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Putting a Clause in the Contract for Electronic Discovery

by Drew Lewis. 21st November 2013 Let’s start with a not too shocking statement: the cloud offers many advantages for legal firms in terms of storage capacity, as well as reductions in IT, hardware and software costs.  Nothing controversial so far.  But for all of the convenience and benefit cloud storage and services offer, there are also some risks that must be managed, especially in...

by Drew Lewis.

21st November 2013

Let’s start with a not too shocking statement: the cloud offers many advantages for legal firms in terms of storage capacity, as well as reductions in IT, hardware and software costs.  Nothing controversial so far.  But for all of the convenience and benefit cloud storage and services offer, there are also some risks that must be managed, especially in relation to electronic discovery. Recently I spoke to a group of students at Vanderbilt Law regarding this very topic (among others) and I stressed that it is increasingly common for eDiscovery to extend to the cloud and this risk can be proactively managed.

Notwithstanding some third party service providers that will rely upon the Stored Communications Act to stonewall a civil subpoena (do you “Like” that tactic?), problems still arise when opposing litigants bypass your firm and go to your cloud provider directly. Understandably, though potentially shocking to some, the cloud provider doesn’t have the same vested interest as you do in protecting your most sensitive stored information. In fact, some cloud providers’ terms and conditions are very clear that your data can be disclosed to others as they believe is reasonably necessary or appropriate, or if legally required to do so.  Not only can this have repercussions for your company in the event of a dispute under the Uniform Trade Secret Act, but you also face a very real danger of having far too much turned over during electronic discovery.  Want to take it one step further?  What about receiving a bill from the provider for producing the data? Talk about a worst-case scenario: you pay for your cloud provider to produce documents that ultimately comprised your case.

Meredith Thornburg White of Barnes & Thornburg, LLP points out in a recent article on the National Law Forum, one way to prevent this type of situation is to structure smarter contracts with cloud providers. The contract should require the provider to alert you immediately once they receive a subpoena or request for any information. One other key protection is to establish your right to review any documents the provider produces before they turn it over. Finally, two other stipulations to consider: the contract should contain explicit terms for how long data will be stored and specific conditions for who shoulders the costs during electronic discovery. These contract provisions may seem like common sense, but they’re also exactly what law firms can’t forget to put in place as eDiscovery continues to become just part of doing business.

About The Author:

Drew Lewis is eDiscovery Counsel with Recommind.  In this role he consults with outside counsel and in house legal departments about effective discovery strategies and the benefits of implementing predictive coding solutions. Prior to joining Recommind, Drew worked as a commercial litigator with Baker Donelson out of the firm’s Nashville office.  Drew has handled all aspects of discovery in his representation of clients, and through his private practice developed a streamlined approach to discovery that was helpful to resolve litigation favorably while still keeping costs in alignment with the budget of the client.

Source:  Recommind

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