University of Cincinnati Law Review


This Article sheds light on a unique but centrally important “twenty-first century” issue involving electronic discovery in federal civil litigation that is just beginning to percolate in federal district courts. Historically, courts have held that a document attached to or enclosed with another document must be produced together when produced in response to a discovery request, as that is how the document was “kept in the usual course of business” and how it is “ordinarily maintained or in a reasonably usable form,” as the Federal Rules of Civil Procedure have required for decades. Today, parties are pushing back on whether they must comply with well-settled civil discovery rules with respect to documents or emails that provide “hyperlinks” to other documents, rather than include the other documents as traditional attachments or enclosures. We conclude that traditional attachments and hyperlinked cloud-based documents should be treated equally under the civil discovery rules, and courts should acknowledge that today’s use of cloud-based document storage systems is not a license to ignore ordinary civil discovery principles and prejudice an opposing party.