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.

Preface xi Acknowledgments xiii Section One—Cloud Computing: Basics of Technologies and Applications 1 Chapter 1 Cloud Computing Definitions and Technical Considerations 3Christopher 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 17James 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 29James 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 39James 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 55James 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 75James P. Martin Points for Improvement 76 Congressional Action 77 Notes 78 Chapter 7 The Control Concept and Related Issues 79Matthew 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 91James 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 105Sarah 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 133Matthew 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 155Matthew 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 171Matthew 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

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.