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eDiscoveryDaily

eDiscovery Case Law: Sanctions for Spoliation, Even When Much of the Data Was Restored

A Virginia court recently ordered sanctions against the defendant in a case of deliberate spoliation of electronic discovery documents.

In E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011), the defendant was found to have committed spoliation “in bad faith” in a manner that constituted a “violation of duty… to the Court and the judicial process,” as follows:

  • The defendant, Kolon Industries Inc., was charged with misappropriation of trade secrets, conspiracy, information theft, and other allegations.
  • Within two days of receiving the plaintiff’s February 4, 2009 complaint, the defendant issued a litigation hold to upper-level employees. Several days after that, on February 10, a second hold notice was sent to all employees in English – even though most of Kolon’s staff members did not speak English.
  • Subsequently, many of the defendant’s key employees were found to have deleted files and emails that may have been relevant for discovery. After extensive investigation, the plaintiff’s expert discovered that the defendant had demonstrably deleted at least “17,811 files and email items” that should have been preserved for discovery.
  • The court determined that employees had deleted ESI “in bad faith,” conducting intentional spoliation and alteration of relevant evidence in direct contravention of the demands of discovery.
  • Even though many (but not all) of the documents were recovered (most from backup tape), the court rejected the defendant’s argument that “there can be no spoliation finding because many documents were recovered” and eventually produced, stating: “The fact that technology permits the undoing of spoliation does not change at all the fact that spoliation has occurred.”
  • Accordingly, the court leveled sanctions against the defendant, ordering it to pay the plaintiff’s legal fees, costs and expenses on this motion, and ordered an adverse inference instruction to the jury.  However, the court found that default judgment requested by the plaintiff was not appropriate, citing defendant’s attempts to place two litigation holds and the “good fortune that many deleted items were recoverable because of the preservation of Kolon’s backup tapes.”

So, what do you think? Were the sanctions appropriate, or should recovery of much of the deleted data have spared the defendant in this case? Have you ever been involved in a case where deleted electronic documents were recovered and sanctions avoided? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: North Carolina Adopts eDiscovery Rules
 

Earlier this year, Wisconsin and Connecticut adopted new eDiscovery rules.  On October 1, changes to the North Carolina Rules of Civil Procedure will go into effect to provide guidelines for handling eDiscovery in North Carolina state courts.  The rule changes, for the most part, follow the same guidelines as the 2006 Amendments to the Federal Rules of Civil Procedure.  Here is a summary of the changes:

  • Discovery Plans: Parties to a case now have the right to require the development of a discovery plan, to manage all discovery in the case (not just eDiscovery).  The parties are required to meet to discuss the possibility of settlement and the preparation of a discovery plan to address discovery of electronically stored information (“ESI”), production of ESI, discovery limitations or phasing, and the deadline for completion of all discovery.
  • Required Production of Metadata: The definition of ESI now expressly includes the metadata for date sent, date received, author, and recipients. The definition of ESI does not include other metadata unless the parties agree or the court so orders.  This is a significant departure from the Federal Rules.
  • Privilege Logs: Privilege logs describing privileged material withheld from discovery are now required.
  • Inadvertent Disclosure: The new rules protect inadvertent disclosure of privileged information during discovery.
  • Sanctions: The amendments adopt a safe harbor provision which mirrors the federal rule, protecting a party from sanctions for losing ESI “as a result of routine, good faith operation of an electronic information system.”
  • Subpoenas:   Rule 45 of the NC Rules of Civil Procedure has been revised to provide that parties producing documents need not produce the same ESI in more than one format, or provide ESI that is not reasonably accessible because of undue burden or costs.

So, what do you think? Are you aware of the “state” of eDiscovery rules in your state?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Best Practices: When Collecting, Image is Not Always Everything
 

There was a commercial in the early 1990s for Canon cameras in which tennis player Andre Agassi uttered the quote that would haunt him for most of his early career – “Image is everything.”  The quote haunted him because, as a young player, he was considered to be more style than substance and unable to “win the big one” – a reputation that he ultimately overcame.

When it comes to eDiscovery preservation and collection, there are times when “Image is everything”, as in a forensic “image” of the media is necessary to preserve all potentially responsive ESI.  This is especially true when one party is suspected of deleting ESI to avoid producing it in Discovery.  For example, a forensic copy of a hard drive will include every byte of data on that drive, including data in unallocated space and file slack – these are locations on the drive that may contain data that was once actively used, but is now available to be overwritten after that data was “deleted”.

However, forensic imaging of media is usually not necessary for Discovery purposes. When it is necessary, the parties (usually in coordination with the court) must establish a protocol for how that inspection will take place. This protocol must be conducted in a manner that is verifiable and is usually conducted by an experienced professional, trained to collect data in a forensically sound manner and qualified to testify in court to that process if required.

For most cases, collection involves straightforward copying of the active targeted ESI as it exists on the producing party’s system.  However, to maintain the integrity of the metadata, not just any means of copying will do.  Copying files with “drag and drop” using Windows Explorer may get the files from one place to another, but key metadata (such as file creation date, which reflects the date of the copy, NOT the original) may be changed.

Fortunately when doing a targeted collection, there are several applications that, if used correctly, will copy files quickly and effectively while preserving the metadata.  Here are a few:

  • SafeCopy 2: Easy to use file copy utility created by Pinpoint Labs specifically for eDiscovery.
  • Robocopy: Microsoft utility for copying files from one location to another.
  • Upcopy: An “intelligent” file copy utility specifically suited for eDiscovery.

Also, FTK® Imager is an imaging and forensic image preview tool that is a free download and part of AccessData’s Forensic Toolkit®.  FTK® Imager also has the option to forensically acquire specific files using the custom content image option.

With any of these utilities, you can support the targeted collection needs for most cases.

So, what do you think? Have you used any of these utilities for eDiscovery collection?  Please share any comments you might have or if you'd like to know more about a particular topic.

Announcement: Trial Solutions is now CloudNine Discovery!
 

In addition to today’s regular blog post about eDiscovery case law, we have an important announcement: Trial Solutions is pleased to announce that we have officially changed our name to CloudNine Discovery!

After much discussion, we determined that a more accurate name was needed to represent our expanded products and services which have developed over the years, particularly in the areas of online data and document review hosting

We selected our new name, "CloudNine Discovery" with two goals in mind: 1) to continue providing customer service that puts our clients "on cloud nine" and 2) to lead the world in combining self-service with managed hosting and "cloud" storage.  Cloud storage is a model of networked online storage where data is stored on multiple virtual servers, generally hosted by third parties, rather than being hosted on local servers.

Our mission will continue to be to simplify the discovery process through innovative technology, transforming data hosting into a world-class experience that is easy and affordable. CloudNine Discovery will offer the same products and services offered by Trial Solutions, and our core leadership will remain intact.

As for the eDiscovery Daily blog?  While the name of the sponsor has changed, the blog will continue to provide daily eDiscovery news and analysis each and every business day, just as we always have.  We haven’t missed a day yet (knock on wood!) and will do our best to continue to provide useful information from an eDiscovery perspective.

As always, please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: "Untimely" Motion for Sanctions for Spoliation Denied

A recent ruling by the US District Court of Tennessee has denied a motion for sanctions for spoliation on the grounds that the motion was “untimely.”

In Am. Nat’l Prop. & Cas. Co. v. Campbell Ins., Inc., No. 3:08-cv-00604, 2011 WL 3021399 (M.D. Tenn. July 22, 2011), the plaintiff argued that the defendants’ admitted failure to preserve evidence “warrants a harsh penalty,” but the court found in favor of the defense that the motion was untimely.

  • The defendants, Tommy Campbell, Marshall C. Campbell and Campbell Insurance, Inc. were previously found to have failed to preserve email evidence from the period between April and July 2009. The plaintiff claimed that these emails contained “damning evidence” and that this discovery spoliation was deliberate.
  • This spoliation was discovered in May 2010, but the plaintiff did not file a motion for sanctions until July 16, 2011 – more than fourteen months after the spoliation was discovered and almost five months after discovery closed in February of 2011.
  • With the trial less than seven weeks way, the court considered this motion for sanctions for spoliation in the light of the summary of the law on spoliation that was provided in Goodman v. Praxair Services, Inc., 632 F.Supp.2d 494 (D.Md.2009). Among other points, the district court in Goodman v. Praxair encouraged courts to be aware of the time between the close of discovery and a motion related to spoliation, as well as cautioning against spoliation motions “made on the eve of trial.”
  • The court rejected the plaintiff’s excuse for the timing on the basis that “because the relevant emails were deleted and cannot possibly be produced, the Motion for Sanctions ‘is not a discovery motion.'”
  • Because of the “disruptive” timing of the motion, and the inability of the plaintiff to effectively explain why they delayed so long in filing a motion after this spoliation was encountered in discovery, the court ultimately ruled against the motion for sanctions, calling it “untimely”.

So, what do you think? Does spoliation of evidence “expire” or should timeliness matter at all in a case like this one? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery
 

A couple of days ago, Law Technology News (LTN) published an article entitled Lawyers Struggle to Get a Grasp on E-Discovery, by Gina Passarella, via The Legal Intelligencer.  Noting that “[a]ttorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget”, the article had several good observations and quotes from various eDiscovery thought leaders, including:

  • Cozen O'Connor member David J. Walton, co-chairman of the firm's eDiscovery task force, who observed that “I'm afraid not to know [eDiscovery] because it dominates every part of a case”;
  • LDiscovery General Counsel Leonard Deutchman, who noted that the younger generation comfortable with the technology will soon be the judges and attorneys handling these matters, asked the question “what happens to those people that never change?”.  His answer: “They die.”
  • K&L Gates eDiscovery analysis and technology group Co-Chairman Thomas J. Smith noted that “A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don't really know the rules and don't know what the case law says”.
  • Morgan Lewis & Bockius partner Stephanie A. "Tess" Blair heads up the firm's e-data practice and hopes that in five years eDiscovery will become more routine, noting “I think we're at the end of the beginning”.
  • Dechert's e-discovery practice guru Ben Barnett said, “Technology created the problem, so technology needs to solve it.”  But, David Cohen, the head of Reed Smith's eDiscovery practice, said that the increasing amount of data sources are keeping ahead of that process, saying “You have to make improvements in how you handle it just to tread water in terms of cost”.

There are several other good quotes and observations in the article, linked above.

On the heels of Jason Krause’s two part series on this blog regarding the various eDiscovery standards organizations, and the controversy regarding eDiscovery certification programs (referenced by this post regarding the certification program at The Organization of Legal Professionals), where do attorneys turn for information?  How do attorneys meet the competency requirements that the American Bar Association (ABA) Model Rules set forth, when an understanding of eDiscovery has become an increasing part of those requirements?

One common denominator of the firms quoted above is that they all have one or more individuals focused on managing the eDiscovery aspect of the cases in which they’re involved.  Having an eDiscovery specialist (or a team) can be a key component of effectively managing the discovery process.  If you’re a smaller firm and cannot devote a resource to managing eDiscovery, then find a competent provider that can assist when needed.

In addition to identifying an “expert” within or outside the firm, there are so many resources available for self-education that any attorney can investigate to boost their own eDiscovery “savvy”.  Join one of the standards organizations referenced in the two part series above.  Or, participate in a certification program.

One method for self-education that attorneys already know is case law research – while there is always variety in how some of the issues are handled by different courts, case decisions related to eDiscovery can certainly identify risks and issues that may need to be addressed or mitigated.  Subscribing to one or more resources that publish eDiscovery case law is a great way to keep abreast of developments.  And, I would be remiss if I didn’t note that eDiscovery Daily is one of those resources – in the nearly 11 month history of this blog, we have published 43 case law posts to date.  More to come, I’m sure… 😉

So, what do you think? Do you have a game plan for “getting” eDiscovery?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Standards: How Does an Industry Get Them?
 

As discussed yesterday, there is a nascent, but growing, movement pushing for industry standards in eDiscovery. That’s something many litigators may chafe at, thinking that standards and industry benchmarks impose checklists or management processes that tell them how to do their job. But industry standards, when implemented well, provide not only a common standard of care, but can help provide a point of comparison to help drive buying decisions.

It’s probably understandable that many of the calls for standards today focus on the search process. Judge Shira Scheindlin wrote in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC that a party’s “failure to assess the accuracy and validity of selected search terms” was tantamount to negligence.  As mentioned yesterday, the Text Retrieval Conference TREC Legal Track has been benchmarking different search strategies, even finding ways to optimize the search process. The ultimate goal is to provide baseline standards and guidelines to allow parties to determine if they are being successful in searching electronically stored information in litigation.

Within these technical discussions a new emerging thread is a call for ethical standards and codes of conduct. Jason Baron, National Archives' Director of Litigation and one of the coordinators of the TREC Legal Track, organized the SIRE workshop that concluded last week, focused on information retrieval issues in large data sets. However, even he, who has been working on optimizing search technology, recognizes the need for standards of care and ethics in eDiscovery to manage the human element. In a paper released earlier this year, he noted, “While there are no reported cases discussing the matter of ‘keyword search ethics,’ it is only a matter of time before courts are faced with deciding difficult issues regarding the duty of responding parties and their counsel to make adequate disclosures.”

The leading provider of industry standards is the Electronic Discovery Resource Model (EDRM), which has a number of projects and efforts underway to create common frameworks and standards for managing eDiscovery. Many of the EDRM’s ongoing projects are aimed at creating a framework, and not standards. In addition to the EDRM Framework familiar to many eDiscovery professionals, the group has produced an EDRM Model Code of Conduct Project to issue aspiring eDiscovery ethics guidelines and is working on a model Search Project.

But biggest piece of the discussion is how to create benchmarks and standards for repeatable, defensible, and consistent business processes through the entire eDiscovery process. There are no current quality standards for eDiscovery, but there are several models that could be adopted. For example, the ISO 9000 quality management system defines industry-specific quality standards and could be tailored to eDiscovery. The Capability Maturity Model Integration (CMMI) in software engineering follows a similar model, but unlike ISO, does not require annual updates for certification.

This is still a nascent movement, characterized more by workshops and panel discussions than by actual standards efforts. Recent events include EDRM 2011-2012 Kickoff Meeting, St Paul, MN, May 11-12, ICAIL 2011 DESI IV Workshop, Pittsburgh, PA, June 6, TREC Legal Track, Gaithersburg, MD, November, and the SIRE workshop at the Special Interest Group on Information Retrieval (SIGIR) SIGIR 2011 on July 28.

There seems to be a growing consensus that industry standards are not just useful, but likely necessary in eDiscovery. The Sedona Commentary on Achieving Quality in eDiscovery Principle 3 says, “Implementing a well thought out e-discovery process should seek to enhance the overall quality of the production in the form of: (a) reducing the time from request to response; (b) reducing cost; and (c) improving the accuracy and completeness of responses to requests.”

The question now seems to be, what type of standards need to be in place and who is going to craft them. So, what do you think?  Please share any comments you might have or if you'd like to know more about a particular topic.

Editor's Note: Welcome Jason Krause as a guest author to eDiscovery Daily blog!  Jason is a freelance writer in Madison, Wisconsin. He has written about technology and the law for more than a dozen years, and has been writing about EDD issues since the first Zubulake decisions. Jason began his career in Silicon Valley, writing about technology for The Industry Standard, and later served as the technology reporter for the ABA Journal. He can be reached at jasonkrause@hotmail.com.

eDiscovery Standards: Does the Industry Need Them?
 

eDiscovery Daily recently ran a three part series analyzing eDiscovery cost budgeting. Cost has long been a driving force in eDiscovery decision-making, but it is just one dimension in choosing EDD services. Other industries have well-established standards for quality – think of the automotive or software industries, which have standard measures for defects or bugs. This year there has been a rising call for developing industry standards in eDiscovery to provide quality measures.

There is a belief that eDiscovery is becoming more routine and predictable, which means standards of service can be established. But is eDiscovery really like manufacturing? Can you assess the level of service in EDD in terms of number of defects? Quality is certainly a worthy aim – government agencies have shifted away from cost being the single biggest justification for contract award, more heavily weighting quality of service in such decisions.  The question is how to measure quality in EDD.

Quality standards that offer some type of objective measures could theoretically provide another basis for decision-making in addition to cost. Various attempts have been made at creating industry standards over the years, very little has yet been standardized. The recent DESI (Discovery of Electronically Stored Information) IV workshop at the International Conference on Artificial Intelligence and Law in June investigated possible standards. In the background to the conference, organizers bemoaned that “there is no widely agreed-upon set of standards or best practices for how to conduct a reasonable eDiscovery search for relevant evidence.” 

Detractors say standards are just hoops for vendors to jump through or a checkbox to check that don’t do much to differentiate one company from another. However, proponents believe industry standards could define issues like document defensibility, defining output, or how to go about finding responsive documents in a reasonable way, issues that can explode if not managed properly.

The Sedona Conference, Electronic Discovery Reference Model (EDRM), and Text Retrieval Conference (TREC) Legal Track all have efforts of one kind or another to establish standards for eDiscovery. EDRM provides a model for eDiscovery and standards of production. It has also led an effort to create a standard, generally accepted XML model to allow vendors and systems to more easily share electronically stored information (ESI). However, that applies to software vendors, and really doesn’t help the actual work of eDiscovery.

The Sedona Commentary on Achieving Quality in eDiscovery calls for development of standards and best practices in processing electronic evidence. Some of the standards being considered for broad industry standards are the ISO 9000 standard, which provides industry-specific frameworks for certifying organizations or the Capability Maturity Model Integration (CMMI), centered around improving processes.

The Association for Information Management Professionals (ARMA) is pushing its Generally Accepted Record-keeping Principles (GARP) framework to provide best practices for information management in the eDiscovery context. This article from ARMA is dismissive of information governance efforts such as the EDRM, which it says provides a framework for eDiscovery projects, but “falls short of describing standards or best practices that can be applied to the complex issues surrounding the creation, management, and governance of electronic information.”

Meanwhile, there are efforts underway to standardize pieces of the eDiscovery process. Law.com says that billing code standards are in the works to help clients understand what they are buying when they sign a contract for eDiscovery services.

Perhaps the most interesting and important effort is the TREC Legal Track, which began as government research project into improving search results. The project garnered a fair amount of attention when it discovered that keyword searching was as effective as or better than many advanced concept searches and other technology that was becoming popular in the industry. Since that time, researchers have been trying to develop objective criteria for comparing methods for searching large collections of documents in civil litigation.

As of today, these efforts are largely unrelated, disjointed, or even dismissive of competing efforts. In my next post, I’ll dig into specific efforts to see if any make sense for the industry. So, what do you think? Are standards needed, or is it just a lot of wheel spinning? Please share any comments you might have or if you'd like to know more about a particular topic.

Editor's Note: Welcome Jason Krause as a guest author to eDiscovery Daily blog!  Jason is a freelance writer in Madison, Wisconsin. He has written about technology and the law for more than a dozen years, and has been writing about EDD issues since the first Zubulake decisions. Jason began his career in Silicon Valley, writing about technology for The Industry Standard, and later served as the technology reporter for the ABA Journal. He can be reached at jasonkrause@hotmail.com.

eDiscovery Case Law: Bankruptcy Court Denies Foreign Access to Debtor's Emails

A Southern District of New York United States Bankruptcy Court denied access to a debtor’s emails on July 22, in a foreign request involving international eDiscovery.

In re Toft, No. 11-11049 (ALG), 2011 WL 3023544 (Bankr. S.D.N.Y. July 22, 2011), the U.S. Bankruptcy Court determined that to permit a relief request from a German insolvency administrator would directly contravene the “fundamental principles” of U.S. public policy by undermining the right to privacy in electronic communications and the right of parties involved in any court order to receive notice of such proceedings and of their involvement.

  • Dr. Martin Prager, in his role as authorized insolvency administrator in a German bankruptcy proceeding, sought permission to access the mail and electronic correspondence of Dr. Jurgen Toft. Although the majority of such correspondence was located under European purview, two of the email accounts belonging to the debtor were found to be stored on servers owned by U.S. Internet Service Providers (“ISPs”).
  • The Munich District Insolvency Court had previously approved a Mail Interception Order, which had been granted recognition by the English High Court of Justice before being brought before the United States Bankruptcy Court.
  • Prager sought a U.S. court order that would grant comity to his German Mail Interception Order and compel the two American ISPs to provide him with “all of the Debtor’s e-mails currently stored on their servers and to deliver to Prager copies of all e-mails received by the Debtor in future,” without notice being provided to the debtor by either the court or the ISPs.
  • Despite the approval of the English High Court of Justice, the US Bankruptcy Court found that it could not grant relief to Prager’s request. The court determined that to grant access to emails as requested by Prager would be “banned under U.S. law, and it would seemingly result in criminal liability under the Wiretap Act and the Privacy Act for those who carried it out.”
  • In addition, the court observed that providing permission for access to emails without informing the debtor would also be contrary to U.S. law, which requires that all parties involved in any court order must receive notice.
  • As a result, the court concluded that the relief request was impossible to grant without running “manifestly contrary” to U.S. law and public policy, and did not honor Prager’s request.

So, what do you think? Was the court’s rejection of Prager’s request the only answer, or were there other routes that could have been taken in dealing with this international eDiscovery request? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Cloud Covered by Ball
 

What is the cloud, why is it becoming so popular and why is it important to eDiscovery? These are the questions being addressed—and very ably answered—in the recent article Cloud Cover (via Law Technology News) by computer forensics and eDiscovery expert Craig Ball, a previous thought leader interviewee on this blog.

Ball believes that the fears about cloud data security are easily dismissed when considering that “neither local storage nor on-premises data centers have proved immune to failure and breach”. And as far as the cloud's importance to the law and to eDiscovery, he says, "the cloud is re-inventing electronic data discovery in marvelous new ways while most lawyers are still grappling with the old."

What kinds of marvelous new ways, and what do they mean for the future of eDiscovery?

What is the Cloud?

First we have to understand just what the cloud is.  The cloud is more than just the Internet, although it's that, too. In fact, what we call "the cloud" is made up of three on-demand services:

  • Software as a Service (SaaS) covers web-based software that performs tasks you once carried out on your computer's own hard drive, without requiring you to perform your own backups or updates. If you check your email virtually on Hotmail or Gmail or run a Google calendar, you're using SaaS.
  • Platform as a Service (PaaS) happens when companies or individuals rent virtual machines (VMs) to test software applications or to run processes that take up too much hard drive space to run on real machines.
  • Infrastructure as a Service (IaaS) encompasses the use and configuration of virtual machines or hard drive space in whatever manner you need to store, sort, or operate your electronic information.

These three models combine to make up the cloud, a virtual space where electronic storage and processing is faster, easier and more affordable.

How the Cloud Will Change eDiscovery

One reason that processing is faster is through distributed processing, which Ball calls “going wide”.  Here’s his analogy:

“Remember that scene in The Matrix where Neo and Trinity arm themselves from gun racks that appear out of nowhere? That's what it's like to go wide in the cloud. Cloud computing makes it possible to conjure up hundreds of virtual machines and make short work of complex computing tasks. Need a supercomputer-like array of VMs for a day? No problem. When the grunt work's done, those VMs pop like soap bubbles, and usage fees cease. There's no capital expenditure, no amortization, no idle capacity. Want to try the latest concept search tool? There's nothing to buy! Just throw the tool up on a VM and point it at the data.”

Because the cloud is entirely virtual, operating on servers whose locations are unknown and mostly irrelevant, it throws the rules for eDiscovery right out the metaphorical window.

Ball also believes that everything changes once discoverable information goes into the cloud. "Bringing ESI beneath one big tent narrows the gap between retention policy and practice and fosters compatible forms of ESI across web-enabled applications".

"Moving ESI to the cloud," Ball adds, "also spells an end to computer forensics." Where there are no hard drives, there can be no artifacts of deleted information—so, deleted really means deleted.

What's more, “[c]loud computing makes collection unnecessary”. Where discovery requires that information be collected to guarantee its preservation, putting a hold on ESI located in the cloud will safely keep any users from destroying it. And because cloud computing allows for faster processing than can be accomplished on a regular hard drive, the search for discovery documents will move to where they're located, in the cloud. Not only will this approach be easier, it will also save money.

Ball concludes his analysis with the statement, "That e-discovery will live primarily in the cloud isn't a question of whether but when."

So, what do you think? Is cloud computing the future of eDiscovery? Is that future already here? Please share any comments you might have or if you'd like to know more about a particular topic.