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E-Discovery is in the Clouds

by Marta Alfonso and Antonio Argi on Categories: e-discovery

E-Discovery is in the Clouds

By Marta Alfonso and Antonio L. Argiz,  - Morrison Brown, Argiz & Farra, LLC

Cloud computing1 presents innovative and scalable information technology opportunities for businesses and the professional community2. Cloud computing is offered in numerous forms, including Software as a Service (SaaS), Infrastructure as a Service (IaaS), Platform as a Service (PaaS), and on-demand server and storage capacities. Clouds can be characterized as public or private. Public clouds provide access to all users, while private clouds can be established for use by a client as its Intranet. In addition, hybrid clouds can be created by integrating several clouds. A community cloud can be formed to grant an industry or trade association restricted access to data, resources, or applications.

Cloud computing can raise important issues for litigators to consider in initial litigation planning. Litigators should obtain a working knowledge of a client’s relevant use of cloud computing by reference to existing service provider and shared user agreements. A litigator should also interview a client’s Chief Information Officer and obtain the technology plan for a complete understanding of how the use of a client’s cloud computing affects relevant e-discovery obligations. While a cloud provider can be viewed as an extension of a client’s business, the client’s contractual relationship with a cloud service provider will impact whether relevant discovery can be retrieved and maintained, and at what cost for production. A private cloud located in the United States may have few e-discovery issues, while the use of a public or community cloud located outside the United States has more complex implications. Litigators may be faced with the following considerations:

Data retention: Litigators should begin their understanding of data retention obligations and schedules by reference to a client’s service agreement with its cloud provider. An interview of the cloud provider’s technical representative may also be required. Cloud providers may not be contractually obligated to retain a client’s data for more than a designated time period (which may be less than a particular case would require). Cloud service providers may also not be able to preserve a client’s relevant data beyond a designated time period without disrupting operations for its other users (which may preclude the retention of relevant information). Finally, a Cloud service provider’s operations may not comply with a client’s established data back-up policy.

Data retrieval: Litigators should obtain a detailed understanding of the physical location of the hardware, the software, and the retention of data. If the relevant discovery involves multinational jurisdictions, international laws and procedures related to data protection and secrecy must be considered in planning how to retrieve relevant discovery. If a client uses shared storage and processing capabilities with other cloud users, a litigator must evaluate whether sanitizing information retrieved from shared processing hardware is required. In addition, a cloud provider may also not have the technology available to retrieve data beyond the agreed-upon period.

Cost to provide: If e-discovery data retention and retrieval is not part of the cloud service provider’s agreement, additional costs are likely for such services. To mitigate additional costs, a litigator will have to evaluate and determine whether alternative sources of discovery are available and factor these alternatives into their litigation plans.

Litigators should proactively develop and document an understanding of a client’s use of cloud computing for relevant discovery and isolate data retention or retrieval concerns that could implicate spoliation, multinational data transmission requirements, and significant technology costs. This knowledge arms a litigator with insight to address e-discovery concerns with the court and opposing counsel, and proactively identify alternate and cost-effective sources of relevant discovery, if needed. In short, a litigator should jump into a client’s technology cloud with a parachute!

1 The Sedona Conference® Glossary (Third Edition) defines Cloud computing as: “[A] model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.”

2 Tannenbaum, Rachel, “Attorneys substitute 3 small offices for a big one, go virtual,” Miami Today, November 17, 2011, page 14. Tannenbaum reported that the Delancyhill law firm moved to cloud computing and saved 50% to 60% of its operating costs.

By Marta Alfonso, CPA/CFF, JD
and Antonio L. Argiz, CPA/ABV/CFF, ASA, CVA, CFE
Morrison Brown, Argiz & Farra, LLC
1001 Brickell Bay Drive, 9th Floor
Miami, FL 33131

South Florida Legal Guide 2012 Edition

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