We all use the cloud; it is also known as the Internet. However, many of us would rather avoid the preservation and discovery headaches caused by electronically stored information (ESI) in the cloud. E-discovery is hard enough on the ground. A recent opinion from a federal district court in Ohio, Brown, et al. v. Tellermate Holdings Ltd., et al, illustrates how these cloud-based e-discovery headaches can arise, and how they can be avoided.
Like so many hallowed e-discovery opinions (e.g., Zubulake), the Brown opinion on cloud e-discovery arose in the context of an employment discrimination claim, in this case alleged age discrimination. Another feature of this case that has been a recurring theme in e-discovery is the tension between counsel’s representations about discovery and the client’s statements to counsel leading to those representations before the court. The Brown opinion casts an unequivocal vote in favor of transparency in e-discovery.