The Promise of the Cloud Meets the Obligations of E-Discovery

http://ow.ly/6VgK6

An article by Brendan M. Schulman and Samantha V. Ettari published by the New York Law Journal, and appearing on law.com on the LTN webpage.

This article discusses eDiscovery obligations and the impact that cloud computing is having upon the requirements to preserve and produce electronically stored information during litigation.

The authors state, "The cost savings and efficiency gains offered by cloud computing make it an irresistible lure to companies looking for cheap data storage and technical support.

However, cloud computing also poses a serious threat to an organization's ability to prepare for and respond to document preservation and discovery obligations, and erodes protections against discovery of the data by government authorities and third parties."

The article points out certain areas of concern regarding eDiscovery obligations for data that resides in the cloud.  The authors point out, "Placing corporate ESI into the cloud can complicate efforts to institute a litigation hold upon the reasonable anticipation of litigation."

In addition, the article states, "Alternative methods of preservation, such as the making of a "forensic image," may be rendered infeasible because the relevant data exists in fragments across various locations around the world. It also may be difficult to locate a CSP representative who will assist counsel in understanding the cloud system and implementing the necessary preservation steps. Additionally, cloud providers that contractually cap a customer's storage limit or that delete data after a certain time period could unintentionally cause spoliation of evidence."

The article also provides some discussion regarding the timeliness of an eDiscovery response, and how it can be negatively impacted by cloud computing.  Furthermore, the article also provides a warning that government agencies might have easier access to data that resides in the cloud.  Moreover, certain states ethical obligations for law firms may not permit certain use of cloud computing services.

P.S.  The article provides detailed narrative discussion around many points of concern for cloud computing, and also provides some advice, such as the need to fully evaluate any possible cloud service provider whose services you are considering.