Cloud computing — Safe Enough for E-discovery?

A new Microsoft division (ominously named “Danger”) just lost all of the data for T-Mobile’s popular Sidekick phone. And by “all of the data,” I mean all of the data — contacts, messages, content, all of it. Apparently Microsoft forgot to make a backup, and an “upgrade” toasted the working copy.

As unbelievable as it is that 30 some years into the PC revolution, Microsoft failed to backup, it should give lawyers a quick pause: is my data in the cloud safe?

When clients trust attorneys with physical documents, they have duties to keep them safe. Much the same duties would seem to apply to data — even if the attorney relies on vendors to assist in its storage.

No one can guard against every disaster, but the Microsoft/Sidekick goof seems perfectly avoidable. Apparently, everyone thought it was someone else’s job to make the backup.

As attorneys increasingly seek out “cloud” technology to spread the load and cost of storage, it’s worth making sure vendors have adequate backup plans. The problem is the same as it has always been, ensuring the integrity of client data. Data might not “live” on servers in your building anymore. But the responsibility for its safekeeping stays in your office. You can be sure the client will call you when it disappears.

Ironically, before this disaster, a common answer to “is the safe?” might be something like “we use the same technology as Amazon,” or “Google,” or “Microsoft.” Applied Discovery (a Lexis SaaS offering) recently trumpeted its use of Microsoft search technology. But as this fiasco makes clear, that’s not a particularly comforting answer anymore.

Ultimately, the client will want to know whether the attorney was reasonable in choosing the vendor — and saving a few cents per gig will look cheap, once it becomes clear that the low cost provider wasn’t making adequate backups.