e-discovery 2.0

It’s already a few weeks into the new year and it’s easy to spot the big lines at the gym, folks working on fad diets and many swearing off any number of vices.  Sadly perhaps, most popular resolutions don’t even really change year after year.  In the corporate world, though, it’s not good enough to simply recycle resolutions every year since there’s a lot more at stake, often with employee’s bonuses and jobs hanging in the balance.

It’s not too late to make information governance part of the corporate 2012 resolution list.  The reason is pretty simple – most companies need to get out of the reactive firefighting of eDiscovery given the risks of sloppy work, inadvertent productions and looming sanctions.  Yet, so many are caught up in the fog of eDiscovery war that they’ve failed to see the nexus between the upstream, proactive good data management hygiene and the downstream eDiscovery chaos.

In many cases the root cause is the disconnect between differing functional groups (Legal, IT, Information Security, Records Management, etc.).  This is where the emerging umbrella concept of Information Governance comes to play, serving as a way to tackle these information risks along a unified front. Gartner defines information governanceas the:

“specification of decision rights, and an accountability framework to encourage desirable behavior in the valuation, creation, storage, use, archiving and deletion of information, … [including] the processes, roles, standards, and metrics that ensure the effective and efficient use of information to enable an organization to achieve its goals.”

Perhaps more simply put, what were once a number of distinct disciplines—records management, data privacy, information security and eDiscovery—are rapidly coming together in ways that are important to those concerned with mitigating and managing information risk. This new information governance landscape is comprised of a number of formerly discrete categories:

• Regulatory Risks – Whether an organization is in a heavily regulated vertical or not, there are a host of regulations that an organization must navigate to successfully stay in compliance.  In the United States these include a range of disparate regimes, including the Sarbanes-Oxley Act, HIPPA, the Securities and Exchange Act, the Foreign Corrupt Practices Act (FCPA) and other specialized regulations – any number of which require information to be kept in a prescribed fashion, for specified periods of time.  Failure to turn over information when requested by regulators can have dramatic financial consequences, as well as negative impacts to an organization’s reputation.

• Discovery Risks – Under the discovery realm there are any number of potential risks as a company moves along the EDRM spectrum (i.e., Identification, Preservation, Collection, Processing, Analysis, Review and Production), but the most lethal risk is typically associated with spoliation sanctions that arise from the failure to adequately preserve electronically stored information (ESI).  There have been literally hundreds of cases where both plaintiffs and defendants have been caught in the judicial crosshairs, resulting in penalties ranging from outright case dismissal to monetary sanctions in the millions of dollars, simply for failing to preserve data properly.  It is in this discovery arena that the failure to dispose of corporate information, where possible, rears its ugly head since the eDiscovery burden is commensurate with the amount of data that needs to be preserved, processed and reviewed.  Some statistics show that it can cost as much as $5 per document just to have an attorney privilege review performed.  And, with every gigabyte containing upwards of 75,000 pages, it is easy to see massive discovery liability when an organization has terabytes and even petabytes of extraneous data lying around.

• Privacy Risks – Even though the US has a relatively lax information privacy climate there are any number of laws that require companies to notify customers if their personally identifiable information (PII) such as credit card, social security, or credit numbers have been compromised.  For example, California’s data breach notification law (SB1386) mandates that all subject companies must provide notification if there is a security breach to the electronic database containing PII of any California resident.  It is easy to see how unmanaged PII can increase corporate risk, especially as data moves beyond US borders to the international stage where privacy regimes are much more staunch.

• Information Security Risks – Data breaches have become so commonplace that the loss/theft of intellectual property has become an issue for every company, small and large, both domestically and internationally.  The cost to businesses of unintentionally exposing corporate information climbed 7 percent last year to over $7 million per incident.  Recently senators asked the SEC to “issue guidance regarding disclosure of information security risk, including material network breaches” since “securities law obligates the disclosure of any material network breach, including breaches involving sensitive corporate information that could be used by an adversary to gain competitive advantage in the marketplace, affect corporate earnings, and potentially reduce market share.”  The senators cited a 2009 survey that concluded that 38% of Fortune 500 companies made a “significant oversight” by not mentioning data security exposures in their public filings.

Information governance as an umbrella concept helps organizations to create better alignment between functional groups as they attempt to solve these complex and interrelated data risk challenges.  This coordination is even more critical given the way that corporate data is proliferating and migrating beyond the firewall.  With even more data located in the cloud and on mobile devices a key mandate is managing data in all types of form factors. A great first step is to determine ownership of a consolidated information governance approach where the owner can:

• Get C-Level buy-in
• Have the organizational savvy to obtain budget
• Be able to define “reasonable” information governance efforts, which requires both legal and IT input
• Have strong leadership and consensus building skills, because all stakeholders need to be on the same page
• Understand the nuances of their business, since an overly rigid process will cause employees to work around the policies and procedures

Next, tap into and then leverage IT or information security budgets for archiving, compliance and storage.  In most progressive organizations there are likely ongoing projects that can be successfully massaged into a larger information governance play.  A great place to focus on initially is information archiving, since this one of the simplest steps an organization can take to improve their information governance hygiene.  With an archive organizations can systematically index, classify and retain information and thus establish a proactive approach to data management.  It’s this ability to apply retention and (most importantly) expiration policies that allows organizations to start reducing the upstream data deluge that will inevitably impact downstream eDiscovery processes.

Once an archive is in place, the next logical step is to couple a scalable, reactive eDiscovery process with the upstream data sources, which will axiomatically include email, but increasingly should encompass cloud content, social media, unstructured data, etc.  It is important to make sure  that a given  archive has been tested to ensure compatibility with the chosen eDiscovery application to guarantee that it can collect content at scale in the same manner used to collect from other data sources.  Overlaying both of these foundational pieces should be the ability to place content on legal hold, whether that content exists in the archive or not.

As we enter 2012, there is no doubt that information governance should be an element in building an enterprise’s information architecture.  And, different from fleeting weight loss resolutions, savvy organizations should vow to get ahead of the burgeoning categories of information risk by fully embracing their commitment to integrated information governance.  And yet, this resolution doesn’t need to encompass every possible element of information governance.  Instead, it’s best to put foundational pieces into place and then build the rest of the infrastructure in methodical and modular fashion.

The New Year has now dawned and with it, the certainty that 2012 will bring new developments to the world of eDiscovery.  Last month, we spotlighted some eDiscovery trends for 2012 that we feel certain will occur in the near term.  To understand how these trends will play out, it is instructive to review some of the top eDiscovery cases from 2011.  These decisions provide a roadmap of best practices that the courts promulgated last year.  They also spotlight the expectations that courts will likely have for organizations in 2012 and beyond.

Issuing a Timely and Comprehensive Litigation Hold

Case: E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011)

Summary: The court issued a stiff rebuke against defendant Kolon Industries for failing to issue a timely and proper litigation hold.  That rebuke came in the form of an instruction to the jury that Kolon executives and employees destroyed key evidence after the company’s preservation duty was triggered.  The jury responded by returning a stunning $919 million verdict for DuPont.

The spoliation at issue occurred when several Kolon executives and employees deleted thousands emails and other records relevant to DuPont’s trade secret claims.  The court laid the blame for this destruction on the company’s attorneys and executives, reasoning they could have prevented the spoliation through an effective litigation hold process.  At issue were three hold notices circulated to the key players and data sources.  The notices were all deficient in some manner.  They were either too limited in their distribution, ineffective since they were prepared in English for Korean-speaking employees, or too late to prevent or otherwise ameliorate the spoliation.

The Lessons for 2012: The DuPont case underscores the importance of issuing a timely and comprehensive litigation hold notice.  As DuPont teaches, organizations should identify what key players and data sources may have relevant information.  A comprehensive notice should then be prepared to communicate the precise hold instructions in an intelligible fashion.  Finally, the hold should be circulated immediately to prevent data loss.

Organizations should also consider deploying the latest technologies to help effectuate this process.  This includes an eDiscovery platform that enables automated legal hold acknowledgements.  Such technology will allow custodians to be promptly and properly apprised of litigation and thereby retain information that might otherwise have been discarded.

Another Must-Read Case: Haraburda v. Arcelor Mittal U.S.A., Inc. (D. Ind. June 28, 2011)

Suspending Document Retention Policies

Case: Viramontes v. U.S. Bancorp (N.D. Ill. Jan. 27, 2011)

Summary: The defendant bank defeated a sanctions motion because it modified aspects of its email retention policy once it was aware litigation was reasonably foreseeable.  The bank implemented a retention policy that kept emails for 90 days, after which the emails were overwritten and destroyed.  The bank also promulgated a course of action whereby the retention policy would be promptly suspended on the occurrence of litigation or other triggering event.  This way, the bank could establish the reasonableness of its policy in litigation.  Because the bank followed that procedure in good faith, it was protected from court sanctions under the Federal Rules of Civil Procedure 37(e) “safe harbor.”

The Lesson for 2012: As Viramontes shows, an organization can be prepared for eDiscovery disputes by timely suspending aspects of its document retention policies.  By modifying retention policies when so required, an organization can develop a defensible retention procedure and be protected from court sanctions under Rule 37(e).

Coupling those procedures with archiving software will only enhance an organization’s eDiscovery preparations.  Effective archiving software will have a litigation hold mechanism, which enables an organization to suspend automated retention rules.  This will better ensure that data subject to a preservation duty is actually retained.

Another Must-Read Case: Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011)

Managing the Document Collection Process

Case: Northington v. H & M International (N.D.Ill. Jan. 12, 2011)

Summary: The court issued an adverse inference jury instruction against a company that destroyed relevant emails and other data.  The spoliation occurred in large part because legal and IT were not involved in the collection process.  For example, counsel was not actively engaged in the critical steps of preservation, identification or collection of electronically stored information (ESI).  Nor was IT brought into the picture until 15 months after the preservation duty was triggered. By that time, rank and file employees – some of whom were accused by the plaintiff of harassment – stepped into this vacuum and conducted the collection process without meaningful oversight.  Predictably, key documents were never found and the court had little choice but to promise to inform the jury that the company destroyed evidence.

The Lesson for 2012: An organization does not have to suffer the same fate as the company in the Northington case.  It can take charge of its data during litigation through cooperative governance between legal and IT.  After issuing a timely and effective litigation hold, legal should typically involve IT in the collection process.  Legal should rely on IT to help identify all data sources – servers, systems and custodians – that likely contain relevant information.  IT will also be instrumental in preserving and collecting that data for subsequent review and analysis by legal.  By working together in a top-down fashion, organizations can better ensure that their eDiscovery process is defensible and not fatally flawed.

Another Must-Read Case: Green v. Blitz U.S.A., Inc. (E.D. Tex. Mar. 1, 2011)

Using Proportionality to Dictate the Scope of Permissible Discovery

Case: DCG Systems v. Checkpoint Technologies (N.D. Ca. Nov. 2, 2011)

The court adopted the new Model Order on E-Discovery in Patent Cases recently promulgated by the U.S. Court of Appeals for the Federal Circuit.  The model order incorporates principles of proportionality to reduce the production of email in patent litigation.  In adopting the order, the court explained that email productions should be scaled back since email is infrequently introduced as evidence at trial.  As a result, email production requests will be restricted to five search terms and may only span a defined set of five custodians.  Furthermore, email discovery in DCG Systems will wait until after the parties complete discovery on the “core documentation” concerning the patent, the accused product and prior art.

The Lesson for 2012: Courts seem to be slowly moving toward a system that incorporates proportionality as the touchstone for eDiscovery.  This is occurring beyond the field of patent litigation, as evidenced by other recent cases.  Even the State of Utah has gotten in on the act, revising its version of Rule 26 to require that all discovery meet the standards of proportionality.  While there are undoubtedly deviations from this trend (e.g., Pippins v. KPMG (S.D.N.Y. Oct. 7, 2011)), the clear lesson is that discovery should comply with the cost cutting mandate of Federal Rule 1.

Another Must-Read Case: Omni Laboratories Inc. v. Eden Energy Ltd [2011] EWHC 2169 (TCC) (29 July 2011)

Leveraging eDiscovery Technologies for Search and Review

Case: Oracle America v. Google (N.D. Ca. Oct. 20, 2011)

The court ordered Google to produce an email that it previously withheld on attorney client privilege grounds.  While the email’s focus on business negotiations vitiated Google’s claim of privilege, that claim was also undermined by Google’s production of eight earlier drafts of the email.  The drafts were produced because they did not contain addressees or the heading “attorney client privilege,” which the sender later inserted into the final email draft.  Because those details were absent from the earlier drafts, Google’s “electronic scanning mechanisms did not catch those drafts before production.”

The Lesson for 2012: Organizations need to leverage next generation, robust technology to support the document production process in discovery.  Tools such as email analytical software, which can isolate drafts and offer to remove them from production, are needed to address complex production issues.  Other technological capabilities, such as Near Duplicate Identification, can also help identify draft materials and marry them up with finals that have been marked as privileged.  Last but not least, technology assisted review has the potential of enabling one lawyer to efficiently complete the work that previously took thousands of hours.  Finding the budget and doing the research to obtain the right tools for the enterprise should be a priority for organizations in 2012.

Another Must-Read Case: J-M Manufacturing v. McDermott, Will & Emery (CA Super. Jun. 2, 2011)

Conclusion

There were any number of other significant cases from 2011 that could have made this list.  We invite you to share your favorites in the comments section or contact us directly with your feedback.

For more on the cases discussed above, watch this video:

Fulbright & Jaworski has conducted their Litigation Trends survey for nearly the past decade and the results are always interesting since they tend to capture the mindset of inside counsel and litigators as they anticipate the upcoming year.  In their 8th Annual Litigation Trends Survey, Fulbright noted that 92% of U.S. respondents predict that litigation will either increase or stay the same in the upcoming year.  This trend bodes well for players in the litigation services and eDiscovery sectors, and confirms the counter cyclical nature of the industry.  Breaking down the perceived increases across industry verticals, the Survey noted that the biggest anticipated jumps were in the technology, financial services, healthcare and insurance sectors.  Meanwhile energy (the leading sector from the prior year) was one of the few that predicted a decrease.

Going behind the scenes, there were a number of factors that caused respondents to predict litigation increases.  First and foremost, respondents indicated that “stricter regulation was the number one reason” for the increases, particularly with insurance, financial services, health care and retail sectors.  These concerns around regulatory compliance have been increasingly keeping GCs and corporate boards awake as the governance climate continues to heat up.  This regulation driver showed a demonstrable increase with 46% of all respondents having retained outside counsel to assist with regulatory proceedings, up from 37% in the prior year.  The Survey noted that U.S. companies facing a regulatory investigation were most likely to be under pressure from the DOJ (27%), State Attorney General (24%), OSHA (18%), the EPA (16%) and U.S. Attorney (13%).  Also on the regulatory front, U.S. respondents have increasingly begun to recognize the potential jurisdictional reach of the U.K. Bribery Act, with 25% of U.S. companies stating that they have already conducted a review of existing procedures in preparation for implementation.

In addition to managing risk, most in-house counsel are keenly concerned with controlling litigation costs.  The good news here is that associated costs are predicted to be generally flat.  Yet, eDiscovery remained the largest category targeted for increased spending, with 18% of respondents making this their top priority.  Interestingly, though, large enterprises seem to have been doing a good job of getting eDiscovery expenses under control (likely by taking expensive elements of the EDRM in-house), with these expenses declining among the largest companies, from 42% last year to 24% this year.

The Survey noted that the use of cloud computing has gained speed, with 34% of all public companies using the cloud.  And yet, only 40% of those companies using cloud computing have had “to preserve and/or collect data from the cloud in connection with actual or threatened litigation, disputes or investigations.”  This number appears curiously light, and it should definitely rise during the upcoming year as the plaintiff’s bar gets more savvy about this relatively new source of responsive electronically stored information (ESI).

On the narrower eDiscovery front, the Survey honed in on newer issues like cooperation.  Here, the Survey noted that this Sedona-sponsored concept still hasn’t completely taken hold, with nearly 40% of all respondents claiming that “their company has not made the effort to be more transparent or cooperative” due to a litigation strategy of “defending on all fronts.”  This area appears particularly muddled, with one third saying their previous attempts haven’t been reciprocated and another quarter feeling that their company was already transparent.

All in all,  the 2011 Fulbright Litigation Trends Survey notes trends that appear to be largely in line with the primary drivers of (1) managing risk and (2) lowering litigation costs.  On the risk side, compliance with an increasingly complex regulatory environment is offsetting any potential lull in the litigation environment.  And, on the cost side, eDiscovery continues to be a hot button issue, particularly with the relatively new challenges associated with ESI distributed on social media, cloud computing and mobile sources.

The data explosion that has burdened organizations across the globe for the past decade has become increasingly expensive to manage.  Many experts point to storage as the most obvious culprit for higher information governance costs.  There are, however, other factors driving those costs.  For example, demands for electronically stored information in legal and regulatory proceedings have significantly increased expenses surrounding data management.  Those demands have forced organizations to meet the high expectations that courts and regulatory bodies have for how they address their information or face the consequences.

Those consequences include sanctions and regulatory fines for groups that fail to account for how they store, manage and discover their information.  The $919 million verdict rendered in the E.I. du Pont de Nemours v. Kolon Industries case is paradigmatic of this trend.  That verdict was inextricably intertwined with the court’s instruction to the jury that executives and employees for defendant Kolon Industries deleted key evidence after the company’s preservation duty was triggered.

Going to Cloud Services for Data Archiving and eDiscovery

These rising data costs – and the risks they pose – are driving organizations to explore new technologies and methods for managing their data.  The latest alternative to traditional on-premise solutions involves leveraging cloud-based services.

The hype surrounding the cloud has generally focused on the opportunity for cheap and unlimited storage.  While cost effective data storage is important, that factor alone should not be determinative for selecting a cloud service provider.  Organizations must have the actual – not theoretical – ability to retrieve their data and do so in real time.  Otherwise, they may not be able to satisfy legal or regulatory requests, let alone the day-to-day demands of their operations.

In an analogous context, courts have traditionally compelled paper document productions even though the requested materials may be buried in a messy warehouse.  In one such case from this year, a U.S. district court in New York ordered a company to turn over decades-old records that were commingled with other materials in poorly labeled, shrink-wrapped boxes.  The court reasoned that disorganized record-keeping should not excuse an organization from producing relevant information.  See Brooks v. Macy’s (S.D.N.Y. May 6, 2011).

The rationale from the Brooks case is equally applicable to cloud-based services.  Cloud-based data must be intelligently organized so that companies can retrieve data in a timely fashion for business and legal purposes.  Otherwise, the savings achieved through cheap storage will be negated by the resulting legal quagmire.

Paring Back Superfluous and Duplicative Information

To facilitate the data retrieval process, the right cloud service provider should have the capacity to implement and observe applicable company retention policies.  An effective retention policy will generally help a company retain information that must be kept for business, legal or regulatory purposes – and nothing else.  The service provider should enable automated retention rules to ensure that information is kept only for a designated time period.  This will allow data to be expired once it reaches the end of that period.  And by expiring that data, the company will limit the amount of potentially relevant information available for follow-on litigation.

The pool of information can also be decreased through single instance storage.  This deduplication technology eliminates redundant data by preserving only a master copy of each document placed into the cloud.  This will reduce the amount of data that needs to be identified, collected and reviewed as part of the electronic discovery process.  For while unlimited data storage may seem ideal now, reviewing unlimited amounts of data will quickly become a logistical and costly nightmare.

Tools to Facilitate Discovery

A cloud service provider should ideally have eDiscovery functionality.  At a minimum, the service provider should be able to deploy legal holds to prevent users or automated policies from overwriting and destroying data.  Advanced search capabilities should also be included within the cloud-based service to reduce the amount of data that must be analyzed and then reviewed.  Moreover, the provider should support compatible load formats for export to third party review software.

Another key discovery issue is whether the cloud service provider can establish a clear audit trail for transmissions of company data.  Since information could be modified in transit by the routine operation of a service provider’s computer systems, an audit trail is necessary to prove that company documents and their metadata were not affected or otherwise compromised during transmission.  Without this assurance, a company may not be able to demonstrate the authenticity of its data before a tribunal or comply with key regulations.

A cloud server provider that can quickly retrieve and efficiently discover data has the potential to help organizations address their legal and regulatory demands in a cost effective manner.  Such a provider may be just the solution for organizations that are looking to properly address their runaway information governance costs.

One of the new buzz words of the last few years in computing has been Cloud Computing. After the initial hype, and the subsequent shakeout of its potential, everyone is beginning to recognize that it represents a paradigm shift in how we purchase, deploy, and utilize computing resources. The general impetus for the cloud has been its potential to reduce capital costs, offer flexibility in purchasing computing resources, and reduce operational costs in maintaining hardware resources.

A lot of what the cloud offers is achievable using existing technologies, but repurposed in new and innovative ways. Several forms of the cloud, with specific benefits to customers, are being packaged and promoted. The offerings are delivered as cloud services, such as Platform as a Service (PaaS), Infrastructure as a Service (IaaS) and Software as a Service (SaaS). Without getting into specifics, each service offering comes with a set of service agreements between the purchaser and provider of the cloud services.

As with any new initiative, there are new challenges to contend with including security and compliance with corporate policies and industry regulations.  Although these issues are substantial, for this article, let us consider the legal implications as it relates to electronic discovery. We all know that sooner or later, every organization faces litigation, and increasingly, fair number of them involves e-discovery. Traditionally, in house legal and IT teams have had an understanding of how to respond to legal requests and have focused on litigation readiness. But, how do these translate to the new cloud computing paradigm? I’ll examine some of the challenges in a series of posts on e-discovery and the cloud. For starters, let’s analyze the challenges and considerations inherent with the duty to preserve electronically stored information (ESI).

Duty to Preserve ESI

Before we get to the mechanics of electronic discovery and actual preparation for Rule 26(f) conference, the duty to preserve arises. The duty to preserve may be triggered when a legal proceeding is “reasonably anticipated” and increases in importance on receipt of pre-litigation correspondence or a similar trigger event. Traditionally, such duty to preserve is reflected by placing litigation holds. It is often the case that litigation holds are placed on at least a portion of the ESI well ahead of an actual triggering event. See Adams v. Dell as perhaps an extreme example. In fact, some organizations invest in litigation support software technologies for classifying data and placing holds on the most reasonable subset.

How does such a litigation hold translate into the cloud? As a customer of a cloud, one should craft service agreements to dedicate certain cloud-resident data, in the form of folders or other broad categories, to be preserved. If the cloud provider has deployed technology to ensure that no party within the customer’s user community can delete the preserved data, it is well and good. However, placing such restrictive access impedes normal running of the business, and becomes impractical. Essentially, data in the cloud that is available for normal course of business is in the hands of user-custodians. If they then delete the data either deliberately, or inadvertently, or through normal business functions, that data deletion is subject to spoliation claims. Even though the “safe harbor” from spoliation sanctions of Rule 37(f) applies when information is lost due to the “routine, good faith” operation of electronic information systems, when preservation order is in place, shelter under 37(f) is not possible. Thus, the actual implementation of litigation hold comes under scrutiny. Because of this, many implementations adopt preservation using a “copy and preserve” model. However, this model is at odds with live business data that is constantly evolving. Even if the latest point-in-time snapshot technology at the physical volume is employed, the result is inadequate – you end up preserving massive volumes of data in the cloud, unrelated to actual logical messages or files that need to be preserved. What is needed is some smartness in the form of an application in the cloud itself that can translate a litigation hold request into specific ESI in the cloud. Who owns and manages this application and what the service levels are for this application is a significant issue.

Now, the view from the cloud provider’s perspective is very different. In light of the flexible data management architectures available, there is a great temptation to share both data with a litigation hold and data without a litigation hold on the same physical infrastructure. As a result, the cloud provider   preserves all data from every customer that is resident on that infrastructure – a very conservative approach. As a consequence, this would preserve another customer’s ESI accidentally and that data is now discoverable, in the context of a different litigation, despite the second customer’s active management of the data. Preserving a set of live, constantly changing data in the context of a single enterprise is technically difficult; doing so across multiple customers, sharing the data infrastructure is exponentially harder.

Another related issue with preservation is the need for the ability to release preservation holds. Typically, when the litigation response team determines that the legal hold is not necessary, the hold is released. In the “copy and preserve” model of litigation hold, one has to verify that the released ESI does not overlap with other litigation holds and is marked for destruction. One of the benefits of the cloud is the flexibility in storing bits and pieces of data wherever data capacity is available. Applying the release can again be tricky for both cloud customer and the cloud provider.

Given these additional complexities of evidence in the cloud and the fact that the duty to preserve may arise well before the trigger event of litigation, the costs associated with the duty to preserve can add up very quickly. It’s essential to understand three critical items related to the duty to preserve in the cloud: 1) what the cloud provider would charge for ongoing preservation, 2) whether agreements with the cloud provider cover the legal issues raised by the duty to preserve and 3) what the cloud provider offers in terms of a flexible workflow for applying and releasing legal holds.

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