- Modern attachments (cloud attachments) are hyperlinks in emails and documents that point to cloud-stored files, offering enhanced security, collaborative editing capabilities, and reduced storage needs, but creating significant challenges for electronic discovery processes.
- Key technical and legal challenges include maintaining document “family” relationships, capturing the correct version of dynamic documents, processing large volumes efficiently, and navigating licensing limitations that affect collection completeness.
- Recent court cases like Nichols v. Noom (2021) and In re StubHub Refund Litigation are reshaping how modern attachments are handled in legal proceedings, with technological feasibility becoming an important consideration in production obligations.
What Are Modern Attachments?
Modern attachments, also called “cloud attachments,” are hyperlinks embedded within emails, documents, or messaging platforms that direct users to files stored in cloud-based repositories rather than being physically attached to the communication. Unlike traditional attachments incorporated directly into email files, modern attachments exist as hyperlinks pointing to source files in platforms such as Microsoft OneDrive, SharePoint, or Google Drive.
These modern attachments serve multiple purposes:
- They provide enhanced security access controls at the document level to address data security and privacy concerns
- They enable multiple users to access and collaboratively edit the same document
- They reduce storage needs by eliminating duplicate copies of the same file across multiple emails
In today’s increasingly digital workplace, a subtle but profound transformation is unfolding in how we share information. Traditional email attachments—those files directly embedded within messages—are gradually being replaced by hyperlinks pointing to cloud-stored documents. While this shift offers numerous advantages for collaboration and security, it has created significant challenges for the electronic discovery (eDiscovery) process in legal proceedings.
The Technological Shift
This transition toward modern attachments has accelerated with the widespread adoption of Microsoft 365, Google, and other cloud-based storage solutions. The technology has become deeply embedded in everyday business communications, with modern email increasingly adopting features previously associated with collaborative platforms like Teams, Slack and others.
Impact on Electronic Discovery
The Fundamental Challenge
Modern attachments have disrupted traditional eDiscovery processes in several significant ways:
- Family Relationships: They challenge the long-established concept of document “families” in eDiscovery, raising questions about whether hyperlinked files should be considered part of the original communication or as stand-alone documents (or ignored as extraneous links to websites, which was a misread of the issue in the Noom decision). Depending on the definition of these hyperlinks, we potentially alter the probative value of the evidence.
- Dynamic Content: Unlike static traditional attachments, modern attachments point to documents that can be edited over time by multiple users, making it difficult to determine which version was transmitted at the time of the original communication
- Defensibility Concerns: The dynamic nature of these attachments creates potential completeness and defensibility issues for legal teams attempting to fulfill discovery obligations
- Increased Collection Complexity: The process of identifying, preserving, and collecting modern attachments is significantly more complex than for traditional attachments. Special forensic procedures and tool sets may be required to obtain reliable, defensible and accurate evidence.
The industry standard requires producing documents together with their family members, but modern attachments complicate this process by raising the question: “does a hyperlinked attachment create a family?”
Technical Issues in Collection and Review
The Standard vs. Premium Dilemma
One of the most significant technical challenges involves Microsoft licensing limitations. Premium eDiscovery automatically collects modern/cloud attachments and maintains their family relationships according to the long-accepted eDiscovery paradigm. Standard licensing, however, leaves modern attachment content behind, with only a reference to their existence.
This licensing distinction creates potential gaps in collections for organizations without Premium licenses, which can lead to incomplete productions and potential legal complications.
Collection Challenges
Specific technical issues include:
- Version Control: Capturing the correct version of a linked document as it existed at the time of the communication
- Preservation Integrity: Maintaining the context and integrity of these attachments is crucial for admissibility in legal proceedings
Relevant Case Law
The legal landscape regarding modern attachments continues to evolve, with several key cases shaping practice:
Nichols v. Noom Inc. (2021)
This March 2021 decision from the Southern District of New York reached the unexpected conclusion that hyperlinks to documents stored in Google Drive locations, which appear in the body of the subject Gmail collection, did not constitute ‘attachments’ in the traditional sense of eDiscovery. This ruling challenged two decades of accepted eDiscovery practices. Notably, this decision as been nearly universally rejected by thought leaders in the eDiscovery space as wrongly decided.
In re StubHub Refund Litigation
This case illustrates the courts’ evolving approach to modern attachments. Initially, the court required production of hyperlinked documents after the parties agreed in an ESI protocol that they would be treated like traditional attachments. However, when StubHub later demonstrated the “extraordinary cost and burden of retrieving ‘as-sent’ versions,” the court modified its order. This case shows that technological feasibility is becoming a key consideration in production obligations.
In re Uber Technologies, Inc. Passenger Sexual Assault Litigation (2024)
This recent case from April 2024 sets a significant precedent for eDiscovery practices, specifically related to modern attachments. While specific details about the ruling are limited, it appears to be a landmark case in the evolving jurisprudence around modern attachments.
Best Practices and Solutions
Experts recommend these approaches for handling modern attachments:
- M365 collections should be handled by trained practitioners who are fully versed in the latest developments regarding M365 workloads and data types.
- Wherever possible, modern attachments should be collected from the outset to avoid potentially negative consequences that are very difficult to correct after the fact.
- In most situations, the marginally higher costs and time needed to collect modern attachments from the outset are offset by the benefits of dramatically reduced risk and improved defensibility.
Some technology providers have developed solutions to address these challenges, including tools that provide full support for modern attachments in MS Mail and Teams without requiring a Premium (E5) license.
Conclusion
Modern attachments represent a significant challenge to traditional eDiscovery practices, requiring legal professionals to adapt their approaches to preservation, collection, review, and production. The technical complexities and evolving case law make this an area that demands ongoing attention and expertise.
As organizations increasingly adopt cloud-based collaboration tools, the challenges posed by modern attachments will only grow in significance, making it essential for legal professionals understand the technology or consult with experts who do, in order to develop strategies to address these issues effectively.