Key Discovery Points: Keep Learning and Talking about Hyperlinked Files – Don’t Dismiss Them!

Welcome to your key discovery point. I am Brett Bernie from Nextpoint joined by Doug Austin of eiscocovery today. Doug, we are no stranger to the question of hyperl files or the discussion of hyperl files. Uh especially in discovery obviously I know that we both take advantage of any opportunity that we have to learn more about them to hear what others are talking about them. So, I was interested in this post where you covered 10 takeaways from the Georgetown webinar on hyperlink documents, eiscocovery best practices. Uh, there's some really good nuggets in this one. >> Yeah. Um, this was a webinar they did about a week or so a before the Georgetown conference. Uh, but it was but it was sponsored by Georgetown Law. Um and um had uh you know a terrific u terrifically moderated by Phil Favro. Um they had they had Paul Mcvoy of Rapario. They had David Robbins of Microsoft. Uh Leanne Mancari of Coington and Burlington Coington and Berling excuse me. And then they had Judge Parker uh who of course was the judge on the Nicholls v N one of the very first cases involving files. So obviously very interested to hear what some of uh you know what some of the takes were going to be and so forth. So, uh, so yeah, I, you know, I I listened, took some notes and kind of made some notations of some of the more notable, uh, um, you know, items in there. And, you know, just we won't hit them all here, but a few of the ones that I thought particularly stood out. Um, one is, um, uh, uh, David Robbins of Microsoft said, you know, maybe using the term cloud attachments wasn't the best idea, um, by Microsoft, which is interesting that, you know, and he and and then he kind of pretty much disavowed. I had nothing to do with naming him cloud attachments, >> which I thought was interesting. Uh but one of the things that he also noted um because I've heard conflicting uh kind of t takes on just how uh you know how much we're seeing the hyperlink files. He said that he's seeing a rapid surge in the use of hyperlink files. Um and um you know and I think that uh um you know the for you know for example teams only use hyperlink files uh so they don't really have the traditional attachments and then Paul McVoy um you know kind of used uh some stats he said he got from chat GPT uh but still um I I I uh basically cross-cheed against the internet minute infographic I did a couple years ago and basically said 76 billion uh emails per day with some sort some sort of attachment and by 2030 as much as half of those would have h links as opposed to embedded attachments. So that'd be 38 billion files a day. So it's it's definitely a growing problem or a growing challenge and certainly one that has to be addressed from a discovery standpoint. >> You know, I'm glad that you pointed that out because first and foremost, I'll give credit to Robbins to be even beyond this. I mean, somebody from Microsoft because anytime that you and I have talked about micro hyperlink documents or hyperlink files um one of the um I I I I I don't want to say the main victims here but you know one of the big players in this is Microsoft and the fact that they have one document stored in one drive and so if you link to a document in an email message that is being stored in one drive or teams as as it comes up here and you know it is funny that he mentions the cloud attachments I remember well it's only been about a for maybe a couple of years, Doug, when we first started talking about this topic, we called them modern attachments, right? To differentiate between traditional attachments. Then I think much thanks to you, frankly, in the industry, Doug, we've kind of landed on this hyperl files as like the best way to maybe describe them. But if you go into Microsoft's documentation like their help files and their eiscocovery and Microsoft purview, they still use that phrase cloud attachments which you know now I've kind of feel like that's a little fallen out of disfavor. So that that was interesting that you know Robin sort of disavowed. It's like hey don't shoot the messenger here. I just work there. Uh I didn't come up with the name. But it's just been interesting to kind of see this trajectory of the history of the way, you know, already just in the fact of the last year and two years that we've seen the different ways that we uh you know um uh apply this term or the different ways that we reference uh what we're talking about today as hyperl files. >> Yeah, absolutely. And uh you know it will be interesting to see if Microsoft uh changes the nomenclature uh at at some point and and decides to you know move away from the cloud attachment term. Um, another thing that I thought that um, David Robbins pointed out that was, you know, uh, really that I hadn't really heard people anybody point out before is, you know, hyperlink files being more secure because, you know, the files out there and you can always cut off off access if you need it as opposed to sending out a traditional attachment once it's out there, it's out there and you can't really do anything about getting it back, per se, un I mean, you could recall an email right after you send it, but other than that, it's out there. Uh so to me I that's one of the things that [clears throat] I think also bodess to seeing even more hyperlink files is the security considerations. Judge Parker, Judge Parker's takes I thought were interesting because she really, you know, she didn't talk specifically about Nichols v New nor what I've expected her to, but she talked about, you know, the fact that, you know, with this whole discussion about versions and contemporaneous version and so forth, she sees it a lot as the versions being the drafts of the same document and the drafts maybe not always necessarily being that relevant. And then one of the things she also talked about is you know the is is the importance of the communication and really kind of the you know discussion between the parties and I think that's one of the things she's really tried to kind of illustrate or um well tried to she illustrated during the discussion and I think she emphasized you know the importance of cooperation communication and an iterative approach to the issue you know not necessarily it's got to be an all or nothing with regards to the uh all hyperlink files, but really negotiating and working, you know, with with um opposing parties to determine which ones are the most important and focus your efforts there. Uh which is definitely what I it seems like more cases are kind of pushing that direction. So, >> good stuff there. I also kind of like this one place. I think this was um uh M McVoy um I'm sorry this this was Paul Mcvoy from Repario Data Data. I liked how he said my two most unfavor words are all and none. [laughter] And I think maybe kind of underscoring a little bit of what you were just saying there when someone comes and says you have to produce all of the hyperlink files or none of the hyperlink files. He goes that's a red flag. Like that's not being productive at all. And I think that also fits in uh along the lines of what Judge Parker was talking about referencing federal rule civil procedure rule one, you know, to secure the just, speedy, and inexpensive determination of the action. In other words, it's just not being productive when you're doing that. And again, I understand being an advocate for your client, but it's not going to be as helpful here when we're talking about something that it's still confusing and a little frustrating today with with hyperlink files. >> Yeah. Yeah. Absolutely. And um you know I think that um uh Leanne Manari had a couple of good points too talking about you know the importance of understanding what your technology can do. Obviously we remember the StubHub case where I don't think they did that well you well before they agreed to produce um files as h you know as a as hyperlink files as attachments. And then she also points out that you know just uh while they may not necessarily be linked to an email or message these files may be in production. So you obviously want to keep that in mind is just you know just because it's not really treated as an attachment per se doesn't mean the file isn't being produced in some form. So that's all part of the discussion as well. And then they did a really good job there with the final thoughts of having some last quick take from each of the four of them. uh um you know, Phil didn't give one specifically because he was moderating, but um those were I think four really good, you know, points there about being reasonable from Judge Parker's perspective, you know, including your technologist um because things that you think are hard are not always that hard and things you think are maybe that hard, which is, you know, a great point. um understanding your technology um Leanne Manari and then you know uh and then I think David Robbins reiterating you know they've been around a long time but taking the time to understand the technology especially as it changes I think is key. So, you know, really good webinar and some really good u you know, uh points from that that uh and obviously, you know, I'm I'm uh should try to make a note that my quotes are approximations uh might be paraphrased because I mean, I wasn't sitting there, you know, writing word for word everything they said, but you know, I think I got the gist of it and uh um you know, I thought it was a very good webinar to discuss the issues and just like um all other hyperlink files webinars as far as I've been, you know, either participating in or attended or what have you. Lots of um uh lot lots of participation from the audience in terms of questions and and what have you. Definitely still a very hot issue. >> Well, I actually I did attend this webinar and I think you did an excellent job of taking some of the some of the quotes down, Doug. And I do like what the final thought here from David Robbins. Just like you said, you got to take the time to understand that the technology is critical. And again, that's coming from somebody that's at Microsoft and knows that they're that they've got clients and customers that are dealing with this. And to me, that's the key discovery point today, right? Keep learning about hyperl files. Keep talking about hyperl files. Don't dismiss them. And if you need a few other resources, as I've mentioned, Doug, you and I have talked about this topic quite often. We've got a great blog post at nextpoint.com that I'll make sure it's in the show notes where uh one of my colleagues has put together I think at least four of our past key discovery videos where we've gone through and talked about this and just you know really hitting upon some of the the points that you've brought up in some of your posts Doug and you know again it would just be helpful if somebody wanted to get a little bit more background on exactly what we're talking about. We'll make sure we have both of those links in there. Thanks again as always, Doug, for your time and we'll talk with you next time. >> All right. Thanks, Brett. Thanks, everybody.