“Cloud Computing” in Discovery by jlhd32


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									                                                                                                     Consultus Electronica

“Cloud Computing” in Discovery
How We Deal with Electronically Stored Information
by Charles B. Molster III and Elizabeth H. Erickson

“CLOUD COMPUTING” is an e-discovery                   because it takes clients out of the busi-             When contracting with a cloud ven-
buzzword. In all likelihood, you and                  ness of hosting infrastructure and shifts        dor, it is critical to ensure that the terms
your clients are already using it, whether            that job to an expert with pooled                of the contract make clear that your
you know it or not. Cloud computing,                  resources and advanced hosting skills.           client owns its data in the cloud; your
sometimes referred to as Software as a                      However, the security of data located      client has the authority to manage its
Service (SaaS) or Platforms as a Service              in the cloud continues to be debated.            data; your client has the ability to access
(PaaS), allows a company to store its                 Skeptics — who generally lack confidence         its data at any time; and your client’s
data and software platforms or services               in the security of the Internet, likely due      data is protected from inappropriate dis-
in a third-party-owned and maintained                 to the prevalence of cyber identity theft        closure. With these issues clearly resolved
“cloud.”                                              — question the reliability of clouds and         in the contract, you should be able to
     By providing access to tools and                 whether confidentiality can truly be             prevent a vendor from hindering your
applications through cloud computing,                 maintained in a virtual world. Those             discovery efforts by refusing to allow the
users can share resources that are inde-              security concerns, however, are quickly          necessary access and processing of ESI in
pendent of the user’s hardware or physi-              being overcome or pushed aside in favor          the cloud.
cal location. There are a number of                   of the obvious cost and ease-of-use bene-             Once you have resolved the “posses-
advantages and disadvantages to cloud                 fits of cloud computing.                         sion, custody, or control” issue, you need
computing, but the implications for e-                                                                 to determine how to satisfy your discov-
discovery and the handling of electroni-              Implications for E-discovery                     ery obligations regarding such data.
cally stored information (ESI) are                    Even at their simplest, clouds expand            Unfortunately, cloud computing tech-
numerous and should be considered and                 physical and virtual locations where             nologies are far ahead of e-discovery
discussed by law firms and their clients.             electronically stored information might          software developers. Many e-discovery
                                                      be found. This expansion may present             vendors offer cloud solutions for hosting
Types of Clouds                                       a significant challenge during discov-           and reviewing data. However, the indus-
There are two main types of clouds.                   ery. Because data is being stored off-site       try has not yet developed tools for con-
The first is created when a client moves              by a third party, cloud computing                ducting e-discovery against the cloud,
its infrastructure off-site to be hosted              raises a number of questions about               including tools to easily perform preser-
and operated by a third-party service                 how e-discovery and data management              vation, search, retrieval, culling, and
provider. The second exists when appli-               are implemented.                                 early case assessment against cloud infra-
cations are accessed through the                            A key consideration is who owns,           structures. But as more clients use clouds
Internet instead of being locally hosted              manages, and accesses the ESI that               in their daily business, thorough, defen-
and run. In this second instance, all                 resides in the cloud and is hosted by a          sible discovery in the cloud will be
data is stored in a third-party cloud.                third party. Rule 34 of the Federal Rules        needed. Clients will demand solutions
Cloud users do not have to download                   of Civil Procedure allows a party to serve       that efficiently and effectively preserve,
applications and software to their com-               a request for the production of docu-            gather, and process data for discovery
puters or mobile devices. Instead, they               ments and ESI that are in the responding         purposes.
access the necessary services and infor-              party’s “possession, custody, or control.”            Ultimately, the buzz around cloud
mation via the Internet.                              In order to determine one’s duties under         computing is expected to continue, as
      Google is a widely used example                 Rule 34, one must first determine who            new platforms arise and clients’ confi-
of Internet-accessed cloud computing                  owns and controls the data in the cloud          dence and usage evolve. Information
service. Google users all over the world              — your client or the third-party service         technology and legal industries will need
use the company’s online productivity                 provider. Not surprisingly, most courts          to respond with solutions that meet
tools and applications, such as e-mail,               are likely to find that data in the cloud is     clients’ operational needs, while simulta-
word processing, and calendars.                       within your client’s control, despite the        neously addressing the increasing
Through Google, all of these tools are                involvement of a third-party provider.1          demands of e-discovery in the cloud.
accessed for free.                                    Clear ownership boundaries should be
      Cloud computing allows users to                 placed in the service contract to govern
access their data and services from virtu-            the relationship between your client and
ally any computer with an Internet con-               the third-party vendor.
nection. This access often reduces costs                                                                                    Tech continued on page 60

www.vsb.org                                                                                  Vol. 59 | June/July 2010 | VIRGINIA LAWYER           59
     Tech continued from page 59

     1      Few courts have specifically com-
     mented on discovery obligations
     within the context of cloud comput-
     ing. However, in situations in which
     possession and control were similarly
     split between a party to litigation and
     a third-party service provider, a num-
     ber of courts have found that suffi-
     cient control existed to impose
     obligations on the litigating party. See,
     e.g., Flagg v. City of Detroit, 252 F.R.D.
     346 (E.D. Mich. 2008) (finding that
     defendant had sufficient control over
     text messages held by third-party ser-
     vice provider); Tomlinson v. El Paso
     Corp., 245 F.R.D. 474 (D. Colo. 2007)
     (where third-party vendor had posses-
     sion, custody and control of the elec-
     tronic data, defendants could not
     delegate their statutory obligations to
     preserve and maintain data and avoid
     discovery); In re NTL Inc. Sec. Litig.,
     244 F.R.D. 179 (S.D.N.Y. 2007) (find-
     ing that defendant had the practical
     ability to obtain any documents it
     needed from a third-party corpora-
     tion); Zynga Game Networ, Inc. v.
     McEachern, No. 09-1557, 2009 WL
     1138668 (N.D. Cal. Apr. 24, 2009)
     (where defendant was sanctioned and
     ordered to cause a computer rental
     vendor to relinquish control of previ-
     ously rented servers).

60          VIRGINIA LAWYER | June/July 2010 | Vol. 59   www.vsb.org

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