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Jan 27, 201407:11 AMLegal Login

with Mindi Giftos

When it comes to e-discovery, there’s no hiding in the cloud

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As more and more businesses look to the cloud to address their IT/IS needs, new challenges in digital “document” management are created, including for e-discovery. E-discovery — that is, identifying and producing electronically stored information (ESI) that may be relevant to issues in a legal dispute — is an inevitable part of running almost any business in the digital age, and may become even more demanding with the rise of cloud computing.

The cloud’s benefits

Cloud computing offers many advantages to business users, such as not needing to upgrade storage capacity. A business realizes such advantages by contracting with one or more cloud service providers (CSPs) to store its data on remote servers (which may be located outside the United States), through private or public networks of servers, or a combination of both.

When served with discovery requests in a lawsuit to which it is a party, or with a subpoena in an action it is not involved in, a responding party has the burden to identify, preserve, and collect electronically stored information located in the cloud. Although a business’s digital information may not reside on its own servers when it outsources to a CSP, courts have held that a business can be compelled to produce information even when actual possession of the information is in the hand of a third party such as its CSP.

The Federal Rules of Civil Procedure define discoverable data as ESI that is “in the responding party’s possession, custody, or control.” Courts have stated that data in the possession of the third party is in the responding party’s possession, custody, or control if the responding party “has the right, authority, or practical ability to obtain the information from the third party.” Also, a party has a duty to preserve data that may be discoverable in a lawsuit as soon as it reasonably anticipates that the lawsuit could occur.

The cloud’s challenges

Applying these rules to the cloud, a business will not be able to minimize or avoid its discovery obligations by hiding behind the fact that its data is stored or maintained remotely in the cloud and it does not have direct control over the data. Where hardware and servers are located remotely, there can be huge difficulties in searching for information that is contained on them and that is responsive to discovery requests; for example, commonly used methods like keyword searches may not work as well or at all.

(Continued)

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About This Blog

Mindi Giftos and her colleagues in Husch Blackwell’s Technology Law group handle a wide variety of issues related to emerging and established technologies, including intellectual property, development and licensing, commercial contracting, and corporate transactions across a broad range of industries.

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