Cloud Computing and Electronic Discovery

The definitive guide to the legal implications of electronic discovery in the cloud Cloud Computing and Electronic Discovery and its companion website is a comprehensive resource that covers the most important information and contains illustrative examples needed to understand the rapidly evolving realm of eDiscovery in cloud computing environments. The rules and legal precedents of the computing and legal frontier of electronic discovery are being developed almost as quickly as the technology is changing. Written for fraud investigators, legal professionals, forensic accountants, and business executives, the book offers an understanding of the ramifications of storing data with third–party providers and shows how such storage mechanisms relate to the limits of discovery practices. This up–to–date resource also includes a discussion of the existing legal precedents and current cases that are shaping interpretation of discovery laws in the cloud. The authors offer a compelling 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. In non–technical language, the book offers an insightful overview of current trends in cloud computing and includes practical guidance for the information that should be considered in an investigation that involves data held by a cloud service provider. The authors also offer the latest updates on the current and proposed laws governing discovery of information held by a third–party cloud service provider. With Cloud Computing and Electronic Discovery , business, accounting, and legal professionals have an invaluable resource for understanding the evolution of cloud eDiscovery policies, practices, and laws.

PREFACE xi ACKNOWLEDGMENTS xiii SECTION ONE—Cloud Computing: Basics of Technologies and Applications 1 CHAPTER 1 Cloud Computing Defi nitions 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 .