Under a Cloud: Discovery in the Online Storage Age

For most Internet users, the advent of “the cloud” has been a blessing, allowing massive amounts of data to be stored remotely and accessed online. Many businesses and organizations have sought to utilize cloud-based storage solutions in order to take advantage of the technology’s ability to make organizing and accessing data more efficient. Because the cloud has grown so rapidly since its introduction, however, legal professionals have struggled to understand the implications of online storage for the justice system, particularly with regards to the process of discovery.

The civil procedure guidelines concerning discovery have had to undergo numerous changes as people and businesses increasingly store information in electronic formats. Electronic discovery, or e-discovery, was already a complicated process when data was stored locally, requiring the investigation of metadata and the processing of diverse file formats and storage paradigms. The cloud complicates matters by placing the data on servers outside the direct control of an individual or entity, causing complicated legal issues and exacerbating existing issues with data retention and organization.

While the majority of those surveyed in a Forbes.com poll were using cloud storage for at least some of their data, only 16 percent had an e-discovery plan in effect, and further research indicates that few organizations have successfully migrated all of their data onto the cloud. For attorneys representing these organizations, the storage medium presents issues; while attorney-client privilege is maintained assuming reasonable data protection processes, the law makes the security of the data uncertain, with loophole available for litigants to discover data through subpoenas served directly to the server’s operator. Given these risks, attorneys have found it necessary to assess the ability of cloud providers to secure data while directing clients to keep sensitive information in offline storage. Meanwhile, business owners and other entities attempting to store data in the cloud should strive to maintain an organizational structure and risk prevention mechanism to ensure that the expense of an e-discovery process will not cost more than migrating data to the cloud in the first place.

Tim Broas


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