In June 2011, Apple unveiled its new iCloud service, with the company promoting the next step in moving away from PC-based computing towards a cloud-centric model of computing. Apple’s iCloud service syncs data among devices, supports automatic data backup, and support third party applications which, over time, will presumably permit a wide range of data uses and sharing. Apple’s new service continues a trend I noted when Google announced its Chrome OS.
What does Apple’s announcement mean for eDiscovery? In tech-speak, Apple talks about moving away from all services revolving around the Macintosh or other PCs and “demoting” the PC to just another device – on par with iOS devices. How does that translate into the eDiscovery world? Apple’s new service is one more step away from the old eDiscovery paradigm of simply gathering electronically stored information from a set of custodians’ PCs and media that plug into PCs. Preservation requirements, searching for responsive electronically stored information, and drafting discovery requests must all account for iCloud and its PC-based competitors to come.
Here are some things to think about when doing eDiscovery work at your company:
Preservation: Ask whether your litigation hold policy covers cloud services, syncing, and automatic backup. If not, change the policy to accommodate them now. Make sure your policy actually works by testing it.
Searching: When a discovery request comes in, ask whether the search for potentially responsive ESI includes cloud services. If not, make sure they are added to the list. Probe your co-workers to make sure they have thought of all available sources of ESI.
Drafting discovery requests: While requests usually seek all information in the possession, custody, or control of an opponent or third party in a general way, it is helpful to add specific references to cloud sources to requests to remind other counsel of their obligation to search all sources of ESI for potentially responsive ESI. Bring up these sources as well in your Rule 26(f) conferences or state equivalents. Work with your experts to include cloud computing in these conferences and in crafting discovery requests.
eDiscovery is constantly changing. Apple’s iCloud service is one more reminder of that change. The best way of handling this kind of change is staying on top of developments and accounting for them in our policies and practices.
Stephen Wu
Partner, Cooke Kobrick & Wu LLP