You’re conducting document discovery. You expect that when the opposing party searches their email for relevant documents, that party will produce any responsive emails as well as any responsive attachments to those emails, and that they will produce them in a way that allows you to determine what documents were attached to each email. This practice is well established, and these groups of documents (emails with their attachments) are called document families. The reasons for producing documents this way are obvious: They allow a party to see not only relevant emails and documents, but to know who saw what when. For example, when emails and attachments are grouped, you may learn that the defendant’s CEO knew about a smoking-gun document on a particular day because it was attached to an email with no subject line and the message “see the attached document we talked about this morning.” It doesn’t take a rocket scientist to see how that kind of information can be important in establishing claims and defenses.
Now imagine that the other side’s email and electronic filing systems don’t operate in the same way. Specifically, imagine that internal documents aren’t sent within an organization via email as attachments, but rather as links to the location in the internal electronic files where those documents are stored. Many of you won’t have to imagine: Google’s suite of office products and Microsoft Office 365 both work this way. For organizations using Google Workspace, emails and the internal documents linked in those emails should be treated as document families just as if they were emails with traditional attachments—that is, that they should be produced in a way that enables the receiving party to link them together and determine who saw what when—right?
Wrong, at least according to a recent decision of the S.D.N.Y. In Nichols v. Noom Inc., plaintiffs brought claims that weight loss app Noom’s automatic renewal procedures violated consumer protection laws. The plaintiffs sought document discovery, but ran into a snag because Noom uses Google office products. Noom agreed to produce relevant emails and relevant internal documents, but refused to produce them in a way that allowed the plaintiffs to determine which documents were shared, if at all, via which emails. The magistrate judge agreed with Noom. The plaintiffs appealed to the district court judge and Public Justice, along with the National Association of Consumer Advocates, filed a letter in support of the plaintiffs. But to no avail. In a short decision failing to meaningfully grapple with the host of reasons why linked internal documents should be treated similarly to attachments, the district court affirmed.
If Nichols v. Noom is followed, parties who use office programs that link rather than attach internal documents will have an unwarranted advantage in litigation involving discovery. And their opponents will have an unwarranted disadvantage because they will not able to discern who saw what when—information that we already recognize as critical when internal documents are attached to email. Remember our example of the smoking gun document sent to the CEO with a note to “see attachment?” Without treating the email and the linked internal document as a family, a party seeking discovery wouldn’t receive the cover email at all in discovery—the one-line email, without the link, wouldn’t meet search criteria for relevant email—much less learn that the CEO saw the document on a particular date.
The happenstance of which office software your opponent uses shouldn’t dictate whether you can discover the information you need to prevail in litigation. Let’s hope the decisions in Nichols v. Noom aren’t replicated elsewhere.
Leah M. Nicholls is a Senior Attorney in Public Justice’s Washington, DC headquarters.