Cloud Computing and Electronic Discovery

CHAPTER 7 The Control Concept and Related Issues

Matthew P. Breuer and James P. Martin

A considerable amount of litigation has been spent on cloud computing-related issues as more and more companies have migrated their electronic communications and data storage to cloud-based solutions. In a cloud computing model, data storage and processing is performed by a third party service provider; production of data held by a third party provider is restricted by the Stored Communications Act (SCA). According to the SCA, one allowable avenue for production is to obtain the permission of the entity that controls the account to produce the data, however, the identity of the person or entity with that control is not always clear. To attempt to access data stored in the cloud, litigants have filed countless motions against companies and individuals to compel disclosure or force a party to consent to the production of what are perceived to be key documents. The basis for these arguments is usually centered on constitutional issues, a procedural aspect, or an overbroad subpoena. This has caused one of the major issues with cloud computing in civil litigation to be overlooked, which has been the question of who has control of sought after documents? In other words, ample litigation has taken place because parties cannot determine the correct individual or entity to subpoena when seeking production of sought after electronic communications.

The Application of Rule 34(a)

Courts have consistently ...