All Episodes

June 11, 2025 15 mins

I spoke with Brandon D’Agostino, Vice President of Product at Cloudficient, a provider of information governance and e-discovery software. We discussed the rise of hyperlinked documents in e-discovery, the legal challenges of preserving and collecting hyperlinked files, and adapting ESI protocols to address hyperlinked files.

Mark as Played
Transcript

Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:01):
Welcome to Reinventing Professionals,a podcast hosted by industry analyst
Ari Kaplan, which shares ideas,guidance, and perspectives from market
leaders shaping the next generationof legal and professional services.
This is Ari Kaplan, and I'm speakingtoday with Brandon D'Agostino, vice

(00:23):
president of product at CloudFission,an information governance and
e discovery software provider.
Hi, Brandon.
How are you?
Hi, Ari.
Doing great.
And thank you for having me.
I'm looking forward to this.
So tell us about your backgroundand your role at CloudFission.
I'm an attorney, but I started my.
My professional career in I.T. then went to law school and

(00:45):
kind of got drug into discovery.
As many of us who had some technicalcapability and legal combined so I spent
a little bit of time in house doingdiscovery work and then have been a few
different software providers over theyears starting all the way back in the.
The Clearwell days, if anybodyremembers that product but yeah, so
I'm head of product at CloudFission.

(01:05):
And so I'm getting to do the thing I'vealways wanted to do, which is build
really cool software from the ground up.
What are the biggest challenges thatyou're finding in terms of information
governance and e discovery today?
There are definitely some issuesaround the amount of cloud applications

(01:25):
that companies are using today.
And so, , we used to think it'd bediscovery is, , it's email, it's files
, maybe a cell phone or 2, some laptops.
And now, you have companies.
running so many different applicationsand every department's running a
different set of applications andthen you're collaborating on things
because now we're in the cloud and soeverything is, all of the documents and

(01:45):
the data are fluid, they're these livingorganic beings, they're not static,
like an attachment or a document thatyou downloaded from a network share.
So , , the links and differentinterconnections between all
these apps and these messages.
Are creating a lot of, a lot of havocfor people trying to do e discovery
because we're, we're trying to preserveand collect that information and we're

(02:06):
trying to figure out, , is the documentI'm looking at today even relevant or is
it the same thing that the custodian sawsix months, nine months, 12 months ago?
How is the rise in hyperlinkeddocuments affecting parties and their
lawyers when it comes to e discovery?
I've actually talked to several friendsthat are in , counsel positions at law

(02:29):
firms, e discovery counsel, even thatI think 1 of the challenges they see is
that , case counsel sometimes doesn'tfully understand the capabilities.
Of their client systems, , it'sbecause we are trying to
preserve data at a point in time.
That's traditionally how we think of it.
, The requesting party and whether it'splain, if we're defense side, whoever's

(02:51):
requesting discovery is thinking, , I wanteverything that's potentially relevant.
And I think those hyperlinkfiles are relevant and you're
going to give them to me.
And meanwhile, the producing party.
Isn't able to do that because thetechnology just doesn't exist or
hasn't existed up to this point todo it without a lot of manual effort.
And so what we're seeing, I think theother dimension to that problem is that

(03:16):
we haven't seen a court definitively say,, we don't have a definitive decision.
They can say, , yes, we shouldalways preserve specific versions
of these files or no, you don'thave to just produce the message.
And then if we get the files, we get them.
But no, you don't have to link themtogether or anything like that.
And so there's a lot of confusion.

(03:38):
And so I think, , what we'reseeing in a lot of these cases is.
And then, , we have to re litigate allthe background first and get everybody
up to a base level of understandingand that requires motions and hearings
and briefs and everything else.
Right?
And then we're bringing experts in expertsare filing affidavits, which costs a
whole lot of money when you think about,, the legal services and the hours and

(04:00):
everything else that are going into that.
So then.
We hit the base level of understanding,and now, , plaintiff's counsel has to
come to the realization that, well,defense counsel can't really just wear
a magic wand like they always did inthe past and just get all this stuff,
and then defense counsel says, yeah, andwe need you to tell us what you want.
And so you just get into thissort of catch 22 situation.

(04:23):
What are those legal challengesassociated with preserving and
collecting hyperlinked files?
Think about these files as dynamic.
, In the old days, , I say the old days someof us still send physical attachments.
I do still sometimes sendphysical attachments.
But , we used to send a fileand that file was preserved.
At that moment in time, theemail contained the attachment.

(04:46):
It was the version that was sentby, , you send me, , a list of
questions for a podcast, right?
And I get that, that PDF and I can, I, theversion that Ari sent me is in my email.
So you collect my email, you preserveme in, , Microsoft, Google, wherever.
Super, , it's easy withtoday's technology to do that.
With a hyperlink file, imagineyou send me a hyperlink.

(05:09):
And, , Ari Kaplan's hyperlinks are notin the CloudFishint system, so if we
preserved my email, I would only havejust the hyperlink that says, Ari sent
me a hyperlink at this particular time.
We can't access Ari's systems,so it's no longer available.
And if we were even in the samecompany, some of the technology

(05:31):
issues we're seeing today, we, we.
If you preserve me, for example, youmay not actually preserve the documents
that are in your OneDrive or yourpersonal repository, whether that's
Box, OneDrive, Google Drive, whatever.
And so that becomes an issuewhen, six months later in
review, we realize, oh, Ari sent.

(05:52):
Brandon, a file, maybe Arishould have been a custodian,
but we preserved that right?
Well, no, you didn't and now Arihas since deleted all those files.
And and so there's, there's, there'sa lot of a lot of challenges that , I
think if we kind of boil it all downto what the biggest issue is, is that.
You don't know you have a problem untilyou spot it and it could be months later.

(06:16):
It could be.
Outside councils reviewing and they seea hyperlink and they say, hey, client.
Love for you to give me a copy of that.
Can you go and get it and they go?
Well, yeah, let's go see.
And then either it's there.
Or it's it's been deleted, right?
Even if it's there, it could bethe version that was a month later.

(06:38):
Or a year later from the timethat the actual message was sent
and so there's no way to know.
Was, , was theresubstantive content change?
Because the other wrinkle to this isthat, , now with these collaborative
files, we leave them open on ourcomputer all the time, right?
Like, I have, I don't know how many tabs Ihave open right now, but I'm sure many of
those are OneDrive hyperlinked files thatI've shared with other people on my team.

(07:02):
Well, Microsoft and Googleare saving a version of that
every couple seconds, right?
Just to make sure nothing changes.
And they only keep acertain number of versions.
And so, because discovery isalways a look way back in the past,
chances are the version that you'relooking for was overwritten long
ago, if you weren't preserving it.

(07:23):
And so we run into all ofthese challenges that are.
What?
I think we've talked about in other othersettings that we say, , this is like a
it's kind of an information governancechallenges as well as any discovery
1, because if we can solve it at thesource, then no matter what happens
downstream, no matter what we agree to,we at least have the freedom to say.

(07:44):
Yes, we could produce thosecontemporaneous versions, or
we can at least review them forrelevance, privilege, and whatever.
And then the problem, it's notas big of a problem because we're
not doing all that manual work.
We've already preserved it at the source.
How does Cloudficient resolve thischallenge from a technical perspective?
We tackle it in a few differentways with a few different products,

(08:07):
actually, because we noticed that itwas, first of all, it was an information
governance challenge, as I said.
So the first way we solve itis with our archive, Expiron.
So it's a cloud native archive,and it can connect to your email.
System, , so let's use microsoft's anexample connect to m365 So we are getting

(08:28):
a copy we can actually get a live copyYou used to call that journaling back
in the day I mean still it's technicallycalled that but you see it a lot on the
financial services side of things andfor compliance reasons but there's a
new reason to do journaling and that isthat As the message is sent to Expiron,
we can automatically go and fetch thatcontemporaneous version of the hyperlink

(08:48):
file at that moment that it was sent.
And so there's no chanceof it getting overwritten.
We've got the version that wasmost closely related to the email.
We'll store those together.
And then when you go to export those tosend to your downstream review, We will
export a load file that has the parentrelationship already already assigned.
And I've kind of joked on another, ona webinar recently that, , you used to

(09:13):
call them parents and children, but Ithink of hyperlinks as the nieces and
nephews of the of the parent message.
So we give you the extendeddocument family in our load file.
But the, the second way we'd solve itis, , for customers that aren't using
Expiron or aren't, don't want to journalemail, CaseFusion is our e discovery
platform, and that Handles everythingfrom identification through preservation,

(09:36):
and we kind of call that left sideof the EDRM foundational eDiscovery.
So really focused on the on theenterprise corporate market with that.
And so they would deploythis in their organization.
They can do a collection , to M365again to use that as an example, right?
To get a OneDrive or SharePoint files,but as we pull in things like messages

(09:57):
and chats and other other placeswhere those hyperlinks might be were
automatically connected to those systems.
And so we'll go and try to get thosehyperlinked files and then do basically a
match to the sent date versus the version.
Now again, because it's after thefact, there could always be a situation
where you don't have access to thatfile because it was overwritten and

(10:19):
the customer didn't, , didn't havecloud efficient when those documents
were created for that case, right?
That's always a challengethat, , not likely to solve , being
able to recreate missing data.
But the, the interesting thing about itis that with case fusion, we can go one
step further than just the contemporaneousversion of the sent message.
We can actually get the accessedversion by the recipients because

(10:42):
we're also plugging into the auditlogs, which is something that,
, cybersecurity vendors have beendoing to analyze , potential breaches
and user activity for a long time.
But we're bringing that to e discoveryWhere we can do really targeted
collections knowing, How many versionsdid you access over what period of time
that's relevant, to the case dates?
and then give you kind of a choice of whatyou want to collect so It's exciting to

(11:06):
be able to go back and get not just thatsent version but also the access versions
because I I think from my perspective ita producing party should at least have
the burden to Review those files forrelevance if it's not unduly burdensome
to have them in a review platform tocollect them and everything else, right?

(11:27):
If you have the technology to get them.
then at least have the abilityto review them for relevance.
And that the third and this is, this is,the third product is actually specifically
designed for receiving parties.
Now it could be used as a QA tool forproductions, but essentially we'll look
at a production, look at the load file,and say we see messages here where there

(11:48):
are references to hyperlinked files,and we don't see the hyperlinked files.
And so we could give you a reportthat would say it's kind of
would look like a privilege log.
Almost you'd have the metadata ofall the messages, the names of the
files, the custodians, and then beable to craft a response back of
like, Hey, these files are missing.
We think we should get, theseare the ones that we need.

(12:09):
And I think in this, as we transitionthrough this , this problem kind
of becoming solved over time, thereare cases like Henry Uber, where.
, The judge is offering a compromise,right, just settling on a compromise
saying, okay, you're going to doeither, , the 200 doc, give us 200 of
the contemporaneous version, right, youdon't have to do all of them, just do

(12:30):
200, or I think the latest compromisewas 10 docs a week, right, you get
to, you get to pick 10 that you want.
Every week.
So how do you do that?
Without having to go through full blownreview, we can let you do that from the
moment you get the production, look atthat list and then start to make , choices
about the things that you might want.

(12:50):
How do you see the treatment andchallenges of linked documents evolving?
When you read the opinions and even inthe, The uber case, , we saw where the
plants were actually suggesting, , they'regoogling for scripts and whatever other
tools they can find on the Internet thatcould potentially solve this problem.
And it's because it's a technologyproblem, it's a source data
and technology problem, and itjust hasn't been solved yet.

(13:13):
So, I think, as the technologies becomeavailable, whether it's from cloud
efficient or service providers getmore savvy with how they handle it, and
lawyers become more aware of the problem.
Then I think we'll start to see people.
I think even courts potentially saying,okay, well, we know it's possible.

(13:35):
So don't don't say it's not possible.
We know it's possible.
And we have, we're a little smarternow on what the actual burden is.
So, I think we'll start to see, compromises like we saw in the Uber
case initially in the near termand then maybe medium long term.
, no misconceptions that we're going tobe the only ones to solve this problem.
We might be the 1st, but we'renot going to be the last.
And so, as the technology gets out there.

(13:58):
, And Microsoft is going to makeimprovements and Google is
going to make improvements andbox is going to everybody's
going to going to follow along.
And we're going to see thetechnology of all when that happens.
Then, , I think we'll get into themore interesting arguments, which is.
Which version do you really want?
Which version do you need?
And then, , it'll be interesting tosee how discovery requests requests

(14:18):
for productions change now thatwe are, , we may be specifying
specific versions that we want, anumber of versions that we want.
Because imagine the technology is thereand you can do whatever you want now.
You can get the contemporaneous,all the access versions.
Well, now you just, , Increasethe discovery amount to me
at 10 X what it was before.

(14:39):
And so do you even want to receive allthose versions from the other side?
, Do we need to start negotiatingon how many versions we get?
And so that'll, that'll be aninteresting argument down the road.
Once the technology is more widespread.
This is Ari Kaplan speaking with BrandonD'Agostino, vice president of product at
Cloudfficient and information governanceand eDiscovery software provider.

(15:03):
Brandon, great to talk to you.
Yes, and
great.
Thank you for listening to theReinventing Professionals podcast.
Visit ReinventingProfessionals.
com or AriKaplanAdvisors.
com to learn more.
Advertise With Us

Popular Podcasts

United States of Kennedy
Dateline NBC

Dateline NBC

Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com

Bookmarked by Reese's Book Club

Bookmarked by Reese's Book Club

Welcome to Bookmarked by Reese’s Book Club — the podcast where great stories, bold women, and irresistible conversations collide! Hosted by award-winning journalist Danielle Robay, each week new episodes balance thoughtful literary insight with the fervor of buzzy book trends, pop culture and more. Bookmarked brings together celebrities, tastemakers, influencers and authors from Reese's Book Club and beyond to share stories that transcend the page. Pull up a chair. You’re not just listening — you’re part of the conversation.

Music, radio and podcasts, all free. Listen online or download the iHeart App.

Connect

© 2025 iHeartMedia, Inc.