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Litigation and Practice Support — May 2015

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ILTA WHITE PAPER: MAY 2015 WWW.ILTANET.ORG CHALLENGES AND TIPS FOR E-DISCOVERY IN THE CLOUD CHALLENGES WE FACE As organizations rely more on Microsoft Office 365, Google Drive and other cloud services to store data, the nature of e-discovery is changing. These tools are growing in popularity, and the features they offer are evolving. These developments profoundly affect how we plan for and execute electronic discovery. In particular, cloud-based SaaS applications are becoming highly prevalent. Adding to the task of sifting through an enormous volume of data is the proliferation of platforms that must be handled during lawsuits. For example, a single case could involve firm email in Office 365, personal email in Gmail, firm documents in a DMS, personal documents created with Google Docs, payroll data with ADP and sales and contact information in Salesforce.com. The level of complexity can increase exponentially with larger cases. There also is no standardization across cloud providers regarding storing data in an e-discovery- friendly manner, making it clear there is a great deal of risk and complexity involved with being called upon to help your clients comply with e-discovery obligations. How and where clients store their data has no impact upon judicial expectations for the immaculate preservation, collection and production of information. Data are often organized in a haphazard manner, depending on the cloud provider, which can make the process of collection unnecessarily costly and difficult. Fortunately, many providers are developing standardized processes (at least on litigation holds). Collection is still likely to be an issue, as is production, but the risk of spoliation of e-discovery material is going down. A selling point of the cloud is that it can enable people to access data from many different devices. This also introduces the issue of "data creep." People are no longer shackled to a desktop or laptop computer to perform many of the functions that cloud-based applications enable them to do. Law firms will have to examine tablets, smartphones and other computing devices, going well beyond work computer and servers. Many traditional e-discovery software and hardware tools we have become accustomed to do not translate well to the cloud. That often means learning and devising new tools and processes. BE PROACTIVE To meet these challenges, you must be proactive. It is critical to understand how to comply with requirements for all relevant systems before data preservation and collection are performed. This means you need to know: • What data reside on which systems • Who controls those systems • What contractual obligations are in place regarding data preservation and the execution of litigation holds • How you can perform collection and production There also is no standardization across cloud providers regarding storing data in an e-discovery-friendly manner, making it clear there is a great deal of risk and complexity involved with being called upon to help your clients comply with e-discovery obligations. 44

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