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Cloud computing is based on the increase in Internet related services, use and delivery models, usually involving the Internet to provide dynamic and easy scalable and often virtualized resources. Cloud network, a metaphor of the Internet. In the figure is often cloud said telecommunications network, and later used to represent the Internet and the underlying infrastructure abstraction. Narrow cloud computing refers to the delivery of IT infrastructure and usage patterns, to obtain the necessary resources through the network to demand, and scalable way; generalized cloud computing refers to the delivery of services and usage patterns through the network on-demand, easy to expand The way to get the required services. This service can be the IT and software, Internet-related, but other services. It means that computing power as a commodity through the Internet circulation.
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 Endnote: 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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