Manual Cloud Computing and Electronic Discovery

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In these circumstances, the application and environment will likely be outside the control of the client and require that a subpoena or other discovery process be served on the provider directly. Because of the cloud environment, a client may not be able to apply or use e-discovery tools that it uses in its own environment. Moreover, a client may not have the ability or administrative rights to search or access all of the data hosted in the cloud.

As such, clients need to account for the potential additional time and expense that this limited access will cause.

E-Discovery Moves to the Cloud

To the extent that the customer is able to negotiate or supplement the cloud service agreement, this issue could be addressed ahead of time. Otherwise, the cloud customer may have no other option than to address the issue on a case-by-case basis; it might therefore have to pay for the additional services of the cloud provider in performing the needed search. Generally speaking, in the United States a party is obligated to undertake reasonable steps to prevent the destruction or modification of data or information in its possession, custody, or control that it knows, or reasonably should know, is relevant to either pending or reasonably anticipated litigation or a government investigation.

This is often referred to as a "litigation hold" on document destruction. Depending on the cloud service and deployment model that a client is using, preservation in the cloud can be very similar to preservation in other IT infrastructures, or it can be significantly more complex. Japan, South Korea, and Singapore have similar data protection initiatives. In the United States, these concerns are addressed broadly by Federal Rule of Civil Procedure 37, though there are myriad jurisdictional rulings that apply to potential litigants. In addition to data preservation obligations resulting from the U.

Data retention laws require covered entities to retain data for a certain period of time.

Special Counsel and RelativityOne

Preservation can require that large volumes of data be retained for extended periods. What happens if the preservation requirements outlast the terms of the SLA? If the client preserves the data in place, who pays for the extended storage and at what cost? Does the client have the storage capacity under its SLA? Can the client effectively download the data in a forensically sound manner so it can preserve it off-line or near-line?

All of these questions should be considered as part of a move to the cloud. A requesting party is only entitled to data that is hosted in the cloud that contains or is reasonably calculated to lead to relevant, probative information for the issue at hand. The party is not entitled to all the data in the cloud or in the application.

Data Trends: Cloud Computing and E-Discovery

The issue of what precisely the limits are is one likely to be resolved in litigation. However, if the client does not have the ability to preserve only the relevant information or data in a granular way, it may be required to over-preserve in order to effect reasonable preservation, depending on the litigation or investigation. The information is then worked through for a determination of what must and must not be turned over as part of the discovery process.

This process, referred to as a document review or privilege review, may be undertaken by paid attorney staff or, in some cases, by emerging expert systems. How to sort the ever-more-voluminous quantities of information that may be produced by discovery is an ongoing area of both legal and technical research. The burden of preserving data in the cloud may be relatively modest if the client has space to hold it in place, if the data is relatively static, and if the people with access are limited and know to preserve the data.

What is ComplexDiscovery?

However, in a cloud environment that programmatically modifies or purges data, or one where the data is shared with people unaware of the need to preserve, preservation can be more difficult. After a client determines that such data is relevant and needs to be preserved, the client may need to work with the provider to determine a reasonable way to preserve such data. In particular, a client may not have the same level of visibility across its cloud data, and it may have more difficulty comparing the data it has collected with the data in the cloud to determine that export was reasonably complete and accurate.

This may limit its ability to collect large volumes of data quickly and in a forensically sound manner i.

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  • E-Discovery Moves to the Cloud.

Clients and cloud providers are well served to consider this issue at the outset of their relationship, and to establish a protocol and a cost for extraordinary access in the case of litigation. Absent these agreements, clients should consider the extra time and cost implicated by collection in the cloud when making representations to requesting parties and courts. Note that FRCP 26 b 2 B excuses a litigant who is able to show that the information requested is not reasonably accessible because of undue burden or cost.

However, even if such showing is made, the court may nonetheless order discovery from such sources if the requesting party is able to show why this information is needed and may not be obtained otherwise. In a related issue, a client's right of access may provide them access to a full range of data, but not provide them the degree of functionality that would best assist them in a given situation. By way of example, a client may have access to three years of retail transactional data, but may only be able to download data two weeks at a time due to functionality constraints.

Moreover, a client may not have full view into all the metadata that exists, but rather into only a more limited degree of metadata. It is prudent to learn what is possible with the tools available to a client before it becomes necessary to use them as a part of active litigation. Bit-by-bit imaging of a cloud data source is generally difficult or impossible. Even in a private cloud, forensics may be extremely difficult, and clients may need to notify opposing counsel or the courts of these limitations. Luckily, this type of forensic analysis is rarely warranted in cloud computing, because the environment often consists of a structured data hierarchy or virtualization that does not provide significant additional relevant information in a bit-by-bit analysis.

A client subject to a discovery request should undertake reasonable steps to validate that its collection from its cloud provider is complete and accurate, especially where ordinary business procedures are unavailable and litigation-specific measures are being used to obtain the information. This process is separate from verifying that the data stored in the cloud is accurate, authenticated, or admissible. Because of differences in how data is stored, and the access rights and privileges available to the owner of the data, there are cases where a cloud customer may not be able to access all the data that it has stored in a cloud.

The cloud customer and cloud provider may have to analyze the request for information and the pertinent data structures for relevance, materiality, proportionality, or accessibility when responding to a discovery request. Although it does happen from time to time; in fact, some courts have been willing to allow no-notice seizures of IT equipment for the purpose of evidence preservation in civil cases, including employment disputes.

  1. Know the Potential Problems.
  2. Key Points to Consider?
  3. Discovery in the Age of Cloud Computing.
  4. In the cloud environment, it is even less favored and may be impossible for the same reasons as a forensic analysis may be impossible. Importantly, a client may not be able to provide direct access because the hardware and facilities are outside its possession, custody, or control, and a requesting party would need to negotiate directly with the provider for such access. Cloud service providers often store data in highly proprietary systems and applications that clients do not control. Generally, ESI is expected to be produced in standard formats such as PDF for electronic documents , unless information lost by conversion such as metadata is relevant to the dispute.

    In these cases, production of data in the cloud-native format may be useless to the requesting party, as they will not be able to understand the information produced. In these circumstances, it may be best for all concerned—requesting party, producing party, and provider—that the relevant information be exported using standard reporting or exporting protocols that exist within the cloud environment, with due care given to preserving any relevant information.

    Authentication in this context refers to forensic authentication of data that is admitted into evidence. This should not be confused with user authentication, which is a component of Identity Management. Storing data in the cloud does not affect the authentication of data to determine if it should be admitted into evidence. The question is whether the document is what it purports to be. Absent other evidence, such as tampering or hacking, documents should not be considered more or less admissible or credible merely because they were created or stored in the cloud.

    It is in the best interests of both providers and clients to consider the complications caused by discovery at the beginning of their relationship and to account for it in their SLAs. In any event, clients and providers should consider including an agreement to reasonably cooperate with each other in the event of discovery requests against either. The cloud service provider is likely to receive, from a third party, a request to provide information; this may be in the form of a subpoena, a warrant, or a court order in which access to the client data is demanded.

    The client may want to have the ability to fight the request for access in order to protect the confidentiality or secrecy of the data sought. To this end, the cloud services agreement should require the cloud service provider to notify the company that a subpoena was received and give the company time to fight the request for access.

    The cloud service provider might be tempted to reply to the request by opening its facilities and providing the requester with whatever information is identified in the access request. Before doing so, the cloud service provider should ensure, in consultation with counsel, that the request is in good order and uses the appropriate legal method. The cloud service provider should carefully analyze the request before disclosing information in its custody, and consider whether it can meet its obligations to its clients through releasing information.

    In some cases, a provider may be better able to serve the needs of its clients by fighting an overbroad or otherwise problematic demand for information. For more reading on discovery and electronically stored information, there are a wide variety of sources. One that may be of interest is the Sedona Conference , a group that has for several years made influential recommendations around the handling of ESI which have in turn shaped this emerging area of law. Note, however, that their recommendations do not themselves carry the force of law. Skip to content.

    Permalink Dismiss Join GitHub today GitHub is home to over 40 million developers working together to host and review code, manage projects, and build software together. Sign up. Branch: master Find file Copy path. Find file Copy path. Cannot retrieve contributors at this time. Raw Blame History. Domain 3: Legal Issues, Contracts and Electronic Discovery Introduction This domain highlights some of the legal aspects raised by cloud computing. Specific areas covered include: Legal issues. Cloud service agreements contracts.

    Third-party access to electronic documents stored in the cloud. Issue Description U. Federal Laws The United States is part of a small number of countries that do not have a national data protection law that applies to all types of personal data uniformly. Instead, it relies on a patchwork of federal, state, and sometimes local laws.