Cloud computing is becoming increasingly popular in the business world as it allows the company to process data more quickly and reduces the amount of storage space needed on local computers. However, cloud computing is also affecting the ability of litigants to adhere to Rule 26(f) as data is increasingly stored on servers belonging to third parties.
The National Institute of Standards and Technology defines cloud computing as “convenient, on-demand network access to a shared pool of computing resources.” These resources can include servers, applications, storage and software which are accessed through the internet. Amazon Cloud, Microsoft Cloud and the newly announced iCloud from Apple are all popular cloud computing systems that are being used more and more by the corporate world. As the use of these systems increases, cloud computing must become one of many factors to consider in the scope of e-discovery.
Locating and Obtaining Data
The nature of cloud computing significantly increases the difficulty of locating and obtaining data, as electronic information can be stored in a variety of locations based on the structure of the cloud provider. Therefore, the places where relevant ESI may reside are expanded, making it difficult at times to identify and locate. The judiciary has proven to be less than understanding when litigants are unable to locate at-issue electronically stored information. For this reason, many corporations and law firms are using e-discovery service providers, such as Advanced Discovery, to assist in the identification and collection of at-issue data.
Judges have ruled that at-issue electronically stored information must be preserved, regardless of who has physical possession of the information. In the eyes of the court, although cloud providers store data, they are not presumed to own or have control of the data. Courts have consistently ruled that electronically stored information must be preserved by those that have presumed control, making cloud computing in e-discovery even more complex.
Third Party Cooperation
Rulings have indicated that judges are unsympathetic to uncooperative third parties, indicating that Rule 26(f) must be followed regardless of where the data is stored. Because cloud providers may have multiple customers using the same server, some have been reluctant to provide e-discovery to one customer out of concern for the privacy requirements of another. In addition, cloud providers may routinely “purge” potentially discoverable ESI, such as data logs and date/time stamps, as part of their routine processes. Establishing data handling protocols that account for such practices is another reason why corporations and law firms should utilize the services of Advanced Discovery’s expert consultants.
The popularity of Cloud computing is self-explanatory in the business world; the increase of its use should be prepared for in advance of the need to produce electronically stored information. The effect that cloud computing has on electronic discovery is evolving daily, it is important for potential litigants to understand that using cloud software without a plan in place can result in problems should litigation occur. Make sure you hire someone who can help you navigate the cloud in the case of needing e-discovery service providers.