Cirrus, Stratus, Cumulus - What's in Your Cloud?

It's official. The Big Blue (a/k/a IBM) joined other technology behemoths such as EMC, Cisco Systems, and Sun Microsystems by creating a Cloud Computing Division to handle the increasingly complex digital information environment, as reported by eWeek.

Not only is this a significant business development for technology companies that span the globe, but it is also a recognition of the importance of a single point of contact in terms of managing data centers to supply infrastructure for cloud-type services.

Although cloud computing is as pervasive and complex as the classification of clouds in atmospheric terms, it can be summed up as computing from anywhere at any time, as IBM articulated in its overview of cloud computing. Despite this massive web of interconnectivity, it can also be cohesive, if it is well-managed.

But what does cloud computing have to do with e-discovery? When information is transported across the Internet, it is done in the form of bits and bytes wrapped in data packets, which contain lots of information about the information that is being transmitted. Each data packet has a header and a "payload." While the header keeps overhead information about the packet, the service and other transmission-related things, the payload is the data itself.

A packet header includes the source IP address, the destination IP address, and the type of service. If you compare data packet delivery to the US Postal Service, a data packet would be similar to an envelope with the sent and return addresses (header) along with the actual sealed document (payload) delivered via First Class or Standard (type of service). So, in essence, a data packet contains information not dissimilar to metadata in any electronic documents.

On the issue of discoverability, we all know that metadata can be subject to discovery.  Courts have held that when a party is ordered to produce electronic documents, as they are maintained in the ordinary course of business, the producing party must produce those electronic documents with the metadata intact.  See Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005).  On the flip side, the Federal Rules do allow a party being asked to produce metadata to move for a protective order if the requested metadata is "not reasonably accessible" and will result in "undue burden and cost."  See F.R.C.P. Rule 26(c) and Rule 26(b)(2)(B)

The question remains, however, will data packets be handled in the same way as metadata?

Now that the major tech players have separate divisions to handle cloud computing, it presents potential advantages in retrieving data that proved to be difficult to track in the past, particularly for law firms and companies that have a multinational presence. This may be good news for the e-discovery universe since data and packets can now (at least in theory) be traced or retrieved in a more controlled manner. Unlike language issues in e-discovery, the world of data packets still conveys itself in expression of zeros and ones.  However, it might be bad news for companies that are trying to reign in their e-discovery costs and obligations.

Regardless of technological advances, it remains to be seen whether courts will require technology companies to retain "records" of transient information such as the astronomical number of data packets that traverse through the Internet by the millisecond.

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