E-discovery

E-discovery (abbreviation for Electronic discovery) refers to the process of identifying and producing electronically-stored information (ESI) in response to civil and criminal litigation, including metadata and electronic backup materials that may be relevant to that litigation.

Once such litigation is reasonably anticipated (e.g., receipt of a letter threatening a lawsuit), a party has a legal obligation to suspend destruction of such ESI, by issuing a “litigation hold” to all individuals and entities maintaining ESI on the party’s behalf. Failure to take proper and adequate steps to preserve such ESI can result in serious legal sanctions against a party. These risks may be significantly greater when using a cloud computing service, since the service provider may be unable or unwilling for technical, cost, legal or other reasons to halt routine destruction of responsive ESI, which may be maintained or commingled with data of other clients of that service for records management and disposal purposes.

Likewise, the nature of cloud storage (e.g., widely dispersed servers or databases located domestically or even overseas) may complicate the ability to identify, preserve, and retrieve responsive ESI in a timely fashion, further jeopardizing the party’s ability to meet its legal e-discovery obligations.

With regard to data stored in foreign jurisdictions, see generally "The Sedona Conference Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy & e-Discovery – Public Comment Version."