There's a compelling business case for attorney’s utilizing cloud storage including cost, ease of access, and security, but can lawyers ethically use it? I still have attorneys argue with me about the appropriateness of storing client-related data, client notes, case notes, and eDiscovery results sets in the cloud. Because cloud storage involves storing data, on remote servers/storage outside of the lawyer's direct control, it continues to generate concerns regarding its acceptability under applicable professional ethics rules.
Corporate data is what powers most businesses and so is a valuable business asset. In fact, you can say that companies employ information workers to generate and consume data for the betterment of the company. But can you actually calculate the value of data? Employee’s annual salary, benefits, training, and corporate infrastructure all go into calculating the cost of information. On the other side of the equation, average revenue and profit per employee are measures of efficiency and productivity. To be successful, companies must generate more revenue (and profit) than total cost. And these are driven by how well companies manage their information.
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Many companies faced with a need to archive data (usually email) due to regulatory requirements, eDiscovery responsibilities, or business requirements, look for solutions based on capabilities, cost, vendor reputation, security, and regulatory requirements. In the past, companies in need of archiving solutions purchased one of the many on premise or cloud-based solutions that met their needs. However, many of these archiving solutions actually converted the data so as to enable more efficient storage, indexing, and search. The problem with data conversion is the data can be corrupted or metadata changed or lost nullifying its “golden copy” or copy of record status. In most cases, this is not really a problem… unless you are anticipating or are in fact, involved in litigation.
Updated: Corporate eDiscovery data storage practices have progressed (a bit) over the last 10 years. More than a few times over the years, I’ve received emails from my employer’s corporate legal department informing me that they would need me to search my email—including local and online file repositories—for any potentially relevant content and set it aside until it was asked for. Come to think about it, I never received any follow-up emails releasing me from those instructions …
Can your defense team save additional litigation cost and lower risk by using the cloud to dramatically reduce the number of data transfers? The cloud has become a ubiquitous tool for most companies (and industries) over the last several years. However, when dealing with legal situations and eDiscovery, companies are still in the habit of shipping hard disks, optical disks, or if they’re lucky, electronically transferring terabytes of data to their external law firms in response to eDiscovery demands. Those same law firms turn around and follow the same data shipping/transfer processes when turning over client eDiscovery data to opposing counsel.
Organizations habitually over-retain information, especially unstructured electronic information, for many reasons. However, many organizations simply have not addressed what to do with this data so fall back on relying on individual employees to decide what should be kept and for how long and what should be disposed of. On the opposite end of the grey data management spectrum, a minority of organizations have tried centralized enterprise content management systems and have found them to be difficult to use. In these cases, employees find ways around these complex systems by keeping huge amounts of data locally on their workstations, on enterprise file shares, on removable media, in cloud accounts, or on rogue SharePoint sites that are used as “data dumps” with little or no records management or IT supervision. Much of this information is transitory, expired, or of questionable business value. Because of this lack of active management, information continues to accumulate. This information build-up raises the cost of storage as well as the risk associated with eDiscovery. In some cases the company’s General Counsel actively stops grey data “clean up” processes because they are afraid of being accused of destruction of evidence in a future case.
Managing the huge amounts of data submitted by clients for eDiscovery response is a time-consuming and complex task. Many law firms are struggling to keep up with the data storage, professional, and client demands, and many don’t have (or enforce) law firm data ingestion processes nor economical long-term electronic data storage. One continuing issue for many law firms is the data ingestion process (or lack of a process) to ensure client data sets are logged, indexed, secured and managed appropriately. On too many occasions, large client data sets are handed over to the managing attorney directly, bypassing firm data ingestion processes, making it harder to find and manage. So the first key to handling and organizing client data costs effectively is to create and enforce a client data ingestion process that includes participation of the firm’s information governance (IG) team.