Last week NY's most prominent state appellate level court formally fully adopted the Zubulake standard for e-discovery. The entire opinion is worth a careful read, as although the First Department noted that it previously "adopted the Zubulake standard when reviewing a motion for spoliation sanctions involving the destruction of electronic evidence" it had not previously addressed the issue of when a party reasonably anticipates litigation and the resulting duties and obligations that flow from this determination. Now it has.
Back by popular demand, this is Part Four in our ongoing series, Legal Implications of Cloud Computing. This installment will focus on digital evidence and e-discovery, and follows up on Part One (the Basics), Part Two (Privacy), and Part Three (Relationships). After all, what better topic than the cloud to tackle on the day after Thanksgiving, recovering from tryptophan and wine? As with many other areas previously discussed in this series, the cloud does not necessarily change the legal analysis, it just highlights the need to think through and anticipate the many areas of legal concern that could/are likely to arise when using the cloud. As a litigator, when I think about the challenges posed by the cloud, the one that seems most intuitive is e-discovery/digital evidence. It is always difficult to fully appreciate and digest the scope and volume of information that may be called for in litigation or in an investigation. The presence of corporate data in the cloud multiplies those considerations. Some, but by no means all, of the digital evidence issues that should be considered in negotiating cloud arrangements and contracts (whether you are putting data in the cloud or designing and marketing a cloud offering), are as follows: 1. preservation/retention/disposal; 2. control/access/collection; 3. metadata; 4. admissibility; and, cutting across all of the foregoing 5. cost. As I will discuss below, like other forms of electronically stored information (ESI), one of the best ways for addressing data in the cloud in the discovery and evidentiary context is to plan ahead and discuss treatment of cloud data (a) in records retention policies well in advance of litigation; and (b) at the Rule 26 conference once litigation has commenced. And, if you read to the end, I will comment on the paucity of case law referencing the cloud (and describe the few references that have appeared in federal and state case law to date).