A federal judge in Newark put it bluntly last spring: “A hyperlink is not an attachment.” The line, tucked into a scheduling order in the insulin-pricing multi-district litigation, has since shown up in meet-and-confer rooms from San Jose to London. Below is a field guide to the three decisions that changed the conversation — and the practical steps counsel can take before the next case-management conference.
- In re Uber Passenger Litigation (N.D. Cal., April 2024)
Issue: Plaintiffs demanded every file linked in Google Drive comments, even if the link pointed to a living document that changed hourly.
Holding: Magistrate Judge Cousins refused to order rolling production of “perpetually mutating” files.
Take-away: Define “document” and “attachment” in the ESI protocol. If rolling capture is technically possible (Google Vault now exports Drive version history), spell out who pays for the storage and who validates hash integrity. - In re Insulin Pricing (D.N.J., March 2024)
Issue: The plaintiffs’ protocol equated hyperlinks with traditional attachments; the defendant objected.
Ruling: Judge Singh adopted the defendant’s narrower definition, citing the absence of a “commercially available tool” that could automatically collect linked files alongside parent e-mails.
Practical tip: Bring a technologist to the Rule 26(f) meeting. A five-minute demo of free utilities such as URL-Expander or Gyrotron can save five weeks of later motion practice. - In re StubHub Refund Litig. (N.D. Cal., April 2023) — still the cautionary tale
The court enforced the parties’ own ESI protocol verbatim. When StubHub could not produce linked spreadsheets in the agreed format, it faced cost-shifting and a threatened sanctions motion.
Lesson: An ESI protocol is a contract. Promising “all linked documents” without verifying engineering capacity is a fast route to expense and embarrassment.
Three Steps to Bullet-Proof Language
A. Map the Terrain Early
Run a 24-hour sample collection on the client’s primary collaboration suite. Export both the message metadata and the resolved URL list. The delta often surprises business stakeholders.
B. Write Tight Definitions
“Attachment” means only files physically encoded within the message container. “Linked Document” means any URL referenced in body text. Production of Linked Documents will occur only if the URL is resolvable at the time of collection and the target is within the client’s administrative control.
C. Allocate Cost Up Front
Include a sliding scale: first 500 GB of linked content at producing party’s expense; anything above that split 50/50 or at court-determined rates. Judges love pre-agreed numbers.
Chat Apps Are Next in Line
Slack Connect channels and Google Chat threads already generate hyperlink-heavy exports. Expect the same fight to migrate there by 2026. The same playbook — sample, define, cost-allocate — applies.
Bottom Line
Hyperlinks are not going away, and neither is the duty to preserve what they point to. The cases above give counsel a road map: negotiate early, define narrowly, and always verify the engineering before you sign the protocol. Do that, and the only thing you’ll be linking to is a smooth production.
