Episode 25 of the ACEDS #CaseoftheWeek looks at the decision stemming from an objection on Nichols v. Noom Inc. original decision stating that hyperlinked documents are not attachments.
Good morning and welcome to our #CaseoftheWeek for May 18th, 2021. I am Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. Thanks for joining me live from the mountains of Vail this week. We’ve had a fabulous weekend here at Solaris in Vail, courtesy of Inspirato.
Through our partnership with ACEDS, each week, we bring you a different case in eDiscovery and discuss the practical implications of what that case means for you, your clients and your practice. No matter which platform you’re watching on, you’ll see in the comments links to the public link for the case that we’re going to discuss today, the Nichols v. Noom Inc. decision from the District Court. You’ll see the link to our blog post from Episode 20, where we covered the magistrate’s decision in Nichols v. Noom. You’ll also see a link to our 2020 Annual Case Law review report. We’ve also just launched our new website at eDiscoveryAssistant.com. Please feel free to hop over and take a look there.
All right, let’s get into our #CaseoftheWeek. This week, we’re looking at the District Court’s decision following our discussion of the Magistrate’s decision back on April 13th in Episode 20 in the Nichols v. Noom matter. If you saw that case or you want to link to it on the blog, you can read the complete background of the facts. This is the decision from Judge Schofield, who is the United States District Judge tasked with the Nichols v. Noom case. Her decision comes from April 30th of 2021, following an objection to Magistrate Judge Parker’s decision on hyperlinks in documents.
As I mentioned, if you’ve watched our previous discussion on this case, you know that this case presents a novel issue before the court, namely how the parties have to collect and produce documents in emails that are hyperlinked versus being physically attached to emails as what we commonly referred to as an attachment. In Nichols, Noom, who was the defendant, used Google Apps to manage email and documents.
If you’re not familiar with it, documents and spreadsheets are stored in Google Drive and links to those documents are shared with collaborators through emails. The recipient receives a link to a document that has been set up to be accessed by the user’s email address. You’ll have emails sharing the file that comes from the Google Drive and then emails in which a user may reference a link with additional text. Both require access to the document to be able to view it.
Traditional email collection tools that we would use for any other kind of email, including Google Vault, do not capture hyperlinked documents as attachments. That’s the issue that we’re faced with here.
If you recall from our previous discussion, the Noom case is a class action litigation alleging that Noom failed to allow subscribers to cancel their subscriptions. Noom agreed to collect and did collect relevant data from Gmail with a long list of metadata. I went back and looked at the ESI protocol in the case, and while there’s a long list of metadata, there’s nothing that specifically deals with any kind of fields related to hyperlinked data, and I think that’s one of the things we’ll have to investigate as we go forward, whether there’s an additional metadata field from Gmail that would have helped us in this kind of situation where we’ve got these hyperlinked documents.
The parties advise the Court that they agreed to Noom’s use of Google Vault to collect documents from Google Drive, even though file path metadata was not available for documents that were collected that way. The parties did disagree on the use of Google Vault to collect emails from Gmail. That’s what Noom used. That’s a tool that’s built into Google to allow you to collect directly from Gmail. Those documents come out as an Mbox file and can easily be converted, but it is a different file type that your Lit support folks will need to be able to handle.
In this case, because the plaintiffs were concerned about getting mail from Google Vault, they asked Noom to use a forensic tool that would have allowed the links to be collected with the associated documents and provide metadata in the same way that attachments are normally handled with documents. The main issue here is that the Google Vault collection would not pull all the documents referenced by the hyperlink.
In the case that was before the magistrate judge that we discussed back in April, Noom’s expert had stated that Google Vault was an industry accepted tool and a reasonable collection tool that was used by the majority of Google business clients, and that the collection of emails using the forensic tool would result in a significant number of duplicates in its review population.
Duplication was one of the issues that Noom cited for using the Google Vault tool, also additional cost. The Court then allowed Noom to use Google Vault and held that if there were certain documents that were discovered in the production containing hyperlinks for which the hyperlink document could not otherwise be found. Meaning that, Noom was going to produce documents from Google Drive that would otherwise be attachment to emails and emails separately with the links in them, and the question is whether or not the plaintiffs would be able to tie those links specifically back to those documents that were produced from Google Drive without a corresponding metadata field.
The Court allowed Noom to use Google Vault and said that if the plaintiffs identified certain documents that they discovered containing hyperlinks for which the document could not be found, that they could then raise the issue with Noom and Noom could provide that document again.
Based on that agreement, Noom collected everything using Google Vault and reviewed and produced all the information. We’ve already engaged in the discovery process, we’ve already produced documents, and then the plaintiffs in the initial decision went back to the Court on a motion to reconsider and said, look, we’ve gotten the initial productions from Noom and now we’ve got thousands of documents with hyperlinks in them that we have no way to correspond back. Judge Parker took a look at that and said, well, I’m seeing a lot of these documents aren’t relevant to your case, Noom is telling me it would cost $180,000 to go and recollect them and re-deal with this issue and based on the fact that they’ve already done the discovery, proportionality considerations do not permit that.
The larger problem in that particular case is that Judge Parker ruled that hyperlinks were not attachments as a blanket general rule, and that’s really where the technology comes into play here, that we just have kind of a non-understanding by the Court of what exactly that means when you come to that interpretation that hyperlinks are not attachments.
We talked about that specifically in the April 13th ruling on our Episode 20. Take a look at that. When we dug into the specifics on the technology and how that affects Microsoft teams and the increased usage there, as well as Google Apps. What we’re going to be moving to technologically is everybody using hyperlinks to documents rather than attaching files, one, due to storage space, two, due to easy collaboration.
In this particular case, the plaintiffs then objected to the magistrate’s order and before us is really the District Court’s consideration of what Judge Parker said in her initial order.
Now, this is a short decision, and the Court really summarily addresses the objection. They did not do any further analysis of the implications of the finding that hyperlinks are not attachments. There’s no consideration here of the technological implications of Judge Parker’s decision. I think that’s important because it really leaves us with what Judge Parker said, as opposed to creating a subsequent record with really emphasizing that that is, in fact, the case.
The court really summarized the magistrate’s order with four separate findings, one, that a hyperlinked document is not the same as an attachment. Again, just summarizing the magistrate’s order, not refinding that information. Two, that the party’s protocol for the production of ESI did not address the production of hyperlinked documents. Three, that the plaintiffs did not make a showing that all or even a majority of the hyperlinked documents were material to the litigation. And four, that the production of a new collection of documents would be redundant and expensive.
The District Court held at the magistrate’s ruling was based on a proportionality analysis that was consistent with Rules 1 and 26, and on Rule 34, which requires a party to produce documents in a reasonably usable form.
That’s a problematic finding with regard to rule 34, because reasonably usable form is something that we’re struggling with a lot with ESI issues lately. We’ve got some courts who will say that a non-searchable PDF is a reasonably usable form. We’ve got other courts who will hold that native is what’s required. If that’s what one side has, they should provide it to the other side. I’m struggling to find a good rationale for how not being able to relate a document that’s hyperlinked in an email is producing information in a reasonably usable form when there’s no way for the receiving party to be able to link those two documents back together.
Ostensibly, the Federal Rules require that the data that one side has or the ESI that one side has, is produced to the other side in a way that does not minimize access to that information, and by creating a situation here where hyperlinked attachments are not considered attachments for for purposes under a protocol, we are in fact giving the receiving party less information than the producing party has. The producing party has ease of access to those documents, or at least to know and understand whether those hyperlinked documents are still available. The receiving party in this case does not.
That’s a big disconnect, I think, in this decision and with the underlying principles of the Federal Rules of Civil Procedure. I actually think that it’s just something that courts aren’t aware of. I think we need more education in this space for this Court to really understand the technological implications.
Now, as we talked about in our April 13th discussion, the Court here had some things in front of it that you might not otherwise have if you were arguing about this prior to the collection. Noom had already done the collection. The plaintiffs disputed that they should be allowed to use Google Vault, and the Court said, OK, well, we’re going to use Google Vault and you can come back to them with a reasonable number of documents that you can’t figure out how to hyperlink them. The plaintiffs then said there are thousands.
I think one of the big challenges here is that as you look at the language of the ESI protocol, it didn’t really lay out specifically what those objections were to have them documented in the ESI protocol.
Again, that reasonably usable form issue with regard to rule 34 I think is problematic in this decision and I think that it’s something that we need further education on from the courts, butI also think it’s something that the parties need to deal with in an ESI protocol so that the judge has something to look at specifically.
The standard of review on the objection is another important point here, because we are starting to see, in eDiscovery Assistant, a lot more objections to the magistrate decisions and the standard of review under rule 72 is whether any portion of a non-dispositive order is clearly erroneous or contrary to law. As you know that’s a very, very high standard to meet. Based on the analysis that Judge Parker did in her initial assessment of the case, there really wasn’t anything that was clearly erroneous or contrary to law. There is no law that says that a hyperlinked document is an attachment. That particular issue wasn’t contrary to anything she came down with, and as we discussed on April 13th, her considerations of proportionality were completely valid and totally on point.
What the Court actually did say was that the Magistrate’s decision properly relied on rule 26 governing the scope of discovery and proportionality, and found that the that Judge Parker’s order addressed the needs of the case and in allowing plaintiffs to request documents that were hyperlinked that they could not otherwise link back to original emails from Noom. It also noted that presumably some of the hyperlinked documents will be of no import or will link to external sources like the Internet, or we’ll have independent significance not necessarily related to the document to which they were hyperlinked.
That was a big issue for both judges in this case, that there were not specific documents identified, at least in the decision. Whether there were in the briefing or not, I don’t know. At least in the decision, there were not specific documents identified to know what the scope of the problem was here.
The Judge rejected the plaintiffs arguments that document families must be preserved based on the case law that was cited and said that the judge’s ruling that the fix was not inexpensive was correct and there was nothing provided by the plaintiffs to refute. That’s pretty much exactly in line with what we talked about when we addressed Judge Parker’s decision back in April.
On all those bases, the District Court denied the plaintiffs objection to overturn the Magistrate judge’s ruling, and where we’re left is that the plaintiffs here will have to provide an itemized list to Noom of documents that they cannot otherwise determine the parents for that are hyperlinked. I’m sure we’re going to see subsequent decisions on discovery in this case.
What are some of the takeaways? As I mentioned, the Magistrate Judge’s blanket ruling that hyperlinks in emails are not attachments is going to stand. That will continue to be an issue that’s litigated and hopefully, as it’s litigated, we’ll see some important information put in, whether it be a declaration, testimony, or affidavit, about the technological implications of that kind of ruling and what that legitimately means for parties and the disparate nature of information that’s being produced to the receiving party, if that is the standard going forward.
Next takeaway is what we always talk about. Plan, plan, plan for your protocols and how you will deal with hyperlinked documents before you agree to a protocol. Here the parties did not address hyperlinks in their protocol. I took a look at the protocol, its is a good protocol. It’s very detailed. It walks through many, many issues associated with dealing with ESI in a very constructive fashion. The beginning paragraph of the protocol says, and I think this is a part where the parties probably just didn’t get enough language in there to be able to create an issue for the Court, but the first paragraph of the protocol says, “Insofar as the parties have not been able to reach full agreement on a protocol for the production of ESI, the following discovery plan shall govern the search and production of ESI in this matter.” That’s good language to state that there’s disagreement, but it doesn’t say on what, and it doesn’t carve out the ability to leave the issue open so that the court can address it.
You need language, proposed language, in your protocol that says to the extent additional issues arise, the parties will meet and confer and then conduct or seek the Court’s input on how best to proceed. Now, ultimately, that’s what happened here, but what the Court fell back on is you didn’t talk about this in your protocol. Again, we talk about this every week. You’ve got to know and understand the technology issues inherent in your data. If you don’t know all of them, then you need a more blanket protocol that deals with all of these technology issues so that it can be there if it’s there, it can be in the protocol if necessary.
We are finding a lot of decisions where the courts are looking at the scope of what is written in the ESI protocol and when it’s not there, the courts are using that as a weapon against the party looking to have something inserted in it.
Finally, the standard of review on objection to the District Court is high, and you’re subject to facts that are before the magistrate as well as at the higher levels of appeal. The takeaway from that is you have got to put in everything you need to educate the court and put all of the facts before the judge, and you’ve got to recognize that when you’re putting these kinds of novel eDiscovery issues before the court, you’re creating law for everybody across the country because we’re looking at what other courts are doing. There is not enough development of case law on all of these highly technical issues in every jurisdiction across the country. We’ve got to be able to reference other cases from other jurisdictions.
Of course, the 9th Circuit is rife — 9th Circuit, 2nd Circuit, 7th Circuit, Florida District Courts — huge in terms of the development of case law, especially over the last three to five years. We’ve got to be able to remember that as you’re putting this information in for your case, you’re creating case law for the rest of the country. Be thoughtful. Plan, plan, plan. Keep your facts in. As always, it’s easy to be a Monday morning quarterback on our #CaseoftheWeek sessions, and I think that it’s difficult in dealing with these new technology issues as they arise.
That’s our #CaseoftheWeek for this week, thanks so much for joining me. I’ll be back next week in Boulder with another edition of our #CaseoftheWeek from eDiscovery Assistant. If you are an ACEDS to member and interested in using your eDiscovery Assistant to study for your exam, there’s a discount. There’s a free trial available for those studying for the exam and a discount available to current ACEDS members. Just drop us a line at ACEDS@eDiscoveryAssistant.com and we’ll get you hooked up. If you’re interested in doing a free trial of our case law and resource database at eDiscovery Assistant, please just jump over to eDiscoveryAssistant.com and sign up to get started. You can also reach out to us support@eDiscoveryAssistant.com, and we’ll get you going.
That’s it for me. Have a great week. Stay safe and healthy. I’ll see you next week. Thanks.
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