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I agree that there may be differences between the versions, but I'd counter that changes made to a relevant and responsive document don't (or rarely) render it irrelevant or non-responsive.

The burden should be on the party who altered the evidence to demonstrate why a previously relevant and responsive document has changed its character by subsequent modification sufficiently so as to lose its relevance. The upshot is that failure to track versions shouldn't enable a party to shield or withhold the "modern attachment" from production as part of the family. It was/is part of the family. Instead, producing parties who believe linked attachments have been changed are obliged to produce the changed version with the disclosure that it may not reflect the content or metadata as it existed at the time the link was created. In my view, the fact of collaboration tends not to impact the discoverability of non-privileged material. Looking at it from the perspective of the requesting party, why should a relevant. non-privileged and responsive item be withheld from production because someone altered it in the usual course of business? Where's the fairness in that?

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Craig, as always, I will bow to you when it comes to legal analysis. I think you're right that whether the document is responsive or not probably doesn't change as it continues to be edited, or at least that would happen very infrequently. From the technical side of things, I see that document as sitting at a location, OneDrive for example, and it is either responsive or not. If I'm correctly targeting my locations for search, it'll get collected and produced whether it was shared as a link at some point or not. The scenario I'm trying to avoid is one where I'm asked to collaborate on a document, I have some discussion in chat about edits, maybe make some notes on the document itself, and then later more edits are made based on input from other users, and years down the road in a deposition, I'm being asked about language in a document that was inserted long after the last time I looked at it, because it wasn't obvious to the reviewer that the document that was shared with me was a previous version. After all it appeared in my review platform just like that embedded attachment did.

So yes, a disclosure like the one you describe could help, education would help as well. My dream is review technology that would make it super obvious that this "attachment" was gathered from a link and not embedded in the message. Currently, there are cues, I want to make it idiot proof.

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You wrote: "The reason I think that is because the standard collection process will collect the file that exists at that link on the day we run the collection. That is not the file that was shared in most cases. We shouldn’t treat it the same as an email attachment where we would have a copy of the exact file that was shared."

I agree they are different because one embeds the information in the message and the other links to the stored message; but, I question your assertion that the link file "is not the file that was shared in most cases." Your experience is broad, no doubt, but my experience is that the linked item tends to be the same "in most cases," and that subsequent material amendments (or really any changes at all to the linked item, are the exception. Can you supply any metrics that support the unqualified assertion that "most" linked documents are (materially) different at the time of collection versus at the time they are linked? I push back because I regard you as a top expert, so I hold your assertions to a high standard of accuracy. Thanks.

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Craig, you raise an interesting point. I don't have metrics, just anecdotal evidence that often, when sharing a file in Teams, it is being shared to facilitate collaboration, so the expectation is that the file shared will be edited by the parties involved in the conversation. There are definitely situations where the "final" version is shared and no further edits are made, possibly that happens more often than I am aware of, and in emails that might be the case much more often. Users do tend to use email differently than chat. Perhaps the better explanation of why I don't think we should treat them the same is that it would require work, and some luck, to figure out what changed from the version that was shared to the current version.

i.e. If I shared a file as a link in 2022, and the collected document metadata shows it was last modified in June 2023, the contents of the file that was shared would be an unknown during review. A document at the link that hadn't been edited since it was shared and a document that has been edited since it was shared, in my opinion, shouldn't be treated the same. The technology as it exists, however, would treat them exactly the same, collecting them and identifying them as a "family" item.

It is also possible that I've spent so much time examining Teams and Loop components that I'm assuming there's a lot more document collaboration going on than there is in the real world. I might feel very differently in a few months. ;-)

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