Friday, December 4, 2009

If You Thought E-Discovery Was Bad, Hang on For Cloud Computing

All litigators who handle disputes for business entities and any business that has already gone through a major piece of litigation understand how expensive, time consuming, to be honest, down-right awful, is the experience of trying to ascertain where all potentially relevant information resides within a company's many computer systems, networks, and individual PCs.

But the world of technology is slowly moving towards data storage somewhere outside the physical locations of many companies and out into the "cloud" (i.e., onto servers maintained by internet service providers or other large companies). Having to search for data, however difficult within your own company (or that of a client), raises yet further difficulties when you need to coordinate with outside vendors and raises all types of questions about control and access to information that your company (or client) may not have thought about.

The articles on e-discovery are legion and many companies have developed consulting services regarding e-discovery. Many lawfirms, including my own, have developed this expertise as well in conjunction with the cases that we litigate for our clients. But the issues with cloud computing are just developing and virtually no law yet exists on the obligations and duties of a litigant to get documents and e-data from sources outside its company that stores the data that you (or your client) only has access to. That may raise all kind of questions, starting with the pre-existing contractual obligations of the cloud provider or the lack thereof.

I have found an excellent series of articles on cloud computing. Rather, than trying to summarize them, let me direct you to the 4th article on the subject of the intersection of e-discovery and cloud-computing. The article is titled Legal Implications of Cloud Computing -- Part Four (E-Discovery and Digital Evidence) by Tanya Forsheit of Informationlawgroup. Also, if you are a lawyer or have an interest in one judge's views on e-discovery in general, you might also want to read the decision Tanya discusses, Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

The bottom line is that as a company moves to cloud computing and data storage, yet more thinking is required in advance of litigation and once litigation commences or is likely to commence. These are not easy issues nor ones that can be inexpensively dealt with.


  1. I couldn't agree more. As an arbitrator, I am very concerned about how these issues are going to present themselves in complex, bet-the-farm cases.

  2. In some ways, moving data to a "cloud" storage service will actually simplify eDiscovery. Instead of travelling all around the country trying to find disconnected evidence, you will need to go to only one place. Plus, I think the cloud providers will start to build easy-to-use searching, tagging and exporting utilities, making it even easier to find what you are looking for. Cloud-based eDiscovery gets very interesting when you consider cross-boundary data centers. Like, what happens when you use a cloud storage provider in the US, but backs that data up to multiple data centers not in the US, as Amazon does?

  3. I doubt that cloud storage will be easier for a long while but likely will be years from now when the issues get sorted out. Andy raises a good one, by example: who controls the data? It may be some time before users of cloud computing negotiate and draft their contracts (to the extent they are not contracts of adhesion) in a manner that defines the scope of their rights in a manner that the courts will accept - whatever that may be. As for now, the issues will likely keep arising and the courts will be, just as they were and mostly still are with e-discovery, trying to make a complicated fact reality consistent with legal principles that parties can abide by.

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