Grey sky thinking

Cloud computing can provide benefits when it comes to e-disclosure but is still rife with potential pitfalls. Daniel Kavan advises implementing clear processes before the cloud is introduced

As explored in a recent Special Report in these pages, cloud computing is no mere trend or fad. Life in the cloud is here to stay for businesses, individuals and legal practitioners alike.

One result of this is that e-disclosure must now be considered in the context of the cloud. The most common uses of cloud ­computing involve its power of data storage and processing in the forms of Infrastructure as a Service (IaaS) and Software as a Service (SaaS).

Organisations looking to cut the cost of data storage, improve the efficiency of servers and integrate with partners more easily are increasingly turning to cloud ­computing solutions. Companies of all sizes already use cloud environments to house electronically stored information and run essential business functions remotely. This broad-spectrum adoption illustrates the substantial cost and efficiency benefits that cloud technology affords.

The difficulties and challenges that come with converting to the virtual environment, however, are still emerging, leaving many organisations feeling uneasy. Apart from important contractual considerations when entering into agreements for cloud services, probably the biggest legal issue relates to finding evidence held in the cloud. How does e-disclosure in the cloud differ from e-disclosure in on-premises data locations? And how can the cloud be used to ease the growing burden of dealing with large volumes of electronically stored information (ESI)?

With regard to cloud computing ­affecting e-disclosure, organisations must use the cloud for core IT functions rather than deploy a cloud-based SaaS solution to facilitate the processing, review, analysis and production of documents during e-disclosure.

Choice location

Imagine an organisation that uses the cloud for some of its document handling and has a sudden obligation to disclose documents to a regulator or other party in litigation. The first step in the scoping exercise is to identify where potential evidence might be. Preparation for this type of situation is the key. Pre-emptive data mapping is essential so that you know, as far as possible, what information is stored where.

It is also important to consider what might happen when the organisation places a legal hold on its cloud-based ESI. When IT is in-house, this could trigger actions such as taking back-up tapes out of circulation and automatic deletion routines being halted for data accessible to relevant individuals. As far as possible this approach should be reflected in the SaaS environment.

Planning application

When it comes to collecting electronic ­evidence, traditionally the solution has been to either instruct local IT resources to ­implement collection or invite computer forensics consultants on-site to assist. Such an approach may be challenging when the data is stored with a third party that stores others’ confidential data in a potentially hard-to-reach location. It is important that the cloud provider cooperates in extracting the necessary data in a forensically sound manner and at a reasonable and ­proportional cost.

The best way to overcome these ­challenges is to plan from the outset of introducing the cloud and incorporate cloud data and ­services into data ­management plans. Data retention ­policies, security policies, ­business continuity ­policies and discovery response plans must be included. Discovery response plans should address how litigation holds will be implemented and data reserved or ­extracted for use in legal proceedings.

Cloud pleaser

It is clear that the cloud can present ­challenges in identifying, collecting and ­preserving evidence, but cloud technology has also helped to make e-disclosure more efficient. Harnessing the cloud to help with e-disclosure is nothing new. The cloud has been used to manage documents for ­disclosure electronically for more than 10 years, with some of the first online hosted review platforms to help lawyers review documents being released in 2001.

Cloud-based solutions such as this allow lawyers to offload securely the ­infrastructure-hungry process of ­extracting and indexing large volumes of electronic documents for searching and review and store the resulting documents in a system that allows a collaborative review process. Outsourced ­e-disclosure providers allow law firms to benefit from the efficiencies of the ­latest document review technologies, accessible from anywhere in the world, with no upfront capital cost to lawyers or their clients.

Cloud computing is really just a fancy name for what you are likely already doing, whether on a personal, corporate IT or ­evidence management level. The outlook is cloudy, with adoption of SaaS and other uses of the cloud increasing. Accordingly it is important to understand and prepare for the need to harvest information from the cloud and to consider leveraging the power of the cloud to manage the resulting ­evidence.

Daniel Kavan is an electronic evidence consultant for Kroll Ontrack