As e-discovery practitioners cautiously resume in-person conferences and social gatherings, one topic is dominating conversations: the discovery challenges posed by “modern attachments” within the Microsoft 365 (M365) environment. A dearth of jurisprudence and little practical guidance is available on this topic; yet the technology continues to rapidly evolve. We prepared this series of articles to provide guidance to discovery practitioners, in-house counsel, and service providers.

One of the foremost issues raised by this evolving technology is whether litigants can, should, or perhaps even must treat “modern attachments” like traditional email attachments. Historically, email attachments have been considered part of an email “family” in discovery because they are actually part of the .msg email file. With “modern attachments,” however, the “attached” files are not part of the underlying message file; no “family” exists in the traditional sense. Litigants and their counsel are weighing any benefits against the risks and burdens associated with treating these documents like traditional email attachments for discovery purposes, where no such “family” relationship exists in the files as they are maintained in the ordinary course of business.