Worth Reading – Carvana and the New Hyperlink Fight: “Contemporaneous” Isn’t Automatic—It’s Earned

This wasn’t a legal decision about M365, but the implications are significant for anyone doing eDiscovery with M365, especially around the ever-present topic of hyperlinked files.

Here’s where teams get tripped up: courts aren’t treating point-in-time as automatic just because you say “we need it.” They’re treating it like any other discovery relief: you need a proportionality story and you need to show why the non-contemporaneous version won’t do.

https://minerva26.com/carvana-and-the-new-hyperlink-fight-contemporaneous-isnt-automatic-its-earned/

As someone responding to an eDiscovery request, the flip side of that statement is, of course, true. Kelly goes into some detail, but for my M365 folks: if you’re going to argue that the version of the document when shared is too difficult to collect, you will need to show your work. That will need to include a whole lot more than saying you don’t know how to do it, or that it’s difficult.

I’ve written about this in the newsletter before. If someone has previously set up a tenant-wide retention policy for shared files, and you’re an E5-licensed shop, it’s not that difficult to do. I’m guessing most of us don’t have that in place right now, so it will not be easy. To satisfy the court, you may need to demonstrate the steps that would be required to locate the version of the shared file closest to the date it was shared, assuming that version still exists.

If that sounds complicated, it is. It’s not impossible, however. Whether it is too burdensome or appropriate to the case will be decided by the court. I have a feeling this decision will impact what the judge expects in terms of details, though. I’d probably want to make sure I was on top of what that would require so that I could provide those details.

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