Cloud Computing and Electronic Discovery

Explore the frontier of electronic discovery in the cloud

Cloud Computing and Electronic Discovery comprehensively covers the quickly-evolving realm of eDiscovery in cloud computing environments, a computing and legal frontier in which the rules and legal precedents are being developed anew seemingly by the day. The book delves into this fascinating and rapidly-developing topic to prepare fraud investigators, legal professionals, forensic accountants, and executives understand the ramifications of storing data with third party providers and how such storage mechanisms relate to the limits of discovery practices.

This up-to-date resource also includes a complete discussion of the few existing legal precedents and current cases that are shaping interpretation of discovery laws in the cloud space, a perfect overview for executives storing their companies' data in the cloud and the legal professionals tasked with understanding and interpreting the discovery rules surrounding that data. The book is comprehensive in scope and includes:

• An overview of current trends in cloud computing, including potential information that should be considered in an investigation that involves data held by a cloud service provider
• Updates on current and proposed laws governing discovery of information held by a third party cloud service provider
• Updates on legal cases that address the issues of the Electronic Communication Privacy Act, the Federal law prohibiting release of information by a third party provider
• Practical guidance on how to consider the availability of cloud data relevant to an investigation, and how to include this data in discovery plans

For business, accounting, and legal professionals, Cloud Computing and Electronic Discovery is an invaluable resource for understanding the nuanced development of cloud eDiscovery policies, practices, and law as they continue to unfold and develop.

Preface xi

Acknowledgments xiii

Section One—Cloud Computing: Basics of Technologies and Applications 1

Chapter 1 Cloud Computing Definitions and Technical Considerations 3
Christopher Thieda

IaaS 5

PaaS 9

SaaS 10

Considerations for Discovery 10

Data Transfer Regulations 12

Notes 15

Chapter 2 The Proliferation of Data Available for Discovery 17
James P. Martin and Harry Cendrowski

An Example of Third‐Party Data: Google Search Engine 19

Consideration of Data Points in Discovery 21

Creating an eDiscovery Plan in a Cloud‐Based World 25

Production of Cloud Data 27

Notes 28

Chapter 3 Cloud Migration and Planning for Retention 29
James P. Martin and Harry Cendrowski

Data Retention and the Cloud 29

Considerations for Litigation 34

Notes 36

Section Two—Current Laws Affecting Discovery 37

Chapter 4 Brief History of Privacy and Selected Electronic Surveillance Laws 39
James P. Martin and Harry Cendrowski

Communications Act of 1934 40

Title III—Omnibus Crime Control and Safe Streets Act, 1968 42

Advancements in Telephone System Technologies 45

Electronic Communications Privacy Act of 1986 47

Notes 53

Chapter 5 Electronic Communications Privacy Act 55
James P. Martin and Harry Cendrowski

Title II—The Stored Communications Act 57

§2703—Required Disclosure of Customer Communication or Records 61

Backup Provisions 66

Electronic Storage and the Ninth Circuit 66

Pen Registers and Trap and Trace Devices 68

Production Demands and the ECPA 71

Notes 73

Chapter 6 Proposed Legislative Changes and Future Laws 75
James P. Martin

Points for Improvement 76

Congressional Action 77

Notes 78

Chapter 7 The Control Concept and Related Issues 79
Matthew P. Breuer and James Martin

The Application of Rule 34(a) 79

Rule 34(a) in Litigation 81

Flagg—A Modern Day Approach 86

Notes 88

Chapter 8 Current Issues in Cloud Data 91
James P. Martin and Matthew P. Breuer

Cell Tower Data and Location Information 91

StingRay and Location Monitoring 97

BYOD Policies and Data Ownership 100

Notes 102

Chapter 9 The Rise of Social Media and Its Role in Litigation 105
Sarah Marmor and Deirdre Fox

Roots of Social Media 105

Why, How, and When to Access Data on Social Media in Litigation 106

Obligations to Preserve Evidence 107

Accessing Social Media 108

Using Social Media in Litigation 115

Notes 120

Section Three—Relevant Cases 131

Chapter 10 Modern Case Analysis Shaping Litigation 133
Matthew P. Breuer and James P. Martin

O’Grady v. Superior Court, 139 Cal.App.4th 1423 (2006) 133

Krinsky v. Doe 6, 72 Cal.Rptr.3d 231 (2008) 136

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich 2008) 138

Warshak v. U.S., 631 F.3d 266 (6th Circ. 2010) 143

Ehling v. Monmouth-Ocean Hospital, 872

F.Supp.2d 369 (D.N.J. 2012) 146

Juror Number One v. California, 206 Cal.App. 4th 854 (2012) 148

Summary of Cases 150

Notes 153

Chapter 11 Cloud Computing and Reasonable Expectations of Privacy: Fourth Amendment Concerns 155
Matthew P. Breuer and James P. Martin

Ex Parte Jackson, 96 U.S. 727 (1877) 156

Olmstead v. United States, 277 U.S. 438 (1928) 158

Katz v. United States, 88 S.Ct. 507 (1967) 159

United States v. Miller, 425 U.S. 435 (1976) 160

United States v. Jacobsen, 466 U.S. 109 (1984) 163

United States v. Jones, 132 S.Ct. 945 (2012) 165

Summary of Cases 166

Notes 169

Chapter 12 Compelled Production of Cloud Computing Data: Fifth Amendment Concerns 171
Matthew P. Breuer and James P. Martin

United States v. Doe, 465 U.S. 605 (1984) 172

Doe v. United States, 487 U.S. 201 (1988) 174

United States v. Hubbell, 530 U.S. 27 (2000) 176

In re Boucher, 2009 WL 424718 (D. Vt. 2009) 178

In re Grand Jury Subpoena Duces Tecum, March 25, 2011, 670 F.3d 1335 (11th Circ. 2011) 180

Notes 183

About the Contributors 185

About the Authors 187

About the Companion Website 189

Index 191

JAMES P. MARTIN, CMA, CIA, CFE, is Managing Director at Cendrowski Corporate Advisors.

HARRY CENDROWSKI, CPA, ABV, CGMA, CFF, CFE, CVA, CFD, MAFF, is President of Cendrowski Corporate Advisors and a frequent speaker on forensic accounting and litigation.

MARTIN and CENDROWSKI are the coauthors of the Handbook of Fraud Deterrence and Private Equity, Second Edition from Wiley and the coauthors of the industry newsletters The Fraud Files and Corporate Governance Edition.

Cloud Computing and Electronic Discovery offers an accessible resource that explores cloud computing technology’s impact on electronic discovery approaches in litigation and criminal investigations. The key issue from a legal perspective is that an investigator or litigant cannot simply access the data that is held by a third party in the cloud. Written by James P. Martin and Harry Cendrowski—experts in this emerging field—the book delves into this fascinating and rapidly-developing area of law to better prepare fraud investigators, legal professionals, forensic accountants, and executives with an understanding of the ramifications of storing data with third-party providers and how such storage mechanisms relate to the limits of discovery practices.

In non-technical language, the authors reveal how data is stored and (at a high level) the technical aspects of hosted solutions that can affect production of data. As the authors explain, discovery of data within a cloud computing solution falls under the restrictions of the Electronic Communications Privacy Act of 1986. Today, judges use this law to rule on cases involving data created and stored by devices that would have been considered as science fiction in the almost thirty years since the law was first written. The book also explores in detail the Stored Communications Act (which falls within the Electronic Communications Privacy Act) as well as the prior laws that protected technological communications of a bygone era.

Throughout the book, Martin and Cendrowski offer insights into legal concepts that shape current cases and the common themes of privacy issues. They also describe the limitations of the current laws in interpreting modern systems and devices. In addition, the book surveys many of the precedent-setting cases that involved interpretation of hosted data and access of that data by litigants or the government. Based on current trends and recent court cases, the book includes practical guidance on how to consider the availability of cloud data relevant to an investigation and how to include this data in discovery plans. The companion website includes the most recent updates to the laws covering cloud computing and electronic discovery.

For business, accounting, and legal professionals, Cloud Computing and Electronic Discovery is an invaluable resource for understanding the evolution of cloud eDiscovery policies, practices, and law as they continue to unfold and develop.

Cloud Computing and Electronic Discovery offers an accessible resource that explores cloud computing technology's impact on electronic discovery approaches in litigation and criminal investigations. The key issue from a legal perspective is that an investigator or litigant cannot simply access the data that is held by a third party in the cloud. Written by James P. Martin and Harry Cendrowski—experts in this emerging field—the book delves into this fascinating and rapidly-developing area of law to better prepare fraud investigators, legal professionals, forensic accountants, and executives with an understanding of the ramifications of storing data with third-party providers and how such storage mechanisms relate to the limits of discovery practices.

In non-technical language, the authors reveal how data is stored and (at a high level) the technical aspects of hosted solutions that can affect production of data. As the authors explain, discovery of data within a cloud computing solution falls under the restrictions of the Electronic Communications Privacy Act of 1986. Today, judges use this law to rule on cases involving data created and stored by devices that would have been considered as science fiction in the almost thirty years since the law was first written. The book also explores in detail the Stored Communications Act (which falls within the Electronic Communications Privacy Act) as well as the prior laws that protected technological communications of a bygone era.

Throughout the book, Martin and Cendrowski offer insights into legal concepts that shape current cases and the common themes of privacy issues. They also describe the limitations of the current laws in interpreting modern systems and devices. In addition, the book surveys many of the precedent-setting cases that involved interpretation of hosted data and access of that data by litigants or the government. Based on current trends and recent court cases, the book includes practical guidance on how to consider the availability of cloud data relevant to an investigation and how to include this data in discovery plans. The companion website includes the most recent updates to the laws covering cloud computing and electronic discovery.

For business, accounting, and legal professionals, Cloud Computing and Electronic Discovery is an invaluable resource for understanding the evolution of cloud eDiscovery policies, practices, and law as they continue to unfold and develop.