In the eDiscovery context, there are quite a few unusual terms thrown around: “Web 2.0,” “De-Duplicating,” “Non-native data” to name but a few. One concept that has been blogged about for years, but is still relatively confusing is “Cloud Computing.” One of the primary reasons why this concept is confusing is that there is no universally accepted definition. While the definition that I provide below is by no means authoritative, it is a basic explanation that might help clear up a little bit of confusion. I will also explain some important connections between eDiscovery and “Cloud Computing.”
What is “Cloud Computing”?
In the past, companies like Amazon.com maintained large data centers filled with tremendous amounts of computer resources. While much of Amazon’s computer resources would be in use during the busy holiday season, these resources would be underutilized during the rest of the year. During shopping lulls, it was estimated that Amazon would sometimes use less than 10% of its resource capacity. In short, companies like Amazon were operating inefficiently because much of their computer resource capacity would go unused. Recognizing the need to become more efficient, in the early 2000s, companies like Amazon shifted to an internet based computing model where important resources, including software, would be provided on an as needed basis. This internet based computing model is what “Cloud Computing” is at its core: the sharing of resources, information and applications over the internet. One easy way to think about this is through what Nicholas Carr has described as the utility model. Essentially, with “Cloud Computing,” computer resources are shared and provided much like electricity is provided to consumers. To use the analogy to describe what was done before as compared to what is done now: The old model would be like Amazon purchasing more electricity (computer resources) than it needed in the event that it required extra capacity (for example, to meet demand for a huge sale). Now, under the “Cloud Computing” model, Amazon only pays for electricity (computer resources) to meet its ever fluctuating needs.
Easy to Understand Examples of Cloud Computing:
One easy to understand example of “Cloud Computing” includes the increased use of streaming movies and television programs. I used to purchase tons of DVDs, which certainly came in handy when I had guests who wanted to watch movies, but the majority of the time the DVDs just sat on the shelf collecting dust. I haven’t purchased a DVD in a number of years, because today, through on-Demand and Netflix, I can access thousands of movies streamed over the internet directly to my television. The ability to stream movies is a great example of “Cloud Computing” because it involves a shared resource (movies stored on servers and streamed over the internet), which are provided to customers at the push of a button. The benefit in this example is the cost savings I have realized in not having to pay for DVDs anymore. This is the same type of cost savings that companies like Amazon have realized by shifting their consumption of computer resources to rise and fall with their changing demand.
Another great example: Microsoft recently partnered with NASA to enable a personal computer to become a virtual telescope through an internet browser. Part of this project includes a web-based client that allows a user to stream the telescope software, which allows users to explore the universe all from the comfort of home. Where before, under the old model, a user would need to wait a long time to download and then install the Microsoft software, today, through the “Cloud Computing” model the software is shared remotely over the internet and can be accessed by anyone on the planet (provided you have an internet connection and a fast enough computer). I highly recommend that you check out the Microsoft application, particularly the guided interactive tours of Mars.
Connection of "Cloud Computing" to eDiscovery:
So now that you have a basic understanding of “Cloud Computing” as the sharing of computer resources over the internet, you might wonder: what is the connection to eDiscovery? While there are many connections, one of the most important has to do with data storage. In the movement away from the traditional forms of data storage, many companies have begun to store their data through Software as a Service providers (SaaS) on “public” or “private clouds.”
There have been a number of commentators who have expressed some significant concerns about “Cloud Computing” and the storage of data through SaaS providers. The third-party maintenance and storage of data raises issues of information security (protecting the privacy of data) and compliance with litigation holds. It is not difficult to imagine a scenario where Company A stores all of its email with a SaaS provider. While that SaaS provider is under no obligation to abide by the terms of a litigation hold, Company A must fulfill its duty to preserve electronically stored information or that Company may risk sanctions. Although there is no case-law on this point, most likely courts will require parties who contract with SaaS providers to insure that the SaaS providers agree to comply with a company’s document retention policies so that company’s eDiscovery obligations are met.
Another important consideration on the use of “Cloud Computing” is the possible waiver of the attorney-client privilege. This is a concern because where, for example, email is stored with a free e-mail provider (Google, Yahoo, MSN), those email providers often scan users’ emails to target advertising to the individual users. Sam Glover at lawyerist.com provides some basic reasons why waiver in this circumstance might not be a concern—notably, because the scan of an email by a SaaS provider does not mean that the content of the email is actually being disclosed (no person is reading the emails, instead a program searches for key terms). Nevertheless, until a court analyzes this issue, there will be uncertainty about the protection of the attorney-client privilege where data is stored with SaaS providers.
Yet another concern with SaaS is that it may be increasingly difficult to insure that SaaS providers are preserving metadata: where a file was stored over time, who had access over time, and dates of modification. In some cases this information will be critical. Some commentators have also suggested that it may be difficult to certify searches on SaaS providers systems given a SaaS consumer’s lack of expertise on the SaaS provider’s document retention and storage system.
As detailed above by the Microsoft / NASA partnership, “Cloud Computing” has the ability to provide exciting computer resources to people all over the world. Nevertheless, for litigators, “Cloud Computing” is also somewhat unsettling because it creates a lot of unanswered questions about how eDiscovery is going to be conducted going forward. A cautious practitioner would be well advised to continue monitoring “Cloud Computing” in order to be prepared for the current and future battles over the production of electronically stored information.