NCOIC Discusses e-Discovery and Cloud Computing

Last week during its weekly meeting, the NCOIC Cloud Computing Working Group (CCWG) examined some of the legal aspects surrounding electronically stored information. With government use of cloud computing expected to grow, the group reach out to Mr. Jason R. Baron, Director of Litigation for the United States National Archives and Records Administration for some guidance. Mr. Baron is an internationally recognized speaker and author on the preservation of electronic records.  In 2009 he was named Co-Chair of The Sedona Conference® Working Group on Electronic Document Retention and Production, and has previously served as Editor-in-Chief of The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (2007), and Co-Editor-in-Chief of The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process (2009).

In case you didn’t know, the US Federal Records Act requires the taking of appropriate preservation measures for all electronically stored information that falls within the federal record definition outlined in 44 USC 3301. With this in mind, potential federal records “in the cloud” could include:

• Google Docs
• Gmail
• Facebook, Twitter and YouTube postings
• Email and structured databases of all kinds hosted on private servers; and
• PDA text messages

Even the US Supreme Court has ruled on the matter, stating:

 “’Document retention policies,’ which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business * * * It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” –Arthur Andersen LLP v. U.S., 125 S. Ct. 2129 (May 31, 2005)

In order to dramatize the scope of this issue, Mr Baron collaborated with Mr. Ralph Losey in producing the following informative video.

For more on e-discovery, please visit e-Discovery Team at https://e-discoveryteam.com/ .

The National Archives also has a “Frequently Asked Questions About Managing Federal Records In Cloud Computing Environments” available (https://www.archives.gov/records-mgmt/faqs/cloud.html).

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