Disclosure’s Future: Bright but a Little Cloudy

Mike Taylor gazes beyond the clouds rolling in from the west. He forecasts the effect of the cloud on e-disclosure and sees sunshine arising from the adoption of cloud computing services by the e-disclosure industry.

With cloud computing making the cover of the Economist,[1] it is clear that everybody (even serious minded financiers) are wondering what is going to happen next in this fast evolving world. Whether or how to use it (or use it more), who to use and whether there is money to be made or saved. For those involved in, or advising on, e-disclosure, the cloud should be their latest preoccupation. This article focuses on the importance of cloud computing to e-disclosure, and the help it may provide for those involved in disclosure. 

The cloud is not a disclosure problem to be coped with in the future. For example the Fulbright and Jaworski 6th Annual Litigation trends survey identified that 18% of UK respondents had disclosed ESI[2] from social networking sites in the past year (as opposed to only 4% of US respondents).[3] 

What is Cloud Computing 

The research firm Gartner define cloud computing as ‘a style of computing where scalable and elastic IT capabilities are provided as a service to multiple customers using Internet technologies’.[4] My own, hopefully easy to understand, general definition is that cloud computing is the ‘offering of IT services and applications over the Internet which have traditionally either been provided by an internal IT function or not provided at all’. 

Examples of cloud computing are everywhere whether it is e-mail, social networking, banking or shopping. Average users come into contact with cloud computing regularly. For example, if your work e-mail address is a traditional server-based service (such as Microsoft Outlook utilising an Exchange Server hidden in the office basement somewhere) and your personal e-mail address is an Internet-based system (such as Hotmail) which you can log onto from any computer with an Internet connection then your personal e-mail is based in the ‘cloud’.  

Why Migrate to Cloud Computing? 

There are many perceived advantages to cloud computing including: 

  • reduced costs
  • IT staff are free to concentrate on networking and hardware issues as they are no longer needed to implement regular software updates
  • increased working flexibility for staff who can easily access e-mail and documentation remotely.

 Who Offers Cloud Computing Services? 

Cloud computing is growing extremely quickly with some of the very largest IT firms investing heavily and vying for supremacy. The Economist identifies the main players in the race to cloud computing dominance as Microsoft, Google and Apple, whilst acknowledging the many hundreds of other cloud computing services that are available in the form of social networking sites, music downloading sites and banking services as well as a myriad of bespoke services designed for specific industries. 

By far the most advanced offering for businesses and individuals at this time is Google. Google Apps offers an extensive suite of applications including, to name but a few, e-mail, Calendar, Mapping, Shopping and Web Searching. Importantly though, Google also offer a ‘Documents’ service. This allows users to create, upload, download and share documentation with other users. These documents are stored in the cloud at one of Google’s data centres and, unless the user so requests, they never touch the user’s hardware. More detailed information can be found at http://docs.google.com/

Microsoft offer a service called ‘Microsoft Bing’. Bing offers many of the same services as Google (e-mail, Mapping, Shopping and Web Searching) but is newer and less advanced than Google in that it doesn’t offer a word processing service similar to Google Docs - yet. More detailed information can be found at http://www.bing.com/

‘Apple MobileMe’ offers a synchronisation service for your Apple hardware so your Mac (and now PC) and your iPhone have the capability to all have the same e-mail, contacts information and calendar entries on them.  This is achieved by having a central repository of this information in the cloud which each piece of media connects to and updates itself periodically. Importantly there is also the facility to upload your entire hard disk to the cloud for backup and sharing purposes, it will surely only be a matter of time before Apple expand the ‘Apps’ Store to enable users to create new documents and save them to the already backed up hard drive. More detailed information can be found here http://www.apple.com/mobileme/

Implications for Disclosure

There can be no doubt that documents created and stored within the cloud are (i) documents within the meaning of the CPR 31.4 and CPR31 PD2.A1 and (ii) under the control of parties (CPR31.8). 

Consequently, litigators and in-house counsel are going to need to become aware of data in the cloud as a potential source of documents for disclosure. Under CPR31 PD 2.A2 they will need to discuss with one another, prior to the first CMC, issues surrounding data stored in the cloud - so being able to understand the cloud and the terminology surrounding it is essential.  

The archiving feature of Google Mail allows all e-mails to be archived and indexed for whatever period of time the administrator sets (up to 10 years). Importantly this needs to be set for the correct period the first time, because changes made to this setting only affect new messages joining the archive - get it wrong and the e-mails already in the archive will be automatically deleted at the wrong time.  However, if organisations get this right then the searching and collection of e-mail data residing on the cloud becomes extremely easy to do in-house, taking away much of the cost of e-disclosure if, of course, IT staff acquire the skills necessary for interrogating the data stored in the cloud. 

Three years ago there was much talk from our American cousins of the ‘paradigm shift’ of large organisations bringing e-disclosure services in-house to save costs. More recently there has been a similar amount of chatter about ‘moving to the left’ of the EDRM model[5] in order to save costs.  If configured properly, document services from the cloud would seem to fit both of these recent hot cost reduction topics in that the management of information, its identification, preservation and collection, can all be carried out very quickly and efficiently in-house. E-disclosure service providers should be looking at ways to cheaply and efficiently migrate this pre-filtered data from the cloud to their document review platforms. Hopefully forward looking e-disclosure service providers will recognise that the amount of work they need to do has been reduced and so costs should drop accordingly. 

Purchasing e-mail services from the cloud isn’t all up in the air theory, nor is it restricted to small organisations looking for a cost effective and scalable e-mail service. Google Apps currently has more than 2 million organisational clients and recently Rentokil Initial has migrated its entire e-mail system to Google Apps (35,000 users) and other large clients of Google include the car parts manufacturer Valeo (30,000 users), The University of Westminster (25,500 users), The Guardian Media group (2,400 users), Taylor Woodrow (1,800 users) and The Telegraph Media Group (1,400 users)[6]

Adoption by ED industry

The e-disclosure industry itself is not immune from offering cloud services, in fact the online document review databases that all external service providers worth their salt offer are one of the bespoke services for specific industries touched on earlier in the article.  

The e-disclosure giant Autonomy has recently unveiled its newest data collection offering as part of its Legal Hold Solution Suite, which allows users to analyse and ‘pre-cull’ data in-house using conceptual search capability, and then collect the data that is relevant directly to the cloud. This does away with much of the expensive and time-consuming manual identification and collection of data and completes the task automatically and then uploads the result to the cloud, offering the same functionality as cloud based e-mail systems but from an internally hosted IT system. There is no doubt that as cloud computing becomes more ubiquitous a new range of e-disclosure services will appear which will allow users to identify, collect, filter and host their data online. 

Conclusions

The recent loss of customer data by the cloud computing service provider ‘Danger!’ (a wholly owned Microsoft subsidiary) shows that cloud computing is not without its dangers (no pun intended) and highlights the substantial risk there is in trusting your data to a third party. Of course, those risks are present when you hold your own data, but at least it is a risk controlled by you. ‘Danger!’ has now recovered ‘most if not all’[7] of the data it lost but there was a significant service outage and disruption to customers.  

The combination of the very largest IT firms investing heavily and vying for supremacy in the cloud computing market and large-scale users using the e-mail services means that it is more or less inevitable that more and more companies will migrate to the cloud and that those companies will slowly use more and more of the document identification, collection and filtering functionalities available from the cloud.  

With this migration, lawyers, IT staff and external service providers will all need to adapt not only to disclosing from the cloud but also to using the cloud to cut cost from the expensive process of litigation. 

Mike Taylor is a Director of i-Lit Limited, an independent e-disclosure consultancy. Mike advises law firms and their clients as well as government departments on all aspects of e-disclosure: www.i-lit.co.uk

 



[1] 17 October 2009

[2] Electronically Stored Information

[3] Of the 408 companies surveyed 125 were based in the UK and 276 in the US (with 7 in other locations), meaning that the  UK’s 18% figure represents 22 companies and the US’s 4% figure represents 11 companies.

[4] http://blogs.gartner.com/daryl_plummer/2009/01/27/experts-define-cloud-computing-can-we-get-a-little-definition-in-our-definitions/

[5] The Electronic Discovery Reference Model is the industry wide accepted process for e-disclosure, the left hand side of the model is concerned with information management, identification, preservation and collection. For more see http://edrm.net/

[6] Figures obtained from an article entitled ‘Rentokil Initial puts email in order with giant Google Apps deal’ from ‘CIO Business Technology Leadership’ 12 October 2009 by Rhys Lewis.

[7] http://www.microsoft.com/Presspass/press/2009/oct09/10-15sidekick.mspx

Published: 2009-12-02T12:59:37

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