During the past five years or so, lawyers and their clients have struggled to reconcile their discovery obligations under federal and state discovery rules with the ever-expanding digital universe. Indeed, as technology continues to evolve, the digital sea of electronically stored information ("ESI") produced by companies continues to rise. Consequently, the costs associated with creating new information technology (or "IT") infrastructure, and with maintaining and preserving (or hosting) ESI, also continue to rise. In many cases, the duality of rising costs and increased technological complexity have led companies to look to third-party providers for some or all of their infrastructure and hosting needs. In fact, third-party hosts and IT service providers of varying sizes and offerings are essentially a ubiquitous reality in our digital economy today. Consequently, it should not be a surprise that cloud computing represents a natural, albeit somewhat different, model in the evolution of the use of IT.
This paper will briefly discuss discovery obligations under the Federal Rules, specifically with respect to e-discovery2; the "reasonableness" standard as it relates to identification, preservation and collection of ESI; and particularly electronic information stored in the cloud. In that regard, this paper will highlight issues to address with your cloud provider that may help you minimize cost and burden, and help establish "reasonableness" for purposes of meeting your discovery obligations.
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