EDD: Issues, Law, and Solutions: Cloud Computing in Ediscovery

Friday, December 10, 2010

Cloud Computing in Ediscovery - an evolution or an optical illusion?

Is it inevitable that Cloud computing is coming to E-Discovery?

Yes I believe it is. And faster than anyone expects.

In layman’s terms, cloud computing enables users to access state of the art technology services without expertise with, nor control over, the technology that supports the service. I like the analogy used by Nicholas Carr in his book The Big Switch , which compares the evolution of cloud computing to the transition from personal power generation to modern utilities.

Rather than store data on an organization's own computer network, the data is stored on servers "in the cloud" and available on demand by the law firm or service bureau. Instead of installing , purchasing and maintaining data/software on a network or desktop computer, the data/application is hosted on computers in the cloud and available on demand ideally on a “ per consumption basis."

Utilizing “the cloud” can result in dramatic cost savings because companies using cloud services need not purchase their own infrastructure or software, need not hire people to maintain it, and need not regularly upgrade. In addition, cloud computing is highly scalable. So rather than maintaining an excess of computing power -companies can maintain variable capacity levels to suit their immediate needs using the cloud. More importantly, utilizing the cloud will allow companies to take advantage of the best and latest technology - since they will not have to disassemble and rebuild their entire IT infrastructure in order to upgrade.

Law firms that practice litigation are experiencing data growth rates which are estimated at 45% annually according to Gartner.

Consider that:

The world sends over 60 billion e-mails daily.
90% of all documents generated today are electronic.
A single hard drive can store the 40 million pages or more

For litigation support services such as Superior Document Services the problem is growing more acute as corporations provide increasingly more and more data as part of the discovery process to their legal council. The cloud solution allows law firms to push litigation support cases into the cloud immediately upon receipt of data, Both the data and the data processing can be accessed in the cloud for immediate and on-going access by both attorneys and service providers Cloud storage eliminates ongoing capital investments in expensive storage hardware to accommodate the unpredictable growth of litigation support data.

Of course their are numerous valid concerns about utilization of a cloud in the litigation arena - who has access?; where is my data?; is my data secure?; data segregation and just the uneasy feeling that your data is out of your physical control.. At first these concerns may seem daunting to a risk averse law firm. In fact that the risks can be minimized I think that the biggest disconnect for me was the issue of Public clouds. For all their benefits of low cost, elasticity and flexibility my perception is that public clouds are not yet able to offer service levels and ironclad security for me to entertain the possibility of recommending that solution to my clients.

A key distinction between public and private clouds, and one that is important from a legal standpoint, is that public clouds likely have multi-tenancy,where a single instance of the software runs on a server, serving multiple client organizations. With private clouds, analysis of risk may be very different. Private cloud helps deliver lower IT costs, improved quality of service and greater business agility while offering better control and more secure access to corporate information. The most important consideration is ithat the security controls in cloud computing are for the most part the same as in any IT environment.

Mark my words - Private Cloud computing is coming....fast and furious

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Sedona Principles 2nd ed.

1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.
14. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.
Copyright © 2007 The Sedona Conference®. All Rights Reserved.
Reprinted courtesy of The Sedona Conference®.
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