Hyperlinked files are one of the trickiest issues in modern ediscovery. This blog pulls from four Key Discovery Points videos with Brett Burney of Nextpoint and Doug Austin of eDiscovery Today, highlighting how courts are grappling with hyperlinked files and what legal teams need to know to stay compliant.
Untangling Hyperlinked Files in eDiscovery
The shift from traditional email attachments to cloud-based file sharing has created one of the most complex challenges in modern ediscovery. When colleagues send links to Google Drive documents instead of attaching Word files, the legal implications are complex, despite the simplicity of the technology itself.
These hyperlinked files, which live in the cloud rather than embedded in communications — are forcing courts to rethink fundamental discovery concepts like possession, custody, and control. Should you collect the document version that existed when the link was sent, or the current version? Who controls a file that lives in someone else’s cloud storage? These aren’t just technical questions — they’re discovery obligations that can make or break a case.
Brett Burney of Nextpoint and Doug Austin of eDiscovery Today have been tracking how courts are grappling with these issues through our Key Discovery Points series. Here are four critical discussions that illuminate the key challenges and emerging solutions around hyperlinked files in ediscovery.
1. Should Hyperlinked Files Be Treated as Modern Attachments?
The fundamental question driving much of the hyperlinked file discussion is deceptively simple: When someone sends you a link to a file, should the linked content be treated like a traditional attachment for discovery purposes? The answer has profound implications for collection obligations, preservation duties, and strategic ediscovery planning.
Brett and Doug explore how courts are beginning to treat hyperlinked files as “modern attachments,” recognizing that the underlying communication purpose remains the same even when the delivery mechanism has evolved. This shift in judicial thinking reflects a broader understanding that technology shouldn’t dictate legal obligations — but it also creates new complexities around timing, access, and control that legal teams must navigate carefully.
If hyperlinked content is treated as an attachment, it may need to be preserved and collected just like traditional attachments. But unlike static email attachments, linked files can change over time, creating unique challenges for maintaining litigation integrity while respecting the dynamic nature of cloud-based collaboration.
2. Collecting Hyperlinked File Versions – Contemporaneous or “As Sent”?
One of the most challenging aspects of hyperlinked files is determining which version of a document should be collected and produced. Unlike traditional email attachments that are frozen in time when sent, hyperlinked files often continue to evolve after the communication occurs. This creates a critical decision point: Do you collect the “contemporaneous version” that existed when the link was shared, or the “as sent” version that reflects any subsequent changes?
Recent case law, including insights from In re Uber Technologies, Inc., reveals how courts are approaching this complex issue and what factors influence their decisions. Brett and Doug break down the legal implications of each approach, helping practitioners understand when each version might be more appropriate and how to argue effectively for their preferred interpretation.
This analysis also reveals the importance of early case assessment and Meet-and-Confer discussions around hyperlinked files. The version question should be addressed proactively in ESI protocols rather than left to chance, which could lead to discovery disputes that derail your timeline and budget.
3. Think About Who Has Control Over a Hyperlinked File
The concept of “possession, custody, or control” under Federal Rule of Civil Procedure 34 becomes surprisingly complex when applied to hyperlinked files. Who has control over a Google Drive document that’s shared via link? What about a podcast file hosted on a third-party platform? These questions can determine fundamental ediscovery obligations and influence case outcomes.
Hubbard v. Crow provides a fascinating case study in how courts approach these issues when technology doesn’t fit neatly into traditional legal categories. The case involved a hyperlinked podcast file that presented multiple complications like broken links, edited recordings, and corrupted storage devices. These technical challenges forced the court to grapple with deeper questions about digital evidence preservation and spoliation under Rule 37(e).
Brett and Doug unpack the court’s reasoning and explore what this ruling means for future ESI collection strategies. The discussion reveals how practitioners need to think proactively about access, control, and preservation duties when hyperlinked content is involved, and how to document these efforts to protect against potential spoliation claims.
4. May the Sales Force Be With Your Hyperlinked Files
Not all digital content is created equal in the eyes of the law, as demonstrated in Young v. Salesforce, where the court made important distinctions between different types of technical discovery requests. While the court denied source code discovery — recognizing the significant burden and limited probative value the production would entail — it ordered disclosure of relevant hyperlinked materials, treating them as standard discoverable content.
This ruling illustrates how courts are developing nuanced approaches to different categories of digital evidence. Source code, with its proprietary nature and technical complexity, receives different treatment than hyperlinked documents that serve more traditional communication and collaboration functions. Brett and Doug explore what this means for legal teams dealing with technology companies and cloud-based platforms.
This case also highlights the evolving judicial understanding of how modern businesses operate. Courts are increasingly recognizing that hyperlinked sharing is a standard business practice that shouldn’t automatically trigger the heightened protections reserved for truly sensitive technical information. This trend suggests that arguments for treating hyperlinked content as uniquely burdensome or proprietary are likely to face skeptical judicial review.
★ Stay Informed with Nextpoint
Hyperlinked files represent just one facet of how technology is shaping legal practice, but their impact on discovery is already significant and growing. Stay ahead of these developments with Key Discovery Points, where Brett and Doug continue to decode the intersection of technology and law.
And, check out our on-demand webinars, where Kelly Twigger of Minerva26, in addition to Brett and Doug, tackle the ongoing challenges surrounding hyperlinked files:
