Cloud Computing and E-Discovery

recent post by Kelly Eubank, Electronic Records Branch Head, introduced the topic of Records and the Cloud and referred you to our agency’s guidance document on  Cloud Computing at http://www.records.ncdcr.gov/guides/cloud_computing_final_20120801.pdf. Please refer to that guidance for an understanding of cloud computing and the general benefits and risks of storing records in the cloud. From the perspective of litigation and the requirement to produce records and data that may be stored in the cloud, I refer you to a recent article in the Metropolitan Counsel magazine. This article highlights some of the questions to address and concerns to raise with a service provider contracted by a state agency to store information, data, and records that may be the subject of an e-discovery* request. Such concerns involve:  i) data segregation—is the service provider ensuring your data is effectively insulated from access by others, ii) recoverability of the records—what kinds of backup and disaster recovery plans are in place to ensure prompt recovery of the data, iii)  the security of the records and data in the cloud and what steps have been taken by the service provider to ensure confidentiality of the data, iv) legal and regulatory concerns  such as jurisdictional issue of where the cloud is ‘located’ and who ‘owns’ it , and v) the portability or ease of transferring data out of the cloud at any given time especially if urgent access is needed for litigation.  I highly recommend this article for its valuable delineation of the concerns litigation counsel should be aware of when a state agency is contracting to store data and records in a cloud.. The article can be accessed at

http://www.metrocorpcounsel.com/pdf/2012/September/21.pdf

*e-discovery is part of the pre-trial discovery process where parties to a lawsuit seek relevant and nonprivileged electrnic documents from each other and from third parties. The rules governing e-discovery are now codified both under North Carolina Rules for Civil Procedure and the Federal Rules of Civil Procedure.

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