Discovery Difficulties Presented by Cloud Computing

Grazed from The National Law Review.  Author: J. Michael Nolan III.

In the age of cloud computing, electronically stored information (“ESI”) is no longer stored exclusively on physical drives or Facebook. Dropbox and Google Drive are programs (“apps”) that provide cloud storage services. A user can upload files to reserved space on a server from any computer, smartphone, or tablet connected to the Internet.

The stored data can be synchronized and downloaded to the user’s other devices. Individual users get limited storage space for free, and higher limits are available on a pay-as-you-go basis. Apple’s “App Store” and Google’s “Google Play” store for Android devices show that Dropbox and Google Drive are among the top free downloadable apps for smartphones. (Microsoft Skydrive, Apple iCloud, and Amazon Cloud are other popular cloud computing services.)…

Attorneys should bear in mind that a subpoena sent directly to one of the service providers of these apps likely will meet a motion to quash based on Title II of the Electronic Communications Privacy Act (the “Stored Communications Act” or “SCA”). The court in Crispin v. Christian Augigier, Inc., 717 F.Supp.2d 965 (C.D. Calif. 2010), for example, found that the SCA was passed by Congress to prohibit electronic communication service providers, such as Facebook and Myspace, from revealing the contents of communications electronically stored to anyone other than the addressee or other intended recipient. Therefore, to obtain “cloud” ESI, a subpoena to the plaintiff or defendant app user is the better route…

Read more from the source @ http://www.natlawreview.com/article/discovery-difficulties-presented-cloud-computing