Cloud Computing: E-Discovery Challenges Best Practices to Minimize Pitfalls in Identification, Preservation and Collection of ESI

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1 Presenting a live 90-minute webinar with interactive Q&A Cloud Computing: E-Discovery Challenges Best Practices to Minimize Pitfalls in Identification, Preservation and Collection of ESI WEDNESDAY, OCTOBER 24, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Todd Nunn, Partner, K&L Gates, Seattle Tanya Forsheit, Partner, Information Law Group, Manhatten Beach, Calif. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Cloud Computing and E-Discovery Todd L. Nunn e-discovery Analysis and Technology Group, K&L Gates, Seattle

6 Cloud Computing E-Discovery - Contents Cloud Computing Introduction Possession, Custody and Control Litigation Holds/26(f) Conference/Collection Use and Admissibility Jurisdiction Third-party Subpoenas 6

7 What is Cloud Computing? Cloud computing comes into focus only when you think about what IT always needs: a way to increase capacity or add capabilities on the fly without investing in new infrastructure, training new personnel, or licensing new software. Cloud computing encompasses any subscription-based or pay-per-use service that, in real time over the Internet, extends IT s existing capabilities. Knorr, Galen, What cloud computing really means, Infoworld (4/7/2008) 7

8 What is Cloud Computing? The very definition of cloud computing remains controversial. Consulting firm Accenture has crafted a useful, concise definition: the dynamic provisioning of IT capabilities (hardware, software, or services) from third parties over a network. Cloud computing is a computing model, not a technology. Fogarty, Cloud Computing Definitions and Solutions, CIO.com (9/10/2009). 8

9 Types of Cloud Computing Services - NIST Cloud Software as a Service (SaaS) Use provider s applications over a network Cloud Platform as a Service (PaaS) Deploy customer-created applications to a cloud Cloud Infrastructure as a Service (IaaS) Rent processing, storage, network capacity, and other fundamental computing resources 9

10 The NIST Cloud Definition Framework Deployment Models Private Cloud Hybrid Clouds Community Cloud Public Cloud Service Models Software as a Service (SaaS) Platform as a Service (PaaS) Infrastructure as a Service (IaaS) Essential Characteristics On Demand Self-Service Broad Network Access Rapid Elasticity Resource Pooling Measured Service Massive Scale Resilient Computing Common Characteristics Homogeneity Virtualization Geographic Distribution Service Orientation Low Cost Software Advanced Security 10 10

11 Advantages of Cloud Computing Lower Costs Reduce owned infrastructure Reduce personnel Increase Computing Capabilities Large scale storage/massive processing Flexibility rapid deployment Specialized tools/applications/services Solves Problems Technology on demand 11

12 Disadvantages of Cloud Computing - Control Bottom line Third party has data Loss of physical control Security Access restriction/control Auditability visibility Forensic access Still responsible legally for data handling Still legally in control Discovery obligations Regulatory compliance 12

13 Disadvantages of Cloud Computing Cloudiness Who has data Cloud service provider Data center provider More parties backup provider consultants Financial viability - Robust systems Where is data Multiple providers Different states/countries How is it being handled Co-mingling with other customer s data Backup policy/retention Permissions/Export/Transfer 13

14 Cautionary Tale: Liquid Motors, Inc. v. Lynd, No.3:09-cv-0611-N (N.D. Tex. April 3, 2009) FBI executed search warrant, raided Liquid Motors (LM) building, seized all equipment LM was not suspected of any wrongdoing Seizure and removal of equipment prevented LM from conducting business LM clients who relied on the hosting service also suffered interruption LM applied for temporary restraining order and return of equipment Court found probable cause for FBI s retention of equipment, denied application, ordered storage array returned within three days (after being copied), ordered other servers and second storage array copied and returned to LM as soon as possible 14

15 Questions to ask Cloud Provider as a start Will my data be in the same database as other customers? Will you commit to segregating our company data How do you deal with differences in retention periods between customers? When you perform backups, will my data be co-mingled with the data from other companies on the same tape? What is your retention period for your backup tapes? When backup tapes reach the end of the retention period, how many months is it before you re-use them? Where will my data reside? Will you commit to a set location Can you provide me information of data center provider 15

16 Possession, Custody, Control 16

17 Possession, Custody and Control Under Rule 34, Control does not require that the party have legal ownership or actual physical possession of the documents at issue. Documents are considered to be under a party s control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action. A contract about document handling is sufficient to establish party control over documents in the possession of a third party. 17

18 Possession, Custody and Control With material in cloud, no physical custody, but legal control Legal control in form of agreement/contract for cloud services Irony is that you could have legal control (or entitlement), but might not have practical ability to get documents Contract should spell out precisely how get and who pays Must understand how data is stored to avoid surprises since you are legally in control 18

19 Preservation 19

20 Zubulake: Preservation Standard Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 431 (S.D.N.Y. 2004). The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) 20

21 Legal Holds Start with Document Retention Policy Understand Policy v. Practice Coordinate with Records Manager or IT Whom do you tell? Key Custodians Data Stewards: Including Cloud Providers Evolving Process Revisit at Critical Stages 21

22 Legal Holds How do you tell them? In Writing Depends on Culture What do you tell them? Describe the Case Document Categories Instructions for Technical Handling Consequences/Contact Information Follow up Follow up Notices Interviews 22

23 Cyntegra, Inc. v. Idexx Labs., Inc., 2007 WL (C.D. Cal. Sept. 21, 2007) Data stored on third-party s server was deleted when Plaintiff failed to make payments Defendant moved for spoliation sanctions Among other things, Plaintiff alleged it did not have control of the documents for purpose of preservation 23

24 Cyntegra, Inc. v. Idexx Labs., Inc., Cont. Similarly, Plaintiff had sufficient control and legal right over the deleted files to constitute fault. Plaintiff contracted to store business documents on NetNation s computer servers. At least until March 7, 2006, when payment was discontinued, Plaintiff could direct the flow of information to and from NetNation s servers. Because Plaintiff could have anticipated the possibility of litigation by this time, it had an affirmative duty to make payments and preserve the evidence. Plaintiff cannot bypass this duty by abandoning its documents to a third-party and claiming lack of control.... A contractual relationship with a third-party entity provides, at a minimum, an obligation to make reasonable inquiry of the third party entity for the data at issue. 24

25 Legal Holds Let s Cloud The Issue Document management/litigation response plan must take cloud services into account Talk to custodians about what they use/how they store Contract with Cloud provider should be specific about how legal holds will be handled/charged Specific of how any deletion will be discontinued How handle preservation of your data, while handling co-mingled data Must understand retention periods, back up practices, co-mingling of data, redundancy of systems, security practices of cloud provider Provider failing or being taken off line during preservation period could be found to be spoliation Preservation periods could be years long, how maintain/transfer Legacy ESI 25

26 Federal Rule 26(f) In conferring the parties must discuss any issues about preserving discoverable information 26(f) Advisory Committee Notes discussion of ESI will involve nature of parties information systems It may be important for the parties to discuss those systems, and accordingly important for counsel to become familiar with those systems before the conference. 26

27 Federal Rule 26(f) Advisory Committee Notes Reasonableness should guide preservation efforts The parties discussion should pay particular attention to the balance between the competing needs to preserve relevant evidence and to continue routine operations critical to ongoing activities. Recommends parties goal should be to agree to reasonable preservation steps taking all considerations into account 27

28 Rule 26(f) Conferences Let s Cloud The Issue Due diligence to understand how cloud provider is storing data Must understand cloud provider system to meet requirements of 26(f) If problematic features (slow collection, change metadata, failed or lost data or provider), should flag in conference 28

29 Inaccessible data FRCP 26(b)(2)(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. 29

30 Inaccessible data FRCP 26(b)(2)(B) Advisory Committee Notes: A party s identification of sources of [ESI] as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence. Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery. 30

31 Calixto v. Watson Bowman Acme Corp., 2009 WL (S.D.Fla. 2009) Defendant argued backup tapes were inaccessible because of undue burden or cost Vendor estimate for restoring and searching: $40,000 + all expense to review for relevance and privilege Found inaccessible No good cause found because material likely duplicative given time frame and evidence of defendant s preservation But one backup tape from earlier time period found not inaccessible because cost of restoring and reviewing one tape not burdensome, and evidence of no duplication of material 31

32 Starbuck s v. ADT Security Services, 2009 WL (W.D. Wash.) Used a Zantaz archive system for certain time period Plasmon System 500 double sides DVDs accessed by a robot arm Very slow and laborious to retrieve but still in use ADT argued that archive was inaccessible Court held archive not inaccessible Court did not find time or expense estimates credible Because still in use held must be accessible Cannot relieve party of duty to produce those documents merely because has chosen a means to preserve which makes ultimate production of documents expensive 32

33 Inaccessible Data Let s Cloud The Issue Burden is on data owner to show inaccessibility Agreement should be specific about costs for litigation support Not inaccessible just because ESI hard/expensive to get Must understand what cloud provider has and how it works to support argument of inaccessibility Arguments that data is redundant Support specific arguments regarding expense 33

34 Collection 34

35 Collection of ESI Collect by custodian Full collection Self collection Collect by search terms Sweep and keep systems File shares Non-custodial sources Databases Cloud sources Preservation of metadata and file structure 35

36 Collection Let s Cloud The Issue Ability to collect completely as important under federal case law Understand where data is stored Need to be able to identify custodian material and track what is collected Speed of collection Collection in bulk or custodian-by-custodian/document-by-document Format - does cloud storage change metadata What metadata is provided Will provider be able to prove nothing was deleted - audit 36

37 Authentication 37

38 Procedure of Authentication Authenticity under 104(b) Judge makes preliminary determination Based on admissible evidence Sufficient evidence to support a jury finding of relevance Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so 38

39 Authentication Evidence rules on authentication apply to ESI in the same way as other evidence Rules are the same for paper and ESI Three methods of authentication refer to computer based evidence in advisory notes (federal) 901(b)(7) (public records and reports) 901(b)(8) (ancient documents or data compilations) 901(b)(9) (processes or systems) 39

40 Rule 901. Requirement of Authentication or Identification (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: 40

41 Available Methods to Authenticate ESI, cont d. Rule 902: Self-Authentication: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: Does not require the sponsoring testimony of any witness Opposing party may still challenge authenticity Provisions most commonly used for ESI: 902(d): Official publications (e.g., Census Bureau) 902(g): Trade inscriptions (e.g. business s) 41

42 Internet Website Postings/Social Media 901(b)(1): Witness with personal knowledge 901(b)(3): Expert testimony 901(b)(4): Distinctive characteristics 901(b)(7): Public records 901(b)(9): System or process capable of producing a reliable result 902(5): Official publications 902(11): Business Records 42

43 Other Methods of Establishing Authenticity Examples listed in Rules 901 and 902 are illustrative only, not exhaustive Court may hold that documents produced by a party in discovery are presumed to be authentic, shifting the burden to the producing party to show that the evidence they produced was not authentic Court may take judicial notice under Rule 201 of certain foundational facts needed to authenticate an electronic record 43

44 Other Approaches to Authenticity Request opponent to admit the genuineness of the evidence through CR 36 Requests for Admission Make request at pretrial conference that opponent agree to stipulate regarding the authenticity of documents Disclose electronic evidence in ER 904 pretrial disclosures of documents; if opponent does not object within 14 days, any authenticity objections are waived 44

45 Deal with Authentication Early Party s own records At time of collection, production When identifying/interviewing witnesses Subpoenas Limited access and leverage on witnesses Send form declarations Use records depositions Get stipulations 45

46 Use and Admissibility Let s Cloud The Issue Will you have the information to satisfy the authentication under 901 and 902 Key is security and access controls Is there visibility into this for provider Who at provider will execute a declaration required under authentication rules Contract should provide for this support 46

47 Jurisdiction 47

48 Where is your data? Location of data may control conditions of disclosure EU & Other data protection laws could affect your use and transfer of data 48

49 Can cloud computing affect personal jurisdiction? Perhaps. Forward Foods LLC v. Next Proteins, Inc, 873 N.Y.S.2d 511 (N.Y. Sup. Ct. 2008) In furtherance of sale of business, defendant set up virtual data room which made important documents available to interested parties Plaintiff utilized data room to view documents before finalizing purchase Purchased business underperformed, Plaintiff filed suit Defendant moved to dismiss for lack of personal jurisdiction 49

50 Forward Foods LLC v. Next Proteins, Inc. Here, Defendants contacts with New York amount to a visit by Jason Stephens, Director of Health and Fitness sales channel, a virtual data room where Defendants uploaded documents for Emigrant to review in New York, and several s containing additional documents sent to Emigrant in New York. It is undisputed that the meeting between Jason Stephens and Emigrant in New York did concern the sale of Defendants business to Plaintiff and that Defendants followed up on the meeting with additional s to New York. Plaintiffs correctly argue that Defendants maintained sufficient contacts with the state of New York and have clearly transacted business within the state such that personal jurisdiction over Defendants under CPLR 302(a)(1) would be appropriate. * Case dismissed for forum non conveniens 50

51 Third-Party Subpoenas 51

52 The Stored Communications Act: 18 U.S.C et seq. Regulates disclosure of content and non-content information by two types of providers: Electronic Communication Service (ECS) Remote Computing Service (RCS) Regulations differ depending on provider type Generally content will not be disclosed absent consent (who can give consent depends on provider) Other more rarely used exceptions may also apply Civil subpoena is not an exception requiring disclosure: See e.g., Special Markets Ins. Consultants, Inc. v. Lynch, No. 11 C 9181, 2012 WL (N.D. Ill. May 2, 2012) Non-content information, however, may be disclosed pursuant to a subpoena 52

53 Seeking Content? Compel Consent (or Use Rule 34): Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008) Defendants alleged SCA prohibited any disclosure of content of text messages absent consent, which Defendant sought to withhold Court ruled that City could be compelled to provide necessary consent for disclosure: In any event, even if Defendants are correct in their contention that SkyTel cannot produce any communications in this case without the lawful consent called for under 2702(b)(3), the Court finds that the Defendant City has both the ability and the obligation to secure any such consent that the SCA may require. Courts analysis relied heavily on question of control pursuant to Rule 34 Defendants had control of the content such that they could consent to disclosure Court counseled that a Rule 34 request directly to a party was a more straightforward path and avoided many sticky questions under the SCA 53

54 Does control and consent analysis apply to non-parties? Yes. Thomas v. Deloitte Consulting LP, 2004 WL (N.D. Tex. June 14, 2004) Defendant sought production of bank records from non-parties Court ordered production of documents or authorization for bank to disclose: Rule 45(a) requires a person served with a subpoena to produce all responsive, non-privileged documents in his possession, custody or control. FED. R. CIV. P. 45(a)(1)(C). This rule is broadly construed to encompass both actual and constructive possession.... CHS and FPI make no argument that they do not have a legal right to obtain bank statements and checks from Bank of America and Regions Bank. The court will require that they do so or, alternatively, execute authorizations to enable defendant to obtain these documents directly from the banks. 54

55 Criminal Investigations are Different: Twitter v. Harris, 2011NY (N.Y. Crim. Ct. 2012) NY Court ordered production of content and non-content information from Twitter Held account owner did not have standing to quash Twitter subpoena No proprietary interest No privacy interest Production was ordered pursuant to 18 U.S.C. 2703(d) (court order): court order is available to governmental entities under this provision Despite objection, Twitter finally produced the materials after being threatened with contempt and sanctions 55

56 Seeking Non-Content Information? Serve a Subpoena: Achte/Neunte Boll Kino Beteiligungs GMBH & Co. v. Does , 736 F. Supp. 2d 212 (D.D.C. 2010) Court granted leave to serve Rule 45 subpoenas on ISPs seeking to obtain information sufficient to identify each Defendant, including name, current (and permanent) addresses, telephone numbers, addresses and Media Access Control addresses District Court denied subsequent Motion to Quash brought by non-parties whose information would be produced 56

57 Beluga Shipping GMBH & CO. KS Beluga Fantastic v. Suzlon Energy, Ltd., 2010 WL (N.D. Cal. Sept. 23, 2010) Foreign party sought to compel s and records related to accounts of foreign cross-defendants Google, based on inability to comply, sought to intervene Court held contents of s could not be disclosed without subscriber s consent and granted motion to intervene, but ordered production of documents reflecting: when the accounts were created, the names of the account holders as provided to Google, the countries from which the specific accounts were created Google instructed to preserve the snapshot of the s in the specific Gmail accounts set forth above pending further showing of consent by account holders 57

58 58

59 2012 Cloud Computing E-Discovery Challenges Implications for Cloud Computing Contracts October 24, 2012 Tanya L. Forsheit, Esq., CIPP/US Founding Partner, InfoLawGroup LLP

60 SEGALIS PLLC E-Discovery Implications for Cloud Computing Contracts Contractual Considerations Searchability/Availability/Forensics Preservation/Integrity/Authentication Return and Secure Disposal Subpoenas, Control and Access Extended/Multi-Level Relationships Right to Conduct Forensic Exam Cross-Border Data Transfers Sample Provisions 60

61 SEGALIS PLLC Searchability/Availability/Forensics Searchability and availability of data in cloud Forensic assessment (identifying, collecting and preserving data) in cloud context Metadata 61

62 SEGALIS PLLC Preservation, Authentication and Data Integrity For purposes of meeting evidence preservation requirements, and discovery obligations in litigation and government investigations, it may be important for a cloud services contract to require that a cloud provider preserve information and provide the customer with access to the information in the form in which it is maintained in the ordinary course of business, sometimes on short notice. 62

63 SEGALIS PLLC Preservation, Authentication and Data Integrity (cont.) Duplication/Replication Issues. You may have many extra copies of data in many additional locations. This could increase the scope of company preservation obligations (especially if information is not disposed of pursuant to routine records retention schedule). Data Authentication and Integrity. If multiple copies are made (without your knowledge), it may be difficult to ascertain which is the original (also consider timing issues/server settings). 63

64 SEGALIS PLLC Return/Disposal Like other outsourcing agreements, cloud contracts should provide for return and/or secure disposal of the information in accordance with the customer s directions. 64

65 SEGALIS PLLC Access-Extended/Multi-Level Relationships Extended Cloud Relationships- Cloud providers use other cloud providers Ensure ability to access data when several levels removed Where is the data actually being stored, processed and transmitted? Has the direct cloud provider secured rights to ensure that it can preserve/gather data? 65

66 SEGALIS PLLC Cross-Border Data Transfers What happens when the data resides in another country? Conflicting EU Privacy Laws and Blocking Statutes Contracts Insufficient to Address Need Safe Harbor/Standard Contractual Clauses/BCRs Still may not be able to process data for US discovery 66

67 SEGALIS PLLC SAMPLE PROVISIONS 67

68 SEGALIS PLLC Preservation, Return, and Secure Disposal of Information Service Provider shall preserve any information provided by Customer to Service Provider, including but not limited to any metadata, in accordance with Customer s instructions and requests, including without limitation any retention schedules and/or litigation hold orders provided by Customer to Service Provider, independent of where the information is stored (specifically, and without limitation, even where such information resides with or is held, processed or stored by a service provider, sub-contractor, vendor, or other third party). 68

69 SEGALIS PLLC Preservation/Integrity, Return and Secure Disposal of Information (cont.) Service Provider shall take reasonable steps to ensure proper destruction (such that information is rendered unusable and unreadable) and return of information to Customer in a format requested by Customer and at Service Provider s expense when it is no longer needed to perform services pursuant to the Agreement or [x] days following termination of the Agreement. Service Provider shall provide written certification that all such information has been returned and deleted. 69

70 SEGALIS PLLC Subpoenas, Control and Access Service Provider shall cooperate with Customer in responding to any party, nonparty, or government request for information, including but not limited to metadata, provided by Customer to Service Provider. In the event that such requests are served on Customer, Service Provider shall provide Customer with access to such information in the format in which it is maintained in the ordinary course of business (or, on Customer s request, with copies) within [x] hours of receipt of any request by Customer for such access or copies. In the event that such a request (in the form of a subpoena, order or otherwise) is provided to or served on Service Provider, Service Provider shall notify Customer in writing by electronic mail to [INSERT ADDRESS] immediately and in no event more than [x] hours after receiving the request, subpoena or order. Such notification must include a copy of the request, subpoena or court order. 70

71 SEGALIS PLLC Subpoenas, Control and Access (cont.) Service Provider also shall immediately inform in writing the third party who caused the request, subpoena or order to issue or be provided or served on Service Provider that some or all the material covered by the request, subpoena or order is the subject of a nondisclosure agreement. Service Provider shall cooperate with Customer in seeking any protection from disclosure for such information that Customer shall deem appropriate. 71

72 SEGALIS PLLC Authentication In the event that Customer is required to authenticate any of the information, including without limitation metadata, provided by Customer to Service Provider, Service Provider shall cooperate with Customer in providing any requested assistance with such authentication, including without limitation testifying (by affidavit, declaration, deposition, in court, or otherwise) as a custodian of records to authenticate the information, establish chain of custody, and/or provide any other requested information. 72

73 SEGALIS PLLC Want More? Please feel free to contact: Tanya L. Forsheit (310)

74 2012 Cloud Computing E-Discovery Challenges Implications for Cloud Computing Contracts October 24, 2012 Tanya L. Forsheit, Esq., CIPP/US Founding Partner, InfoLawGroup LLP

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