Cloudy Days Ahead for E-Discovery

When it comes to e-discovery, your IT department and forensic experts may be ill-equipped to search, organize, and produce electronic files and documents that are outside the realm of the firm's internal network infrastructure.

The proliferation of vendors that offer web-based computing solutions compounds this problem. Commonly referred to as "Software as a Service" (SaaS), they range from simple email accounts to office suites to whiteboarding and other types of collaborative tools.

This technological alphabet soup in turn facilitates cloud computing and/or utility computing. Basically, it translates into a user's ability to access services from the Internet without having control over the technology infrastructure that supports them. From the IT management perspective, it's like the Wild West of computing. Here's a brief discussion on cloud vs. utility computing.

Lawyers are increasingly mobile due to the shear number of devices, applications and services that connect people, ideas and places. Invariably in-house software may be viewed as inadequate due to various reasons-- system downtime, malfunctioning, subpar performance, and even personal preference. Much to the chagrin of IT staff, users quite often resort to applications that fall outside of the firm's offerings. After all, no firm can acquire and support a large number of applications without a significant drain on IT resources.

Without evolving laws dealing with this type of computing environment, significant barriers will present themselves in the context of e-discovery. First, SaaS providers typically do not have document retention schedules nor are they obliged to initiate litigation holds. Second, information stored on 3rd party systems (databases and server farms) may require subpoenas for retrieval.

In the foreseeable future, e-discovery will no longer involve solely the litigation parties and their respective technical gurus. A multitude of Internet services and ASPs could conceivably be targets of discovery and the cost could escalate with no relief in sight.

Hosted Apps: A Source for E-Discovery

In recent years, the "hosted applications" concept has gained popularity among some small to medium-sized firms due to significant savings from the high costs of software and hardware maintenance.  Such applications should be considered when deposing 30(b)(6) representatives and drafting requests for production of electronic information.

Hosted applications, aka SaaS (Software as a Service), is a software application delivery model where a software vendor develops a web-based software application and hosts and operates the application for use by its customers over the Internet. Typically, customers do not pay for owning the software itself but rather for using it.

From a firm's perspective, the advantages of this type of arrangement are numerous albeit potential privacy and security issues (important/sensitive data being stored on the vendor's servers).

  • Platform neutral - applications and documents can be accessed from any computer.
  • No installation - reduced or eliminate software and hardware maintenance.
  • No downtime - applications and documents can be accessed 24 x 7 from anywhere.

Visiting can provide a sense on the kind of SaaS applications that are available today-- from calendaring tools to spreadsheets to word processors. Furthermore, internet software vendors can be setup in a foreign country and may present some challenging international e-discovery issues. Nevertheless, data repositories reside in hosted applications can prove to be fertile grounds for e-discovery, so include them in your list of applications to learn about from an opposing party.