Every week, the Array team reviews the latest news and analysis about the evolving field of...

An attachment is a meaty part of any email, right?
Well, maybe.
With companies heading in droves toward tools that store files online, the lines have gotten fuzzy.
Online storage means that, instead of attaching an important internal file to an email, employees can drop in a quick link. But they also can drop in links to random news articles, funny GIFs in their taglines, maps to socials, definitions of words or phrases, or a plethora of other drivel.
That means those big red boots memes can turn into a quagmire of potential headaches for companies trying to dig up relevant information during discovery.
A recent case made clear that courts wouldn’t waste time and money on searches for needles in virtual haystacks. Attachments seem clear cut as vital to the content of an email, but with links, it’s more of a coin flip, and that wasn’t a burden the court viewed as worth requiring. Given that ruling, there are several best practices that parties involved in eDiscovery must consider moving forward.
But first, it helps to understand the specifics of the ruling.
The case that drew attention to this evolving issue involved Noom, an app that uses psychological principles to help people lose weight. The fledgling company became a smash hit during the past several years, reporting surges in annual revenue and users.
But Noom landed in hot water over one of its growth strategies — offers of “risk-free” trial periods that turned into automatic renewals. The lawsuit accused Noom of tricking users into expensive renewals that were difficult to cancel.
During discovery, the plaintiffs realized that Noom employees often linked to internal files rather than attaching them in emails. The plaintiffs wanted access to these files, saying they were basically the same as attachments and should be provided as part of that document group. Noom agreed to provide certain requested documents but argued that the monetary and time costs of producing all the hyperlinked documents outweighed the needs of the case.
In the ESI protocol, the parties hadn’t specified hyperlinked documents as part of the “family groups” that needed to be produced all together. Embedded and attached documents are different from hyperlinks, the court said, because they aren’t necessarily vital to a communication in the same way as an attachment. They may be, but they may not.
Despite this kerfuffle, the parties eventually ended up settling. Noom denied wrongdoing, but the settlement amounted to $62 million.
Still, this incident should bring legal minds to attention — it is unlikely to be isolated. Noom was using Google’s office software products, and the number of businesses doing likewise is growing rapidly.
The number of paying businesses using Google Workspace products has passed 9 million, with 3 billion users, according to a recent company blog. That’s a significant jump from the reported 6 million businesses in early 2020. And to be sure, there are other apps and services where alternate types of attachments also could come into play.
These evolving tools streamline processes for businesses, avoid the need to transmit large electronic files, and allow multiple people to access and/or edit the same files. But for parties involved in legal cases, they mean new complexities.
That’s precisely why ESI protocol negotiations are so important. An effective, comprehensive agreement requires knowledge of evolving eDiscovery issues, as well as the ability to adapt.
Some basic tips can help when navigating this evolving, potentially thorny area:
Every week, the Array team reviews the latest news and analysis about the evolving field of...
What is your role at Array? What is a typical day like for you? My role at Array involves working...
MEET KRISTA Recruiter | Indianapolis, IN
What is your role at Array? What is a typical day like for you? As a project analyst, I work on...