eDiscovery and the law stumble in the cloud

eDiscovery and the law stumble in the cloud

April 30

A recent court case determined that if a business can access records for day-to-day operations, then those documents need to be included in the eDiscovery process. Working in the cloud, courts may find that not all businesses can lay claim to knowing exactly where their online backup is stored.

According to a recent Computerworld report, the ruling on the case of Gordon Partners v. Blumenthal agreed with current Federal Rules of Civil Practice, finding that a business is liable for maintaining “possession, custody or control” of electronically stored data in case of an investigation. Storing data remotely in the cloud means that businesses may not know specifically where or how a cloud vendor is handling their information, and as opposed to physical data backup solutions, this can pose a significant hurdle to businesses that may not have considered eDiscovery complications before migrating or consolidating data to a new location.

A study by eDiscovery specialist Barry Murphy discovered only about 15 percent of businesses surveyed had thought about the repercussions of an eDiscovery motion when they moved to the cloud, meaning the entire scope of their data and their cloud provider’s information could be remanded in court at any time. With no specific guidelines for searching the cloud, businesses and their vendors may find themselves in a difficult situation where more or less data than they planned is made available in a legal proceeding.

This concern is detailed by the case of the United States v. Briggs, the New York Law Journal recently reported, wherein a large volume of data was made available to the investigation but was displayed out of context or without necessary supporting data, making it seem far more incriminating. The government had presented corporate information and wiretaps in a way that best framed its investigation, but the defendants argued that changing the format would reveal necessary data for their defense. Due to lack of guidelines administering electronically stored information, the judge set a principle requiring searchable productions to aid court findings.

While other recommended principles have been set down by the Joint Electronic Technology Working Group, there are no set laws on how to handle eDiscovery in the cloud. To successfully maintain business continuity and protect itself from unnecessary legal complications, a company should invest in data backup solutions separate from a cloud vendor.