Nichols v. Noom Inc.

Nichols v. Noom Inc.

Opinion

DISCOVERY ORDER CONCERNING PRODUCTION OF HYPERLINKED INTERNAL DOCUMENTS

KATHARINE H. PARKER, United States Magistrate Judge

Plaintiffs filed a letter motion on February 19, 2021 seeking to "clarify" the Court's previous orders and rulings regarding Defendants' production of documents linked to Google Drive documents and Gmail communications via hyperlink. (ECF No. 214.) In the alternative, they seek reconsideration of this Court's prior rulings that (1) Noom would be permitted to utilize Google Vault to collect its Google Drive and Gmail documents and (2) to the extent Plaintiffs identified certain internal documents containing hyperlinks to internal Noom documents that appeared to be material to the claims or defenses in this action and could not locate the corresponding hyperlinked document in the production, they should raise the issue with Noom and Noom would be required to provide the document or its Bates number (unless withheld on privilege or work product grounds and logged). In [*3]  this Court's experience, only a fraction of the documents produced in discovery will be material to the litigation and the Court indicated to the parties that the above-described procedure should be sufficient to address Plaintiffs' concerns about identifying key hyperlinked documents.

Plaintiffs contend that, based on Noom's early production of documents, they have learned Noom employees frequently link to internal documents in lieu of attachments to emails or other documents. They argue that hyperlinks are akin to attachments and should be produced as part of a document "family." They argue that without metadata linking the underlying hyperlinked Noom document to the document containing the hyperlink, they will not be able to determine families of documents. They also express concern that some of the hyperlinked documents may not be produced at all. They urge this Court to require Noom to use MetaSpike's Forensic Evidence Collector ("FEC") to recollect Google Drive and Gmail documents so that any hyperlinked documents are also pulled as part of the document "family" or to create a program using Google's application programming interface to extract links from responsive Google Drive [*4]  documents, retrieve those linked documents, and produce them as attachments. Plaintiffs estimate it will take only one to two weeks to write a program to extract the links. They do not state what the time or costs would be for processing, de-duplication, and re-review of documents.

Noom opposes Plaintiffs' motion, arguing that the hyperlinks are not attachments and that it is separately collecting and producing relevant internal documents on Google Drive such that there should be no concern that Plaintiffs will not receive relevant internal documents. Noom has agreed to produce a reasonable number of linked documents at Plaintiffs' request and has been ordered by this Court at a discovery conference to provide such linked documents to the extent Plaintiffs cannot locate them in the production and/or need clarification as to whether a certain document is the corresponding linked document. Noom's discovery expert submitted a declaration stating that the FEC tool is unworkable and that Noom would incur roughly $180,000 in costs to collect the hyperlinked documents and produce them, resulting in further delays. For that reason, it argues that Plaintiffs' request is not proportional to the [*5]  needs of the case.

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