Whitepaper: Electronic Discovery (Ediscovery) and The Data Center Dilemma

Whitepaper: Electronic Discovery (eDiscovery) and the Data Center Dilemma.
Author: Eric Everson, MBA, MSIT-SE
2012
Whitepaper: Electronic Discovery (eDiscovery) and the Data Center Dilemma. Author: Eric Everson, MBA, MSIT-SE
2012
**No views or opinions in this paper should be considered legal advice. See About the Author.
Table of Contents Abstract Introduction to Global Data Centers Introduction to Electronic Discovery (E-Discovery) Electronic Discovery and the Data Center Dilemma Conclusion About the Author Table of Resources
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Abstract Regularly throughout history technology outpaces the legal frameworks within which we live. Today, such a fundamental disparity has arisen as Global Data Centers (GDC) facilitates data to be electronically stored anywhere in the world. For electronic discovery (E-Discovery) litigators, this imposes new hurdles wherein data is being stored (or otherwise hidden) beyond the traditional reach of state jurisdiction. This paper is intended as a brief overview of a highly complex problem facing the legal frameworks of the global economy, but more importantly as a framework for kicking off the global discussion of evolving the practice of E-Discovery. This paper introduces the concept of Global Data Centers and E-Discovery in a manner consistent with bringing the law and technology to a meeting place. Moreover, this issue is not domestically isolated, but is one that confronts the global legal frameworks both today and into the future. Introduction to Global Data Centers Somehow the term cloud computing has been grafted into household terminology, yet many people have but the faintest idea of what it really entails. As is defined by the National Institute of Standards and Technology, Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. (Mell & Grance, 2011) For the sake of simplicity, cloud
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computing is the resource we use to save information online. One of the key strategic points of could computing is that it allows users to access their data from anywhere in the world. Interestingly enough, the infrastructure behind cloud computing are Global Data Centers. Global Data Centers (GDC) are a collection of server sites positioned strategically throughout the world to maximize data accessibility while mitigating the risk of data loss. Consider that Google for example has GDCs in many countries throughout the world, some of which include: Hamina, Finland, St Ghislain, Belgium, Hong Kong, Singapore, and many remote sites throughout the United States. (Google, 2012) GDCs are a keystone to todays internet. While Google is rather open with their GDC locations, there are thousands of GDCs positioned all over the world that are not so publicly shared. The novelty of GDCs are their ability to put data at our fingertips regardless of where in the world we are retrieving the information from. Additionally a catastrophic natural disaster that might threaten data centers in one part of the world, will not threaten ones data on a properly implemented GDC infrastructure. As a recent article by analyst Jim Latimer highlights, Today, largely because of remote access capabilities, data centers can be built anywhere in the world and be accessible from anywhere there is an Internet connection. (Latimer, 2011) Features common in todays GDCs are inter-datacenter replication and geo-redundancy. These features allow data to be mirrored from one data center to the next and respectively to spread the storage of data across multiple data centers within a GDC infrastructure. In short, even if a
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natural disaster destroys one data center, the data itself exists in many other places, so nothing is ever lost. GDCs are becoming increasingly popular as a low cost data storage alternative within the commercial markets. Cloud computing services that deploy GDC infrastructures often take advantage of lower cost markets while delivering unprecedented data storage efficiencies and value. Increasingly, given the efficiency of todays GDCs companies are moving away from in-house data storage and are increasingly migrating their stored data into the cloud.
Introduction to Electronic Discovery (E-Discovery) What is electronic discovery? According to PC Magazine, electronic discovery (E-Discovery) is, Relevant evidence in a court case that resides in electronic form. It includes all types of electronic files, including Web pages, e-mail correspondence, as well as database, word processing and spreadsheet files. (PCMag.com, 2012) While this is a great working definition, it should be expanded to include the notion that any electronic medium is subject to discovery. Ideally, if it is digital, then it should be discoverable. Unfortunately, like most issues of law, discovery of digital information is not so black and white. The very first issue to overcome is the pretrial hurdle of jurisdiction. Following Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc, For a district court to assert personal jurisdiction over a nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be authorized under the state's long-arm statute; and (2)
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the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment. Notice that the first element requires authorization under a states long-arm statute. The Supreme Court of Florida determined the long-arm to require that, material posted on the website must not only be accessible in Florida, but also be accessed in Florida (39 So.3d 1201 (Fla. 2010)) Let us suppose you are attempting to obtain discovery regarding a matter where information is stored transnational on a server in a foreign country for example. Of course, if the server was located within 100-miles of the United States, a bulge argument could be made to establish jurisdiction, but in all reality not many Global Data Centers (GDC) reside so close to the border, in fact most GDCs are in very remote, risk minimized locales. How can you get to information that could win your case when the information is effectively scattered on servers throughout the world? This question remains an unresolved issue of law and remunerates the crux of this paper. This is just one issue that e-discovery attorneys wrestle with in the global context of transnational litigation, but it highlights the evolutionary importance of this area of practice in an increasingly globalized economy. Much of the practice of e-discovery is concerned with spoilation. Spoilation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. (220 F.R.D. 212 (2003)) Spoilation was an issue seemingly resolved by the United States Supreme Court in Zubulake v. UBS Warburg, LLC, however since this case was decided in 2003, many state courts have not followed the opinion on grounds of state law distinction.
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As it stands, e-discovery is a very young practice area of law and faces significant hurdles both domestically and especially upon encountering issues in a globalized legal framework. It is a practice area that demands incredible tech savvy in practicing attorneys and is likewise an area where much remains unsettled. Ediscovery is very analogous to the yesteryears of Americas Wild West as an untamed frontier. So, perhaps the better question is, can you even get to information when it is effectively scattered throughout the world?
Electronic Discovery and the Data Center Dilemma Can you even get to information when it is effectively scattered throughout the world? This is the root of a growing body of e-discovery work product as litigators navigate new terrain in a globalized economy. In the unfortunate situation that gives rise to litigation, obtaining discoverable data becomes complicated by a legal framework that has been out paced by technology. Much of case law today rests on the notion of obtaining jurisdiction on the basis of where the physical server is located. Some states have taken a progressive step forward with regard to extending their long-arm statutes to comprise an analysis of accessibility, yet for an increasing number of electronic discovery cases, this evolution does little to establish jurisdiction over data that may be summarily residing on a remote server in a country like Singapore for example. Consider that Company A has an internal report that they have saved to the cloud (a storage service which they are provided by a third party cloud-based storage company that employs a global datacenter infrastructure with sites all over the world)
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and this report Company B believes to be the smoking gun they need for their case. It is unlikely that Company B has accessed this report from its home state, thus rendering even the most progressive long-arm statutes impotent. This is just one of a million similar scenarios wherein the very technology that renders GDCs efficient stifles the modern litigator. Sure, some of this can be resolved by traditional principles of international business transactions law, but as can be imagined, not every data storage site is located within a reciprocal legal municipality. Technology wherein datacenters spread the storage of data across multiple data centers within a GDC infrastructure are becoming common place, yet such technology out paces the law in most countries. There is yet to be a uniform global long-arm statute and undoubtedly the legal community is correct to safeguard against such an institution. At best, we are in the uncharted waters of the new frontier of e-discovery. This certainly explains the importance of the binding arbitration clause in a modern commercial contract, but it further signifies the complexities of law-meets-technology. Litigators are increasingly being held to a higher standard of technology competence and yet advances in technology at times even outpace the most recognized publishers of high tech academia. Datacenters are increasingly being deployed all over the world for a variety of reasons. Cost is not the only driver for locating a server site in a remote global destination, in fact it is at times a lesser factor. Consider Google again, why have they chosen some of their GDC sites? A review of Googles datacenter strategy evokes something far more compelling than a cost analysis, but in fact Googles secure data centers are some of the most energy efficient
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in the world. Additionally, Googles innovations have allowed them to develop and operate data centers that use half the energy of a typical data center. (Google, 2012) Some of this innovation is driven by their global positioning of their datacenters. A common theme for example is that most of their datacenters are removed from the Torrid Zone between the Tropic of Cancer and the Tropic of Capricorn. Such GDC placement naturally stems from the reality that keeping the equipment cool in a data center is where the bulk of the energy is therein consumed. As computers move from an application environment centralized on hard disc to one where cloud-based apps become supreme, the cloud will continue to flourish. This growth and evolution of technologic efficiency will therefore continue to outpace the law respectively. The harsh reality in todays legal system is that there may be times when the law itself may prevent the discovery of certain remote storage data. It is up to tech savvy litigators to continually push forward amidst the shifting environment of innovative technologies to identify analogous and persuasive avenues of discovery, such that will propel e-discovery forward. Conclusion Litigators are faced with the ever-present reality that technology has changed the game again by introducing a transient quality to data storage. GDCs (Global Data Centers) were never at the helm of the law makers mind, yet it is a reality that litigators are beginning to encounter with increased frequency. Today, data can be physically stored anywhere in the world and yet can be accessible in the same manner; this
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complexity challenges the basic notions of jurisdiction within the existing legal frameworks. Technology inherently challenges the norms of the legal system; here globally stored data within GDCs is no different. One resolve for judicial consideration of such data is to rely on a quasi-Florida long arm approach wherein the Point of Access is a determining factor for laying jurisdiction over data that might otherwise be physically stored anywhere in the world. Under such a model, even if data is stored beyond the traditional reach of a states jurisdiction, the mere fact that it is accessible from the jurisdiction would allow the judicial system to progressively move forward. Likewise, legislators may consider heightened standards on electronic data retention (e-Retention) that supports a progressive move toward embracing the technological advances underway with regard to remote data storage. Naturally the legislative timeline cannot keep pace with the evolution of technology, however, the long term reality is that electronically stored data is a here to stay and legislators must keep this in mind in addressing this matter. Finally, the demands of the global legal environment require a heightened level of skill and sharpened acuity when handling matters of eDiscovery that may have a broader impact on the practicing community. Of course litigators should advocate first for their clients, but as each case is decided today, we are normalizing the future of litigation in this key area. Ideally, if it is digital, then it should be discoverable.
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About the Author: Eric Everson, MBA, MSIT-SE: Eric Everson is currently a law student at Florida A&M University College of Law in Orlando, Florida. Prior to attending law school, he earned an MBA and Masters of Science degree in Software Engineering. Professionally, he has spent ten years working in the telecommunications industry and was the co-founder of MyMobiSafe, LLC (a boutique mobile security software company). Eric is well versed in business and technology and looks forward to carrying this comfort into the practice of law. As a law student, Eric asserts that no information or opinions expressed in this paper should be treated as legal advice.
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Table of Resources: Google. (2012, January). Locations: Google Data Centers. Retrieved January 30, 2012, from Data Center Locations : http://www.google.com/about/datacenters/locations/index.html# Latimer, J. (2011, December). Top 5 places to build a new data center. Retrieved January 30, 2012, from GigaOM: http://gigaom.com/cloud/latimer-where-to-build-datacenter/ Mell, P., & Grance, T. (2011). The NIST Definition of Cloud Computing. Gaithersburg, Maryland: United States Department of Commerce, Computer Security Division, National Institute of Standards and Technology. PCMag.com. (2012). PC Magazine Encyclopedia. Retrieved January 17, 2012, from EDiscovery Definition from PC Magazine Encyclopedia: http://www.pcmag.com/encyclopedia_term/0,2542,t=e-discovery&i=58505,00.asp

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Whitepaper: Electronic Discovery (eDiscovery) and the Data Center Dilemma.

Author: Eric Everson, MBA, MSIT-SE

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