Allison Stanton Director of E-Discovery U.S. Department of Justice, Civil Division

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1 Allison Stanton Director of E-Discovery U.S. Department of Justice, Civil Division Jason R. Baron Director of Litigation National Archives and Records Administration 1

2 Overview Cloud Computing Defined E-Discovery Challenges in the Cloud Advantages of E-Discovery in the Cloud Minimizing Litigation Risk and Cost Practical Suggestions The White Paper 2

3 Agencies are moving to the Cloud The White House s 25 Point Plan to Reform Federal IT: Cloud First Policy Cloud First requires agencies to evaluate safe, secure cloud computing options before making any new investments. This means Agencies should be evaluating their technology sourcing plans to include consideration and application of cloud computing solutions as part of the budget process. As a part of this Policy, Agencies Are Being Mandated to Identify and Move Three Projects to the Cloud Within 18 Months At least 1 project must move to the cloud by December 9, 2011; and 2 additional projects by June 9,

4 Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.... NIST Special Publication (September 2011) 4

5 Five basic characteristics of cloud computing Shared resources Scalability Elasticity Pay as you go Self-provisioning of resources Tim Mather, Subra Kumaraswamy, & ShahedLatif, Cloud Security and Privacy: An Enterprise Perspective on Risks and Compliance (2009). 5

6 What is cloud computing? Shared resources multiple users utilize the same resources at the network, host, and application level 6

7 What is cloud computing? Scalability Ability to scale massive numbers of systems, bandwidth, and storage space Elasticity Users can rapidly increase and decrease resources as needed For example Normal business practice Back to normal business practice End of Quarter preparation 7

8 What is cloud computing? Pay as you go Only pay for resources used for the time needed Self-provisioning of resources Users decide what additional systems, software, and/or network resources are needed 8

9 What is cloud computing? Three Main Service Types Software as a Service (SaaS): Software deployment model whereby a provider licenses an application to customers for use as a service on demand Platform as a service (PaaS): Optimized IT and developer tools offered through Platform as a Service (PaaS) for Database and Testing Environments Infrastructure as a Service (IaaS): On-demand, highly scalable Computing, Storage and Hosting Services SaaS Examples: Gov-Apps, Internet Services Blogging/Surveys/Twitter, Social Networking Information/Knowledge Sharing (Wiki) Communication ( ), Collaboration (e-meeting) Productivity Tools (office) Enterprise Resource Planning (ERP) PaaS Examples: Application Development, Data, Workflow, etc. Security Services (Single Sign-On, Authentication, etc.) Database Management Directory Services IaaS Examples: Mainframes, Servers, Storage IT Facilities/Hosting Services 9

10 What is cloud computing? Deployment COMMUNITY CLOUD PRIVATE CLOUD Operated solely for an organization. Shared by several organizations and supports a specific community that has shared concerns PUBLIC CLOUD Made available to the general public or a large industry group and is owned by an organization selling cloud services. HYBRID CLOUD Composition of two or more clouds (private, community, or public) that remain unique entities but are bound together by standardized or proprietary technology that enables data and application portability 10

11 Cloud and E-Discovery 11

12 Cloud E-Discovery Challenges Data volume in the cloud may be overwhelming 1TB of data can cost <$100 to store but >$1million in litigation costs Cloud type impacts strategy Comingling of data (private vs. public cloud) Actual data location complicates E-Discovery efforts Collection from multiple sources Outsourcing by the cloud provider Transfer of data issues (i.e. cross-borders) 12

13 Cloud E-Discovery Challenges Further challenges Implementing litigation holds Incurring the cost of identifying relevant data Determining the collection method for relevant data Accessing the data Locating the original custodian of the data Production of data 13

14 Advantages of E-Discovery in the Cloud Centralized litigation hold capabilities Stream-line search and production Technology upgrades and access Efficiency of process Decreased response time 14

15 Minimizing Litigation Risks & Costs Proactive (pre-litigation) steps Evaluate Type of cloud needed (e.g. private vs. public) Type of data to be stored or service needed Security and Privacy considerations Cloud provider contract language Use the White Paper: Cloud Computing and the Federal Government: Effectively Acquiring IT as a Service Include mechanism to ensure compliance (e.g. audit rights, certifications) Address subcontracting of cloud services For example, who providing E-Discovery tools and support 15

16 Minimizing Litigation Risks & Costs Proactive (pre-litigation) steps Document Retention Policy Data volume control Whose policy rules True data destruction Jurisdictional concerns Cross-borders issues NARA considerations 16

17 Minimizing Litigation Risks & Costs Legal and IT dialogue on cloud service selection is crucial. Legal will have to defend use IT will have to implement and support Understand the end-to-end costs of storage, access, and litigation 17

18 Minimizing Litigation Risks & Costs Reactive (once litigation exists) steps Identify relevant data in the cloud Act quickly to preserve data Work with IT & specialists to understand burdens 18

19 Minimizing Litigation Risks & Costs Reactive (once litigation exists) steps Negotiate and limit cloud data discovery early in litigation Educate court, opposing party, litigators, etc. about cloud and related burdens Ensure data security when collecting from cloud Understand how the cloud services are managed and executed Who are the key-holders? Ask for help from IT and Legal 19

20 Cloud E-Discovery IT Issues How will I manage content in the cloud? Cloud vendors offer two options Use cloud vendors product Send a copy to an archive 20

21 Cloud E-Discovery IT Issues Manage content Business Functions E-Discovery FOIA Electronic Records Management Privacy Etc. IT Functions Preserve Dispose Find Produce 21

22 Cloud E-Discovery IT Issues Challenges with archival Data is dynamic, therefore, metadata is dynamic Encrypted data Data transmission and synchronization Management of legacy data and equipment 22

23 Cloud E-Discovery IT Issues Challenges with archival Why first Many agencies have targeted as primary cloud implementation is most challenging content type Most E-Discovery cases involve 23

24 Cloud Procurement White Paper Overview Top 10 areas Federal agencies need to address when procuring cloud Gives description of issues along with ways to address issues within contracts Provides tactical guidance through a questionnaire checklist 24

25 White Paper Two-Tier Approach to Developing Guidance. 1.Lessons Learned from Existing Contracts Many Federal Agencies Already Have Existing Cloud Contracts. OMB did an informal data call over the last three months to collect cloud contracts from about 15 different projects across the US Government. Interview Existing Cloud Projects to ask about: Requirements development; How the contract addressed issues around security, privacy, e-discovery, FOIA, etc.; and What lessons have been learned from these contracts. 25

26 White Paper Two-Tier Approach to Developing Guidance. 2.Guidance Developed by Federal Cloud Compliance Committee (FC3) Informal interagency group comprised of Federal Attorneys, procurements officials, and cloud SMEs. Group formed with a goal of creating tactical guidance that would proactively assist agencies when contracting for cloud computing services. Created four working groups: Security Privacy E-Discovery Records Management /FOIA 26

27 White Paper Cloud Computing and the Federal Government: Effectively Acquiring IT as a Service Focus of the paper is to guide agencies in developing requirements. Paper is the next step in providing Federal agencies more specific guidance in effectively implementing the Cloud First policy by focusing on ways to more effectively procure cloud services within existing regulations and laws. Federal government s position as the largest purchaser in this new market, Federal agencies have a unique opportunity to shape the way that cloud computing services are purchased and consumed. 27

28 Top 10 Focus Areas 1) Selecting a Cloud Service 2) CSP and End-User Agreements 3) Service Level Agreements (SLAs) 4) CSP, Agency, and Integrator Roles and Responsibilities 5) Standards 6) Security 7) Privacy 8) E-Discovery 9) Freedom of Information Act (FOIA) 10) E-Records 28

29 Privacy and E-Discovery SEVEN Privacy Ensure compliance with the Privacy Act of 1974 and PII requirements Privacy Impact Assessments Adequate privacy training Clearly defined data location requirements How to respond to a breach where privacy data was compromised EIGHT E-Discovery Provide information management in the cloud Ability to locate relevant documents Ability to preserve data in a cloud environment Moving documents through the e-discovery process Cost avoidance by inclusion of tools with CSP solution 29

30 FOIA and Federal Recordkeeping NINE FOIA Access Ability to conduct a reasonable search to meet Freedom of Information Act (FOIA) obligations Ensure the processing of information is pursuant to FOIA requirements Allow for the tracking and reporting of information pursuant to FOIA TEN Federal Recordkeeping Agencies should have proactive records planning before using a cloud service Ensure the ability to have timely and actual destruction of records in accordance with mandated records schedules How to deal with permanent records Process for transitioning to a new CSP 30

31 Appendix A: Questionnaire Overview Translates the paper to tactical questions to ask when reviewing or creating a cloud contract Maps to the ten areas of focus within the paper Tactical approach for Agencies to use 31

32 White Paper: Key Takeaway All necessary stakeholders should be included when creating cloud computing contracts. OCIO OGC Privacy Records E-Discovery FOIA Acquisition staff This will enable Federal agencies to more effectively procure and manage IT as a service 32

33 Cloud Resources CIO Council Federal Cloud Computing Initiative FedRAMP NIST NARA 33

34 34

35 Searching The Clouds For ESI (Electronically Stored Information) and Records 35

36 Storing information in the cloud will require a technical mechanism to achieve compliance with records management laws, policies and regulations promulgated by both the National Archives and Records Administration (NARA) and the General Services Administration (GSA). The cloud solution has to support relevant record safeguards and retrieval functions, even in the context of a provider termination. (page 14) See 36

37 Presidential Memorandum From President Obama s Memorandum on Managing Government Records, dated 11/28/11: Decades of technological advances have transformed agency operations, creating challenges and opportunities for agency records management. Greater reliance on electronic communication and systems has radically increased the volume and diversity of information that agencies must manage. With proper planning, technology can make these records less burdensome to manage and easier to use and share. But if records management policies and practices are not updated for a digital age, the surge in information could overwhelm agency systems, leading to higher costs and lost records. 37

38 Archivist/OMB Directive M-12-18, Managing Government Records Directive, dated 8/24/12: 1.1 By 2019, Federal agencies will manage all permanent records in an electronic format. 1.2 By 2016, Federal agencies will manage both permanent and temporary records in an accessible electronic format. 38

39 Archivist/OMB Directive M-12-18, Managing Government Records Directive, dated 8/24/12: II.A.4 Embed records management requirements into cloud architectures and other Federal IT systems and commercially-available products --A.4.1 By December 31, 2013, NARA will incorporate into existing reporting requirements an annual agency update on new cloud initiatives, including a description of how each new initiative meets Federal Record Act obligations and the goals outlined in this Directive. For the initial report the agency will identify any existing use of cloud services or storage, and the date of implementation. 39

40 Archivist/OMB Directive M-12-18, Managing Government Records Directive, dated 8/24/12: II.A.5 Evaluate the feasibility for secure data at rest storage and management services for Federal agencyowned electronic records By December 31, 2013, NARA will determine the feasibility of establishing a secure cloud-based service to store and manage unclassified electronic records on behalf of agencies. This basic, shared service will adhere to NARA records management regulations and provide standards and tools to preserve records and make them accessible within their originating agency until NARA performs disposition. 40

41 Defines cloud models in accordance with NIST definitions Discusses records mgmt challenges Details how agencies can meet records mgmt responsibilities 41

42 1) Include records officer in planning & deployment of cloud computing solutions 2) Declare which copy of records will be the official record copy (value of cloud version may be greater). 3) Determine if cloud data covered under existing records schedules 4) Include instructions on how records will be captured, managed, retained, made available to users 42

43 5) Instructions on conducting a records analysis, including on system documentation & metadata 6) Instructions to periodically test transfers of Federal records to other environments, including agency servers, to ensure portability 7) Instructions on how data will be migrated to new formats, so records are readable thru their life cycle 8) Resolve portability and accessibility thru good RM policies and data governance practices (interoperability, security, access, etc.) 43

44 Agencies maintain responsibility for managing records whether they reside in an agency s physical custody or if maintained by a 3 rd party contractor. When dealing with 3 rd parties, include RM clause to ensure that contractor must manage records in accordance with Federal Records Act, 44 USC Chapters 21, 29, 31, 33, and NARA Regs, 36 CFR Chapter XII Subchapter B. 44

45 The Quoter shall provide common Application Program Interfaces (APIs) allowing integration with third party tools such as archiving solutions, E-Discovery solutions, and Electronic Records Management Software Applications. The Quoter shall support an immutable management solution integrated with the messaging system in accordance with the requirement for Federal agencies to manage their messages and attachments as electronic records in accordance with 36 CFR , including capabilities such as those identified in: DoD STD V3, Electronic Records Management Software Applications Design Criteria Standard, NARA Bulletin , July 31, 2008, Guidance concerning the use of e- mail archiving applications to store , and NARA Bulletin September 8, 2010, Guidance on Managing Records in Cloud Computing Environments. 45

46 Rosetta Stone Approach to Cloud Computing: The Need To Master 3 Languages: Legal, RM, IT 46

47 Questions? Allison Stanton Director of E-Discovery Office of the Assistant Attorney General Department of Justice - Civil Division Jason R. Baron Director of Litigation Office of the General Counsel National Archives and Records Administration 47

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