ELECTRONIC DISCOVERY IN THE CLOUD

http://ow.ly/6DjlH

Article in the Duke Technology & Law Review by Alberto Araiza.

This comprehensive article discusses eDiscovery issues that pertain to the use of cloud computing. The article states a proposition that the Federal Rules of Civil Procedure need to be amended (again) to reflect the rise in the use of cloud computing for eDiscovery services.

As the article states, "The introduction of Cloud Computing to a variety of industries has presented new complexities in the discovery phase of litigation. Pretrial discovery procedures involve delineating the scope of discoverable electronically stored information (ESI) as potentially leading to relevant evidence. In Cloud Computing, shared data centers housing ESI are central to discovery. Although the Federal Rules of Discovery (Rules) were designed with an inherent flexibility and applicability to technological developments in personal computing, they cannot effectively be adapted to the Cloud Computing context."

The author goes on further to point out, "The Rules are not flexible enough to encompass the technological paradigm shift to Cloud Computing. Specifically, the Rules do not provide guidelines for the production, preservation, and spoliation of ESI in a shared environment. This problem may be mitigated through technological means or by changing the Rules. Further, negotiating the terms of a contractual relationship between a Cloud provider and client may provide sufficient protection for both parties. Clients should consider whether their service contracts include sufficient safeguards against inadvertent discoveries of data, accurate indications of costs, and mechanisms for complying with the Rules."


P.S.  This article, as law review articles tend to, provides some excellent reference material via many interesting sources.