Discovery Data in Cloud
Every corporate legal department is looking into implementing new tools and methodologies, to curtail costs involved in E-discovery. One strategic approach to save cost would be to store the relevant corporate data with a third party cloud provider.
In a cloud computing scenario, Company X's data would be stored by a third party cloud provider and if there is a discovery request, the data can always be extracted. However, there are challenges when hosting data on the cloud:
1. The role of the third party cloud provider and whether they need to comply with the obligations under litigation hold.
2. Applicability of privacy laws of different jurisdictions, due to the virtual nature of the cloud.
3. Issues relating to preservation of metadata, the admissibility of ESI on cloud as evidence etc.
Some of these legal concerns could be addressed by expressly negotiating specific clauses in the contract for services with the cloud provider, which could describe in detail the obligations of the provider with respect to preservation and production of the data hosted on the cloud. However, the companies need to formulate policies for data on cloud in advance, as any failure in production and preservation of ESI could lead to sanctions from court. As cloud computing becomes more prevalent, it would be interesting to see how e-discovery and cloud computing can go hand in hand.
