In Episode 155, Kelly Twigger discusses the latest decision on hyperlinked files and whether Magistrate Judge required Meta to provide the hyperlinked files referenced in emails following Meta’s production in UAB “Planner5D” v. Meta Platforms, Inc. (August 26, 2024).
Introduction
Hi and welcome! This week we are broadcasting LIVE at Relativity Fest in Chicago to bring you this week’s episode of our Case of the Week series, brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education, and the Principal at ESI Attorneys. Thanks so much for joining me today, especially on our off schedule, so we could be at Relativity Fest.
As we start our broadcast, I want to give a huge shout out and thank you to David Horrigan, Relativity’s Discovery Counsel and Legal Education Director, and Janice Hollman, who is the Senior Global Academic Program Manager at Relativity, for inviting me back this year to speak at FEST, as well as to Maggie Mills and Olivia Mulvey for assisting with today’s broadcast. The team has been fantastic at helping us get set up this week. If you’re here or registered online, please join us for the case law panel tomorrow, September 26th at 1:00pm. I’m also looking forward to speaking with the Relativity scholars and mentors in the morning tomorrow.
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As you know, each week on the Case of the Week, I choose a recent decision in ediscovery and talk to you about the practical implications. This week’s decision is a very short one, just two paragraphs, but it is the latest decision in case law on hyperlinked files, and another decision from the Northern District of California, a highly technical and knowledgeable court on ESI issues.
Background
This week’s decision comes to us from the UAB “Planner 5D” v. Meta Platforms, Inc. case. This is a decision from August 26, 2024, so just a month ago, written by United States Magistrate Judge Sallie Kim. Judge Kim, as you know, if you follow Case of the Week, is a very prolific judge on discovery decisions. She has 49 decisions in our eDiscovery Assistant database, ten of which are on this matter alone. As always, we tag each of the issues in our decisions in the eDiscovery Assistant database. This week’s issues include hyperlinked files, failure to produce, and in camera review.
Facts
The plaintiff, UAB “Planner 5D”, alleges that defendants Princeton University, Meta Platforms and Facebook Technologies, LLC, misappropriated plaintiff’s trade secrets and infringed on plaintiff’s copyrights by scraping plaintiff’s works and then converting them into a computer vision tool called the SUNCF data set and that defendant Meta used that tool to develop products and services in the scene-recognition market, which is a key component of the metaverse.
Timing is always critical on the Case of the Week, and it’s important to consider that the original complaint in this matter was filed on June 5, 2019, so more than five years ago, before we were even having conversations about hyperlinked files. As I mentioned, this is one of ten discovery rulings in this matter to date, all of which are in our database.
In this current dispute before the Court, which is filed on joint letter briefs, the plaintiffs are asking the Court to compel Meta to produce documents that are “identified as ‘hyperlinks’ in documents” that Meta has already produced. Pay attention to that, because you can probably already see where this is going.
Plaintiff argued that the hyperlinks to other documents in the produced responsive documents are “akin to attachments to emails that a party must produce.” Meta responded that hyperlinked documents are different from attachments to emails because searching for hyperlinked documents and reviewing them requires time and effort that is not required for producing an attachment to an email. Plaintiff argued that the title of the documents at issue makes it “obvious that the hyperlinked documents are relevant and responsive to its requests.” In return, Meta argued that it has reviewed the specific documents that the plaintiff requests and determined that the documents are either not relevant or privileged.
With that, we’ve set the stage for this hyperlinked files argument, where we are looking at documents that are hyperlinks found by the plaintiffs in documents that Meta had already produced, not that we are trying to negotiate for or get in advance of production. You can already see that there will be challenges there.
Analysis
Let’s look at the Court’s analysis. Judge Kim agreed with Meta that hyperlinked documents are not the same as attachments to emails. That’s consistent with the case law that we have to date. The Court pointed to the effort required to search for them as being substantially greater than the effort required to produce attachments to emails. Also correct. And we know from looking at all of the case law the effort that many parties have expended trying to meet the requirements of producing hyperlinked documents.
But the Court also noted that here, Meta has reviewed the specific hyperlinked documents and assessed them for relevance and privilege, so the general burden to produce hyperlinked files is not an issue in this specific dispute. Plaintiffs argue that the documents are relevant and ask the Court’s assistance in requiring Meta to produce them, essentially asking for an in camera review of the documents. Here’s where there’s a quote from the Court that’s very important that I want you to think about:
Courts rarely get involved in assessing specific documents for relevance but rather make general orders about categories of documents that a party must produce. Courts in general rely upon parties to assess relevance, and the system of discovery is based on trust that a party produces documents after a review and assessment for relevance and responsiveness. Here, it is possible that Plaintiff is correct and that Meta is required to produce the documents, but the only way the Court can assess the Plaintiff’s theory is to review each of the documents in question. The Court cannot engage in that practice. With that, the Court denied plaintiff’s request to compel the documents identified as hyperlinks withheld by Meta.
Takeaways
What are our takeaways? Well, there are a number.
First, if you’re asking for documents at hyperlinks after the party has already produced the underlying document, you’re not going to get them. We know that consistently from the case law. We saw that in Nichols v. Noom Inc. in 2021, and there’s no reason for that to be different here. We covered that original decision from Judge Parker in Nichols v. Noom Inc. in Episode 20 on Case of the Week, and the District Court’s affirmance of Judge Parker’s decision in Episode 25. All of those will be linked for you in the comments or the notes.
I was curious whether the parties anticipated this issue of hyperlinked files at all when the Complaint was filed back in 2019. So I went back and reviewed the ESI protocol that the parties entered into in December 2021, almost nine months after the Nichols v. Noom decision and eight months after the District Court’s affirmance of that decision. The protocol mostly mirrors the sample protocol from the Northern District of California, which many of the judges there require with no mention of hyperlinked files. It is, however, in my view, out of date, and I suggest updating yours and being able to propose some additional information to include in that protocol if you’re negotiating in the Northern District of California. The protocol did, however, provide for the parties to be able to amend it as necessary by stipulation of the parties or by the Court for good cause shown. So this is something that the plaintiffs could take back up with the Court to amend the ESI protocol for future documents, not those that have already been produced because those are not Meta’s requirements to reproduce documents in two forms.
Now recall that in In re StubHub Refund Litig., which we covered in Episode 144, StubHub agreed to produce documents from hyperlinks and had to go back to the Court and seek to amend the ESI protocol for good cause, because current technology at the time did not allow it to provide those files despite hundreds of hours that they spent trying. Having that good cause language is what saved them, and that’s what the plaintiffs have here, so they’ll need to be able to leverage that going forward. The Judge in StubHub allowed them to amend and did not require production of the documents at the hyperlinked files. Of course, that was after StubHub spent quite a lot of money in attorneys’ fees and technical expertise trying to solve that problem.
This is all key, because there’s an underlying lesson that says you really need to know what’s happening in eDiscovery on case law on issues that may come up. The decision in Noom was extensively discussed in the eDiscovery universe, and if plaintiffs had been aware of it, it may have changed their ESI protocol and the issue before us. It’s incredibly difficult, but also incredibly important, to stay up to speed on these issues.
Here in the case we’re discussing, of course, we have another layer — and that is that Meta said they reviewed the documents in question and said they were privileged. Plaintiff disputed that, but the decision did not include any underlying factual basis for plaintiff’s suspicions.
What I did note, though, is Judge Kim’s refusal to review the documents in camera. If you’re not familiar with it, an in camera review is where one party or multiple parties on the same side ask the court to look at documents and decide whether they should be produced. Remember that I’ve mentioned here on Case of the Week multiple times that we’re seeing a lot more requests by parties for courts to conduct an in camera review on documents, and we’ve also discussed how that is just completely impractical.
Judge Kim’s statements that our system is based on a level of trust is exactly right. It is the same for both parties. Our courts are overburdened and understaffed for the litigation loads they face, and many courts in this country cannot get a full slate of judges because of political issues. So while the refusal to engage in an in camera review may place a burden on the plaintiffs here that they never could meet, the reality is that you have to have a factual basis to get that in camera review, and we don’t see that in the four corners of this decision. Remember, we always stay within the four corners of the decision for purposes of Case of the Week. I did go back and look at the ESI protocol here, but on a really concrete issue.
Let’s turn to Judge Kim’s statement that “hyperlinked documents are not the same as attachments to emails.” I don’t think that you could find an eDiscovery practitioner that would disagree with that statement from a practical perspective. They are not physically attached the way we are accustomed to dealing with attachments, and we don’t have technology to deal with hyperlinked files. Interestingly, though, what the Court points to — and it’s the first time we’ve seen this — is that “the effort required to search for them is substantially greater than the effort required to produce attachments to emails.”
I’m not sure that that is what distinguishes them, but Judge Kim is not wrong. The effort required to collect and provide hyperlinked files with the original linking document is mostly manual and incredibly painful. That fact, however, does not change that the data in a document that used to be physically attached to an email is now only linked in that same email. The value of the information in the linked document and its relationship to the original linking document is just as important in litigation as what we call an attachment. They just aren’t the same, and technology precludes us from capturing the right version of the linked document from that email.
The effort piece is notable, because the case law requires a “reasonable effort.” Right now, depending on how many hyperlinked files you have, the effort to collect them may not be reasonable at all. That’s why we’ve seen some courts that we’ve covered here on Case of the Week talking about a sampling — i.e. “We’ll agree to give you X hundred hyperlinked files or certain ones that you find that are relevant.”
What we do not have here in this decision is any further clarity on a party’s obligation to produce hyperlinked files. So we’re left with earlier decisions which tell us that courts will only order what current technology allows for a party to do with a reasonable effort as required by the Federal Rules of Civil Procedure. We just covered this entire topic and all of the case law, where the courts stand, in a webinar that I just did with Doug Austin and Brett Burney recently. If you’re an eDiscovery Assistant user, that is available in the Academy. If you’re interested in seeing that, just shoot me an email and I will get you hooked up with a link to that information.
One last note, and that is that Judge Kim heard this motion on letter briefs. The Northern District of California hears an incredible number of discovery disputes, and letter briefs are a fantastic way to limit the pages and ensure the parties tee up a concise dispute for the judge to rule on quickly and keep the case moving. Know whether you can utilize such a procedure in the court you’re in or flat out ask the judge if you can utilize that process for discovery disputes at the Rule 26 conference. It will move things forward faster and it will save your clients a lot of time and money. It’s also better for the litigation process as a whole because you can get rulings and move on from that stage into the next stage of your discovery process, knowing whatever it is that the court decides.
Conclusion
That’s our Case of the Week for this week. Thanks so much to Relativity for having us live from Relativity Fest this week! As always, if you have suggestions for a case to be covered on the Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.
