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E-Discovery et le Cloud: Quelques problèmes à considérer
Categorie: Blogue de l'Équipe LégaleLa tendance relativement récente de l'entreprise d'externaliser ses données de gestion hors site a clairement donné lieu à un large éventail de préoccupations quant à la manière dont les informations préalablement stockées localement, sa sécurité et de récupération sont touchés par le nuage.
The relatively recent trend of business to outsource it’s data management offsite has plainly given rise to a wide range of concerns as to how previously locally stored information, its security and retrieval are being impacted by the cloud.
Not to be forgotten in these considerations is how the interposition of a third party between a potential litigant and its data may effect it’s obligations with respect to E-Discovery.
The Federal Rules of Civil Procedure, assume- and require- that litigants are able to describe and produce in physical or electronic form, all documents which are, or are required to be, in their possession, custody or under their control. and to produce them in their entirety and in their original form without modification of any kind
The mere fact that such documents are no longer in a filing cabinet on the premises neither of a litigant nor, in the case of cloud computing even contained on a hard drive or server which is locally accessible points out the potential complications that may develop at the discovery stage of the litigation process.
It would be very wise for anyone who may potentially be a party to litigation to carefully work through their contractual arrangement with off site storage providers to make certain that the provider is willing and able to make exceptions to some routine maintenance that can overwrite or even delete some stored data which may be pooled with that of literally hundreds of thousands of other users
It is of extreme importance that users, and in particular their counsel be aware of the precise terms and conditions of how data is being stored and of what may be done to it during storage.
Whatever its various strengths, cloud computing represents a significant factor of uncertainty to those who may be called upon in the context of litigation to recall from storage and produce documents whose relevance will not be discernable for years.
Litigants, in the terms expressed by the Court in Cartel asset Management v Ocwen Financial Corp No.01-CV-01644-RED-CBS at 25 (D.Co 8 Feb 2010) must be “candid, co-operative and transparent” in responding to E-Discovery Orders and the courts have not yet created any safe harbors for those acting in good faith who fail to respond as they would have thirty years ago when such Orders were limited to hard copies of documents
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