Google Chrome OS Foreshadows Complete eDiscovery Overhaul

Last week, Google hosted a press event to answer questions about the upcoming rollout of Google Chrome OS.  We've heard rumblings about the supposed Microsoft-supplanting technology for years -- a browser-based OS, "your browser is your operating system," "the web browser is the most important program on your computer," use web apps instead of (Microsoft) boxed or pre-loaded locally-operating applications, and so on.  Now, Google's vision is nearing reality.  The launch will start next year.  See some of the details about Google Chrome OS and its press event here

One of the main features of Google Chrome OS is the move from local storage to cloud-based storage.  Google says that Chrome OS will enable all data to be stored in the cloud.  Yes, there will be solid-state drives on netbooks running the new OS.  But there won't be any hard drives and user data will be in the cloud.  Yes, third parties may add a local storage option.  See the InformationWeek article here.  But the base configuration will involve cloud-based storage. 

Some people have said for a long time that we are moving towards cloud-based storage.  The thing holding us back perhaps is the lack of ubiquitous Internet connectivity.  There are still many pockets of the U.S. where cell phone coverage is poor, not to mention broadband.  Nonetheless, Google's vision assumes that connectivity is good enough to support a "thin client" model of computing.  And maybe it is for many people who don't go into rural areas or who don't want or need netbook computing while camping in the Sierras (when the pda can hold all of your memos until you return to the office). 

In any case, I do agree that eventually we will have ubiquitous or near-ubiquitous network connectivity.  Many businesses will be turning to cloud applications for business productivity software.  And storage will be in the cloud, at least as a backup, and probably local storage will shift from the dominant storage model to being the backup to cloud storage. 

What does that mean for eDiscovery?  It means a complete overhaul of eDiscovery practices. 

United States District Court Judge Shira Scheindlin, author of the famous Zubulake eDiscovery cases, was once quoted as saying, "We used to say there’s e-discovery as if it was a subset of all discovery.  But now there’s no other discovery."  In the future, if there is no or little local storage, then all eDiscovery will be cloud eDiscovery, with all of its inherent problems, issues of third party control, complexities, and costs. 

The current predominant model for eDiscovery is one in which a computer forensics expert helps a producing party identify custodians, the expert then reviews sources of data and media held by the custodian, including the custodian's hard drives on desktops and laptops, and the expert images the data on local storage devices.  If all eDiscovery becomes cloud eDiscovery, that model will change radically. 

Perhaps if companies use local or private clouds, eDiscovery can be handled centrally, and perhaps costs will go down, not up.  But if businesses use Google and other providers (Microsoft, Apple, Amazon, anyone?) for cloud services, then eDiscovery will involve third party cloud discovery.  Without local storage, it will be much more complex trying to figure out where to find all sources of data, where to find fragments of deleted files, and how we can meaningfully say we have done a complete search. 

Cloud eDiscovery is in its infancy.  If Google Chrome OS forces other companies like Microsoft, Apple, and the Linux providers to follow the new paradigm, eDiscovery practices will need a complete overhaul.  And we need to be prepared today for the changes tomorrow.  It may be that technical and rule-based standards are the only way to keep eDiscovery complexity and costs from spiraling out of control.  We need to start the discussions today to be prepared for the massive changes to come tomorrow. 

Stephen Wu

Partner, Cooke Kobrick & Wu LLP

www.ckwlaw.com

swu@ckwlaw.com

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