E-discovery lost in brave new world
The term “cloud computing” may sound space age, but it’s presenting some unique challenges for attorneys and their clients when it comes to the discovery process.
Although cloud computing covers a range of services from IT to software, its common thread is that all those services are provided by third parties that require customers to trust them with all manner of data.
“On one hand, it’s very efficient for users because the company essentially rents space on a host system,” said James Donnelly, an attorney at Worcester firm Mirick O’Connell and a member of the Massachusetts Bar Association’s technology task force.
On the other hand, he said, the company “doesn’t own the host system, and it could be located anywhere in the world.”
Companies store data off-site in hard copy files all the time. Cloud computing is basically the same practice, but different in that a company’s proprietary information is on some (probably shared) server that is not under the company’s control and could be anywhere in the world.
“If a company is contracting with a (cloud) service company in Shrewsbury, it’s a simple matter,” Donnelly said. “But the mainstream is globalized” and companies tend to store their data where they can get the best rates, and often that’s in China or India.
As it does in many other aspects of business, failing to prepare for the worst can and will hurt a company that doesn’t carefully consider exactly how it wants to use a cloud system.
The discovery process is as old as the law itself.
When a company gets sued, it must provide any information that may be related to the case at hand. The e-discovery process is the same, but instead of digging through filing cabinets, the lawyers are scouring the company’s computer files.
But lawyers say there are gaps between the rules presumed to govern the possession, custody and control of information and a company’s practical ability to control the cloud systems with which they contract.
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Source: wbjournal.com
By: Matthew L. Brown
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