As the cloud grows, so does the number of places where individuals and corporations can store information that may be discoverable. DropBox and Google Drive, both of which provide cloud storage, are reportedly two of the most popular free applications downloaded on Apple and Android devices.
A subpoena sent directly to one of these application providers will likely meet a motion to quash based on Title II of the Electronic Communications Privacy Act (also known as the Stored Communications Act or SCA). In “Discovery Difficulties Presented by Cloud Computing” in The National Law Review, J. Michael Nolan III, of Jackson Lewis PC, cited Crispin v. Christian Augigier Inc., in which “the court found … that the SCA was passed by Congress to prohibit electronic communication service providers, such as Facebook and Myspace, from revealing the contents of communications electronically stored to anyone other than the addressee or other intended recipient.” The better option may be to subpoena the plaintiff or defendant app user to obtain electronically stored information in the cloud.
Nolan also writes that in the ongoing case of Integral Development Corp. v. Tolat, the court ordered the defendant to return any proprietary information he possessed on any storage medium, including Dropbox. Dropbox opposed the subpoena based on the SCA, so the court ordered that the Dropbox data be produced directly to the defendant’s attorney, who in turn was ordered to turn it over directly to the plaintiff’s forensic expert to determine whether any relevant information had been uploaded, transferred, or deleted from the Dropbox account.
Because viewing the file on an end-user’s computer would have changed the metadata, there were two options for providing this information: 1) Dropbox could generate a complete forensic report that included information about who accessed the cloud account or 2) the information could be reconstructed by accessing each computer that had synchronized with the account – a very labor-intensive (and therefore costly) alternative. The court chose the latter.
It’s imperative that attorneys keep abreast of these types of issues and be prepared to deal with them. The courts have made it clear that ignorance is no longer bliss when it comes to dealing with electronically stored information.