The practice of e-discovery has always incorporated considerations of new and emerging technologies as well as related attorney competence. With the advent of cloud services and significant use by clients, e-discovery practitioners incorporated knowledge of those new platforms and offerings into their preservation strategies and requests for production, appropriately considering a variety of client and party uses of the cloud, especially for heavily used services such as email, customer relationship manager (CRM) platforms, and document storage and sharing. This focus on the cloud came to a head in the 2014 Brown v. Tellermate Holdings litigation, which examined the defendant’s use of a cloud provider and raised the following considerations for practitioners:
- Counsel about requirements to learn about client data storage (beginning with simply considering “even the most basic information about an electronically stored database of information”).
- Counsel about requirements to take appropriate steps to preserve the integrity of information held in client or client-controlled databases.
- Counsel about diligence to learn about client information that is responsive to party requests.
- Counsel about responsibility to take care when making representations to opposing counsel and the court that might ultimately be unsupportable (and even false and misleading), especially where a lack of diligence in examining client technologies and practices might hamper an opposing party’s ability to pursue discovery in a timely and cost-efficient manner (as well as a court’s ability to resolve a matter in the same way).
While the bar likely took those learnings to heart, adapting to (and learning about) cloud storage solutions as they existed in 2014, recent developments in cloud architecture and record keeping may warrant a “return to class” for litigators as well as attorneys generally.
These developments center specifically on the integration and adoption of another “buzzword” technology: blockchain practices and methodology as integrated into cloud service offerings. Specifically, cloud platforms are beginning to create public ledgers of transactions and activities that occur on their platforms and distribute copies of those ledgers to the edge of their networks (and beyond). [continued]