To The Cloud? IT Storage Alternative,

E-discovery Tool, or Both?

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Agenda

What is the Cloud?

How is the Cloud Impacting E-Discovery?

» Mitigating Cloud Concerns

» Preservation and Collection

» DIY Discovery Software: Cloud v. On Premise

The Future of E-Discovery in the Cloud

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What is the Cloud: Simple Depiction

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These platforms contain ESI potentially relevant to litigation!

Examples of cloud platforms:

• Email (Google mail)

• Word processing (Office 365)

• IT archiving (Live Office)

• General data storage (DropBox)

• Corporate platforms (SalesForce.com)

• Social Media (Facebook, LinkedIn)

• Pictures/Music (Snapfish, iTunes)

• Proprietary platforms for a specific

industry (Ontrack Inview for litigation)

Simplicity:

» Fast deployment

» Uptime commitments

» Minimal expertise requirements

Cost Savings:

» No hardware investment

» No refresh cycles

» No maintenance or upgrades costs

Flexibility:

» On-demand consumption model

» Rapid market adaptation

» Platform independence

» Ubiquitous access models

Possibility of…

» Infinite scalability and resources

» Collaboration across systems

Potential Benefits of the Cloud

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April 2011 ComputerWorld report: 57% of CIOs and storage administrators plan to adopt cloud storage.*

August 2011 Legal Technology News: “That e-discovery will live primarily in the cloud isn't a question of whether but when.” * *

Why are legal teams even talking about the

Cloud?

* Source: Mearian, Lucas. “Most IT managers plan to adopt cloud storage.” ComputerWorld, April 5, 2011.

** Source: Ball, Craig. “Cloud Cover.” Legal Technology News. August 1, 2011

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Survey: The Cloud’s Impact on E-discovery

For information governance and e-discovery, corporations and law firms plan to leave the firewall behind

Source: DIY Discovery Trends Survey, Kroll Ontrack, 2011

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Why are Legal Teams Even Talking About the

Cloud?

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When the “Cloud” means…. Legal teams should care because…

...outsourcing core IT functions (such as

email or document hosting as a corporate

business process)

The cloud replaces a previous in-house

IT function. Cloud-based IT functions

must remain:

- Compliant with regulations

- Compatible with security and privacy standards

- Litigation-ready and fully accessible

- In-step with the duty to preserve ESI

...leveraging SaaS to conduct e-

discovery in-house (in efforts to gain control

and reduce the total cost of litigation)

SaaS-based platforms are compelling

solutions to do-it-yourself e-discovery

problems, allowing:

- More control over EDRM activities

- Flexibility to manage e-discovery projects

- Litigation cost savings

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Control (not location) determines discoverability

» Control does not require legal ownership or actual physical possession of documents

» “Rather, 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.”

– Judge Peck, In re NTL, Inc. Securities Litigation, 244 F.R.D. 179 (S.D.N.Y Jan. 30, 2007).

Plan ahead to preserve and collect documents in the cloud

Understand your access rights to data in the cloud

ESI in the Cloud: Location Does Not Matter

Survey: Cloud E-Discovery

Data security and privacy top the list of cloud e-discovery concerns

Source: DIY Discovery Trends Survey, Kroll Ontrack, 2011 10

Important Cloud Provider Questions

- How and where is my data going to be stored? (ethical walls? shared spindles?)

- How will I be able to access the data?

- Do I need to keep up with software feature/function evolution?

- Who will perform the work to retrieve data from the cloud? How long will it take?

- What security protocols will be followed?

- Does the provider conduct regular third-party penetration testing?

- Will the provider track the data’s chain of custody?

- What are the data destruction policies for the cloud provider?

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Survey: In-House E-Discovery

More e-discovery is conducted in-house or in-firm than most practitioners would expect

Source: DIY Discovery Trends Survey, Kroll Ontrack, 2011 12

Survey: In-House E-Discovery

Three factors make it or break it when purchasing DIY discovery tools

Source: DIY Discovery Trends Survey, Kroll Ontrack, 2011 13

EDRM on Premise v. in the Cloud?

Benefits and Drawbacks

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Benefits:

• Full control of EDRM activities within

corporation or firm

• Data never leaves premises for security

purposes

Drawbacks:

• Corporation or firm is fully responsible for

operation of the technology and

processes

• IT and Legal staffing resources needed to

support the technology

• Technology requires a hardware footprint

that requires maintenance and ongoing

support

• Not scalable for surges up or down or

seamless to transition to outside service

provider

• Not accessible outside the firewall for

outside counsel or experts

EDRM software on

premise

Cloud/SaaS EDRM tools

EDRM on Premise v. in the Cloud?

Benefits and Drawbacks

Benefits:

• No up-front hardware investment

• No IT training or staffing for installation or maintenance

• E-discovery capacity easily scalable without additional hardware costs or IT resources

• Software provider is responsible for information security and disaster recovery considerations

Drawbacks:

• Need to fully vet platform security and processes for importing and exporting data from the platform

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EDRM software on

premise

Cloud/SaaS EDRM tools