that Uber cannot produce what technology doesn't allow (contemporaneous versions of hyperlinked documents from Google Vault), the court required production of hyperlinked documents from other platforms like Google Drive and Google Chat. This technology-aware approach balances discovery obligations with practical limitations.

Most provocatively, Judge Cisneros signaled that technological advancement during litigation could create new obligations. If new tools emerge that make previously "impossible" collections possible, parties may need to reproduce information. This forward-looking stance should give pause to any organization developing its discovery strategy—what's technologically infeasible today may become required tomorrow.

For legal teams working with corporate clients, this case serves as a powerful reminder to thoroughly understand your client's communication ecosystem before drafting ESI protocols. Despite having what appeared to be a comprehensive protocol, the parties still encountered gaps regarding hyperlinks in various applications and email threads. The most carefully crafted agreement can't anticipate every scenario in our rapidly evolving digital landscape.

Have you examined how your team handles hyperlinked documents in discovery? Are you preparing clients for the possibility that technological advances might create retroactive obligations? The NRA v. Uber case demonstrates that in modern litigation, staying ahead of digital evidence challenges isn't just good practice—it's essential.

Thank you for tuning in to Meet and Confer 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 creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

Episode Transcript

Kelly Twigger (00:01):
Welcome to the Meet and Confer podcast.
I'm your host, Kelly Twigger.
Thanks so much for being here.
If you're tuning in for thefirst time, thanks for giving me
your time.
I know how valuable it is.
One of the nuances of the Meetand Confer podcast is that I
break things down into segments,and this week's episode is from
our Case of the Week segment,touching on one of the more than
60 discovery decisions in theInRe UberTech's sexual assault

(00:25):
litigation.
It's a key one on hyperlinkedfiles, and I think you'll enjoy
it.
Before we dive in, let's take abrief pause to talk about
mobile discovery.
If your case hinges on acustodian's phone, Mode 1 lets
you pull only the relevanttexts, chats, or photos in a
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(00:48):
Relativity the same day for aflat fee.
I've watched it shrinkcollections from weeks to hours
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To learn more about how Mode 1can help you get mobile data
faster and morecost-effectively, visit
mode1.io.
All right, now on with theshow.

(01:09):
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 Enray Uber
Technologies' passengerapplication.

(01:29):
passenger sexual assaultlitigation in front of Judge
Magistrate Judge Lisa Cisneros.
This decision is for March 3rd,2025 and represents the first
of three decisions on hyperlinkfiles just this month in March
to resolve the issues raised byplaintiff following Uber's

(01:49):
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.

(02:10):
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 of those
various technologies and theability to collect information
from those various technologiesthat is assumed for purposes of

(02:30):
this decision.
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

(02:53):
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 implicatethe party's ESI protocol and
reiterated its ruling from May2024, which was that episode

(03:15):
141, 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.
That's a very important pointhere that Judge Cisneros in the

(03:39):
NRA UberText cases has said thata hyperlinked document is an
attachment because it is akin toa traditional email attachment
where the email message andhyperlinked document reflect a
single communication at aspecific point in time.
Now that is different thanother judges who have found that

(04:01):
hyperlink files are not anattachment.
So who you're in front of andhow informed your judges is
going to depend on how thisissue goes.
Now here, the court also notedthat the ESI protocol that the
parties had agreed upon andsubmitted did not require Uber
to produce contemporaneousversions of all hyperlinked

(04:23):
files.
That came after Ubersuccessfully argued that it was
not technologically possible forit to provide contemporaneous
versions of hyperlink documentsfrom 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

(04:45):
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
Google Vault.
But the ESI protocol here didrequire Uber to produce

(05:05):
contemporaneous versions ofdocuments that were not in
Vault, but in the Google Drive.
And the protocol also requiredUber to provide metadata linking
the hyperlink document to theemail 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.

(05:26):
We don't know whether that's anactive link.
We don't know whether thatdocument still exists.
And in the context of aproduction, we don't have any
metadata that links potentiallya subsequently produced
hyperlink document back to thatmessage, to that communication,
whether it's a chat, an email,or anything where a link is
included.
Now, with that, referencing herMay 2023 order, Judge Cisneros

(05:51):
stated that, quote, the lessonfrom the court's prior order,
which bears on the currentdispute, is that while
attachments are broadly definedto include hyperlink The
production of all hyperlinkeddocuments is not required in
light of the pervasive technicalchallenges.
Close quote.
Now, with that background,let's turn to the issues before

(06:13):
the court.
There are several here.
First, the plaintiffs soughtmetadata and underlying
documents for hyperlinks thatreferenced sources other than
Google Drive.
And this is where the languageof the protocol becomes key.
Uber argued that the protocolonly focuses on providing
hyperlinked files from GoogleDrive and that it was not

(06:37):
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,
regardless of whether or notthey linked to Google Drive

(06:58):
documents.
So the whole issue here is theprotocol specifically addresses
Google Drive documents, but itdoesn't address hyperlinks for
communications in otherapplications.
Now, Looking at the language ofthe protocol, the court found
that even if the protocol couldbe found to require metadata for

(07:20):
hyperlink documents not inGoogle Drive, there is no
obligation for a party to dothat where it is not
technologically feasible.
Quote, Uber cannot use a methodof collection and processing
that preserves a certainmetadata relationship if that
method does not exist.
Close quote.

(07:40):
The court also noted that itwas not clear what metadata
fields that the plaintiffsactually sought from the
non-Google Drive hyperlinkedfiles.
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.

(08:01):
Even though you've had thedisputes before, you need to
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.

(08:23):
Now, that process is in linewith Judge Susan Van Culen's
decision in McLaughlin v.
Tesla from 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

(08:43):
back in 2021.
Interestingly, though, thecourt made the following comment
about the process for theparties to come up with.
Quote, such a protocol mayinclude a limit on the number of
requests plaintiffs may make ifthe parties believe that is
appropriate.
If there is a dispute as to thenumber of requests to allow,

(09:05):
the court is inclined to allow alarge number.
Close quote.
Now, I love this in situationswhen judges signal to the
parties what their thinking isso that the parties come up with
something that the court willdeem reasonable.
In this case, the fact that thecourt sees this as affecting
more than just a few documents,and it says specifically that

(09:27):
the court is inclined to allow alarge number of requests to
Uber to produce either metadataor hyperlink documents.
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 Andshe stated this.

(09:52):
Close quote.
Now it's highly likely thattechnology will allow for more

(10:21):
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 a whole newcan of worms.
The second issue involved herebetween the parties raised

(10:44):
Uber's lack of production ofhyperlinked files for documents
outside of Gmail.
A court noted that the ESIprotocol applies to hyperlinked
files that quote appear incommunications and ordered Uber
to produce documents hyperlinkedin Google chat messages and for
both parties to meet and conferto provide to find a process to

(11:05):
provide documents and metadatafrom hyperlinks in documents
other than Gmail and chatmessages.
That last issue, so that isreally saying, okay, well, you
parties contemplated GoogleDrive, but we didn't talk about
these other things as it relatesto hyperlinks.
But based on the language inthe ESI protocol that Everything

(11:26):
that appears in communicationsrelated to hyperlinks, that
means any source of ESI wherehyperlinks are used.
So not just Google Drive, notjust Gmail.
All right.
The last issue that the partiesraised here before the court
departed from the hyperlinksissue a little bit in that it
included the hyperlinks issue inemail threading.

(11:46):
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
be withheld from productionbecause it is included in an
email thread.

(12:07):
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 maybe 10 or 15
emails below it.
Here, Uber is keeping outnon-relevant emails from those
email threads and the plaintiffsare disputing that issue

(12:31):
they're also disputing the issueof where a relevant email that
has a hyperlink or an email thatthey believe is relevant has a
hyperlink that email is left outof the production but the
hyperlink later shows up inquoted information in another
email thread And the question iswhether or not the hyperlinked

(12:51):
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
produced and quoted the contentof earlier emails in a thread

(13:13):
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
traditional attachments, meaningthat they would not necessarily

(13:35):
be attached to the replymessage in the way that 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.
It often depends on the emailclient and how your settings are
configured.
And so what Uber is arguing isthat, hey, we treated these like

(13:59):
traditional attachments, thatthat hyperlink file wouldn't
necessarily be attached to areply, so we didn't produce it.
Now, that's a sly argument onUber's part, but it's a bit
disingenuous when we just had along discussion about the
requirement to producehyperlinked files from the ESI
protocol.
And the court disagreed withUber, finding that while it can

(14:21):
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 this is an important one, sopay attention.
Quote, can a hyperlink withinan earlier email be considered
the equivalent of an attachmentto a later email that quotes the

(14:45):
earlier email?
Under some circumstances,perhaps, but the question does
not have a clear universalanswer and the ESI protocol does
not speak to this issuedirectly.
Close quote.
With no clear path, the courtordered the parties to meet and
confer using the approachoutlined on the earlier issues.
So what are our takeaways fromthis decision?

(15:08):
Well, they are plentiful.
First, This case reallyreiterates the iterative nature
of discovery.
And you are always going tolearn 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 toconsider every issue when

(15:30):
drafting that protocol.
Now, the parties here looked atwhat they had in front of them
and negotiated an incrediblythoughtful and detailed
protocol.
But as we see in this decision,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.

(15:50):
And it didn't contemplatespecifically what happens with
hyperlinks and applicationsother than Google Drive.
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 why having aniterative process and language
in your protocol to handle thegeneral thought processes about

(16:13):
how the parties wish to approachissues is 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

(16:39):
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 consistentprogression of case law on this
issue.
And again, it required theparties to come up with a
process, which they did in asubsequent decision, allowing

(17:00):
the plaintiffs to requestdocuments and metadata on
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 lookingat what 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.

(17:22):
It's whether the technologyexists to provide it a party can
only do what technology allowsit to do and a court is not
going to require more than thatbut the court also noted here
that if technology advances onthese issues as the case
progresses that uber will berequired to provide data when it

(17:44):
is able to do so And thatraises a question I noted
earlier that will strike fearinto the hearts of all producing
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

(18:04):
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

(18:26):
segment.
Thanks so much.
Have a great week.