Whether we refer to them as “linked documents” or “modern attachments,” gathering the information contained in these files poses an increasing challenge in the ever-evolving e-discovery landscape. I had the privilege of moderating a discussion on the risks and protocols regarding the preservation, collection, and review of these unique records with ACEDS Global Advisors Board Members Amy Sellars, E-Discovery Counsel at Gunster, David Horrigan, Discovery Counsel and Legal Education Director at Relativity, and Tom O’Connor, an independent litigation technology consultant.
During our one-hour webinar, these leaders highlighted the key issues to consider, shared best practices for addressing them, and provided recommendations for adapting to the rapidly evolving technology landscape. I have summarized some of their insights below, but you can watch the entire program here.
Recognizing a “Modern Attachment”
A modern attachment commonly describes files linked within cloud-based documents, such as Google Docs, Microsoft Teams, or Slack, but that are not physically part of an email or message. Instead, they appear as hyperlinks. “These documents are increasingly becoming the default in modern collaboration environments,” said Amy Sellars, E-Discovery Counsel at Gunster, who explained that they have become widespread with the rapid adoption of cloud tools during the pandemic.
The challenge of this development is that the legal industry is still adapting to this shift. “Traditional e-discovery workflows were not designed with these types of files in mind, so the challenge is not just technological; it is also conceptual,” advised David Horrigan, Discovery Counsel and Legal Education Director at Relativity.
Navigating the Risk of Incomplete Collections
The panelists emphasized that a significant concern associated with modern attachments is the risk of incomplete or misleading data during discovery. A hyperlink in an email may point to a document that can be edited or deleted without notice, and without proper version control, legal teams might ultimately review content that differs from the original source material. “You can’t preserve what you don’t collect, so if you’re not treating linked documents as part of the core communication, you’re missing part of the conversation,” cautioned Tom O’Connor, an independent litigation technology consultant. He recommended more comprehensive planning and the use of tools to preserve linked documents at the earliest opportunity.
Leveraging Proper Preservation Protocols and Practical Strategies
Preservation requires both awareness and action. “You must ask the right questions at the beginning to identify whether and how teams are using shared drives, in which programs, and how they are managing them to develop defensible collection plans,” noted Sellars, highlighting the value of clear client communication. “Legal hold processes must evolve, and teams must understand how the systems under review store metadata, version histories, and access logs,” added Horrigan, emphasizing the importance of cooperation between legal and IT departments.
Calling for Industry Standards
The panel agreed that the legal industry would benefit from uniform standards and that courts may not fully understand the challenges associated with linked document evidence, leading to best practice and judgment variations. “We need to shift from reactive solutions to proactive design because this issue is no longer emerging; it’s here,” advised Horrigan.
Looking Ahead and Linked Documents
The panel acknowledged that the legal community is concentrating on innovation and developing more efficient workflows in response. As more practitioners tackle the challenges associated with linked documents, the profession will likely adopt uniform protocols, and new tools will assist in implementing them. Begin by establishing a defensible protocol for collecting links and their associated documents, utilize technology to automatically capture snapshots of linked content, and educate review teams to regard links as potential evidence.
[View source.]
