Technology: e-Discovery in the cloud

The cloud presents special challenges for e-discovery

More and more companies are faced with the challenges of dealing with e-discovery in the cloud, which, in a general sense, is electronically stored information that exists outside of a company’s firewall. In a sense, a company that has a network provided by a third party is in the cloud.

In the early days of e-discovery these arrangements caused some pain because the contractual terms often did not contemplate frequent need for small and large discovery projects. Companies found themselves negotiating for pricing to access their own data in ways that had not been contemplated, with an incumbent vendor that had not planned for the people, process or technology needed to accomplish what the company needed. Many of the newer forms of cloud computing also were not created with e-discovery in mind and they generate the same kinds of problems for companies.

The problem with both processes is that they result in extraction or backup of all of the messages in the cloud account. This is because, apart from some ability to limit date ranges, there is very limited functionality to narrow the scope of the extraction or backup. So getting at the affected employees business-related email requires a filter after collection is performed. One way to manage this problem is for the employee to folder the business email into a specific folder before the extraction or backup is performed. Then the company takes the business folder and immediately destroys the remainder.

Obviously, this solution is not ideal for anyone. The employee must expose personal information and trust that the employer, its counsel and vendors respect the agreed upon parameters. For its part, the company must trust that the employee has identified and foldered the needed email despite the risks associated with self-collection. Finally, the emails become live once in Outlook, meaning that messages can be forwarded and sent out, just like any other email.

Contributing Author

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Thomas Lidbury

Thomas A. Lidbury is a partner in Drinker Biddle & Reath's Commercial Litigation practice and leads the electronic discovery and records management group. He advises clients in...

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Contributing Author

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Michael Boland

Michael J. Boland is managing director of Drinker Discovery Solutions LLC, a subsidiary of Drinker Biddle & Reath, which provides electronic discovery services including processing and advanced...

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