Some people think that when you delete a file off of a computer it is gone forever. The truth is that it still exists on your computer, and deleting a file is more akin to removing a note card from a card catalog at the library. The book still exists, it is just much more difficult to find. The same is true of files, and one court has found that even deleted files are subject to discovery orders and sanctions can be issued for destroying them. In TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009), plaintiffs, TR Investors, LLC (“TRI”), sought sanctions against defendant, Arie Genger, for using software that deleted files in violation of an existing discovery order.
Continue ReadingWe’re rolling out a new feature on eLLblog today, Google Watch, which will be tracking the latest developments in the lawsuit Google v. The United States. October 29, 2010 - In Google v. The United States, filed today by Google in the U.S. Court of Claims, the Department of Interior (DOI) sought a cloud service provider to outfit the agency with a single hosted email and collaboration services system in an effort to centralize its messaging services, which currently includes thirteen separate email platforms. Google believed that it could present a competitive offer with its Google Apps product, which it claims is the first suite of cloud-computing applications to receive Federal Information Security Management Act (FISMA) certification and accreditation. But according to the Complaint, despite repeated efforts at conveying their interest and the abilities of their cloud-product, the DOI focused on moving forward with a new Microsoft cloud-service, Business Productivity Online Suite-Federal (BPOS). Google’s lawsuit claims that the Microsoft BPOS product is new and untested, as it has not been certified to meet FISMA standards. Google also asserts that the DOI’s insistence on a “private cloud” for the Department, i.e., their demand that the cloud’s data storage and computing infrastructure be dedicated solely to the Federal government, is not necessary to satisfy the Department’s needs. Believing that the seemingly pre-determined decision to move forward with Microsoft’s BPOS was in violation of federal law, Google now seeks to prevent the DOI from continuing to proceed with its placement process with Microsoft, and seeks a court order requiring the DOI to hold an open and competitive bid process. With the market for cloud-based solutions on the rise, this is sure to be just one of many “cloud wars. Click here to download the Google v. U.S. Dept of Interior Complaint, and check back with eLessons Learned for timely coverage of this novel lawsuit. If you'd like to learn more about U.S. cases that have had direct, substantive implications for cloud users, including cases that have dealt with personal jurisdiction, privacy rights, e-discovery, and copyright infringement, see "Avoid the Rainy Day: Survey of U.S. Cloud Computing Caselaw," Fernando M. Pinguelo and Brad Muller, Boston College Law School Intellectual Property & Technology Forum and Journal, November 5, 2010
Members of the American Bar Association – International Law Section gathered on November 5, 2010 at The Westin Paris in Paris, France to actively participate in a panel discussion titled “Ephemeral Boundaries: Cross-Border Implications of Cloud Computing” sponsored by the International Litigation Committee. Cloud computing, in which electronic information is processed and stored over the Internet, poses fundamental challenges to the most revered concepts of the rule of law: Geographic basis for statutes and regulations, jurisdiction based upon physical presence, and data protection, security, and privacy laws based upon the location of tangible assets such as hardware and people. Privacy and data protection laws requiring standards of protection for transfer to certain jurisdictions may pose challenges to cloud arrangements. Re-evaluation of traditional notions of disclosure and discovery of information in the cloud may also be in the offing as the cloud alters these paradigms.
Continue ReadingHow often are you pretty sure you are right about something – be it directions, a phone number, how many rounds there are in the NFL draft, etc – but you take a few seconds to make sure by running a Google search? This happens all the time; it is why Google is so great. You can be 90% sure about something, take 20 seconds to check Google, and then be 100% sure. It seems like everyone uses Google, the word has become a verb: “I think the Court’s filing deadline is 5pm, I’ll just Google it to make sure.” So, if everyone uses Google to verify simple everyday facts, why can’t a judge do so with respect to judicial notice? In U.S. v. Bari, the second circuit reviewed the district court’ decision to verify “a matter of common knowledge” by running a quick Google search.
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