United States: Electronic Discovery & Information Governance - Tip of the Month: Ensuring that Cloud-Based ESI is Properly Stored and Accessible


A large corporation has received notice of a purported contractual breach of a nationwide distribution agreement. The facts central to this dispute will be reflected in emails, documents and other forms of electronically stored information (ESI) generated across offices. The corporation had previously retained a third-party vendor to provide a cloud-based solution to manage and maintain its ESI. As a result of that, the corporation's general counsel expects that much of the data relevant to this dispute is stored "in the cloud" rather than in any office.

Cloud Computing Storage of ESI

Cloud computing consists of computing resources—hardware and software—that are made available for use over the Internet by a service provider, typically on a subscription basis. More and more, companies are using cloud computing to reduce IT-related costs and to make data more readily available throughout the company.

To stay current with the latest technology, minimize their own support costs and attract the widest customer base possible, cloud service providers often build their platforms on standardized products that offer little or no customization. As a result, there is often limited flexibility with regard to how ESI can be retrieved from a cloud service provider once that data has been uploaded.

Cloud-Based Discovery Need Not Be Stormy

Although "the cloud" has changed the way corporations (and individuals) maintain ESI, it has not changed a corporation's obligation to preserve, collect and produce ESI in the event of litigation. Nevertheless, given that data stored in the cloud is typically maintained off-site by a third-party vendor, satisfying these obligations can be a challenge. This challenge is then frequently exacerbated by the lack of uniform standards by which cloud computing service providers address electronic discovery considerations and the fact that these service providers are sometimes unfamiliar with electronic discovery practice altogether. 

Nonetheless, a company can effectively manage e-discovery obligations while maintaining its data on the cloud. Planning and communication are the keys to success. More specifically, when a company has reason to believe that its preservation or discovery obligations have been triggered, it should, among other things:

  • Determine on which cloud(s) the data is stored. It is not uncommon for companies to rely on multiple cloud service providers to store company data. For instance, one service provider may host the company's software applications and the related data while another hosts the company's email platform. Thus, a good first step is to consult with the company's IT department with the goal of creating a comprehensive list of the company's cloud service providers and the types of data they store.
  • Determine how relevant ESI within the cloud can be identified. After determining where the company's data is stored, the next step is to identify what ESI should be extracted from the cloud. Applying targeted keyword searches to a company's ESI can narrow the scope and cost of a company's document collection, review and production. However, performing keyword searches in the cloud can be a challenge. Some cloud service providers give users direct access the stored data, while others may only permit access through a proprietary user interface that offers limited interaction with the data. While some providers can apply powerful forensic applications to the data they store, others maintain data in a way that limits or prohibits keyword searching. Consider working with your cloud service provider(s) to identify the various options available to assist with the identification of relevant ESI stored within the cloud.
  • Determine how the ESI will be retrieved from the cloud. Once the relevant ESI has been identified, it must be extracted. Cloud computing service providers vary in their ability to export data. On one end of the spectrum are providers that allow their users to rapidly download data in bulk. On the other are those providers that are only able to export files one at a time. Where the company's cloud provider falls within this spectrum may determine whether discovery deadlines can be met. What is more, there are cloud service providers that can only export files using certain formats (such as PDF) even if the file was not originally created in that format. It may be necessary to consider a work-around if the company's e-discovery obligations require that files be produced in their native format. For these reasons, companies need to consult with their cloud service providers to understand how they can, and cannot, export responsive ESI, preferably before committing to discovery deadlines and obligations.
  • Determine whether the ESI's metadata has become "cloudy." Sometimes, compliance with e-discovery obligations requires that ESI be collected and produced in a manner that preserves the integrity of its metadata. Doing so is not always straightforward when retrieving data from the cloud. Some cloud computing service providers separate files from their metadata when storing data. Where this is the case, retrieving a file and its metadata requires two separate downloads: first the file, then its metadata. In addition, some providers store or export data in a manner that may not accurately preserve the dates associated with the file, such as replacing a file's creation date with the date that file was imported/uploaded or exported/downloaded. If the preservation of metadata is important in your e-discovery plan, be sure to learn whether your company's cloud service provider stores data in a manner that impacts a file's metadata.
  • Determine if the cloud should be put on hold. Parties that anticipate litigation typically must take steps to ensure the preservation of documents reasonably related to the subject of the litigation. This is commonly referred to as a "litigation hold." Meeting this obligation can be complicated when the relevant data is stored in the cloud. Data retention and destruction policies vary widely between service providers. Thus, when relevant ESI may be stored in the cloud, companies should consider making their cloud service providers aware of any litigation hold. Further, it may be necessary to reach out to your cloud service providers to determine whether any additional steps may be needed to preserve the data they store.


Currently, there is no uniform standard or approach that all cloud service providers use to support e-discovery. Every service provider is different. As a result, by engaging in a proactive dialogue with the third-party service providers maintaining the company's data in the cloud, a corporation can seek to ensure that it meets its discovery obligations while still enjoying the benefits provided by cloud computing.

Learn more about Mayer Brown's Electronic Discovery & Information Governance practice.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2015. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.