Copyright © 2013 by K&L Gates LLP. All rights reserved. PROTECTIVE ORDER/CONFIDENTIALITY AGREEMENT CHALLENGES PRESENTED BY EVER-EVOLVING ELECTRONIC DATA STORAGE PRACTICES Louann Cutler Partner

1  Confidentiality Agreements and Protective Orders usually contain language requiring the parties to destroy or return documents at the completion of the transaction or litigation  “Documents” are generally defined broadly to include all manner of electronic as well as hard copy images

2  In the ever expanding world of electronic data storage practices, compliance with the return/destruction requirement goes beyond making sure that all hard copies, disks, thumb drives, the databases in which you have stored electronic images, extranet sites, and documents attached to s are destroyed or disabled.

3 Think expansively. Some examples:  Back up/disaster recovery media   File sharing  Wikipedia defines file sharing as “the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia (audio, images and video), documents, or electronic books. … Common methods of storage, transmission and dispersion include manual sharing utilizing removable media, centralized servers on computer networks, World Wide Web-based hyperlinked documents, and the use of distributed peer-to-peer networking.”removable mediacomputer networksWorld Wide Web hyperlinkedpeer-to-peer networking  Copier hard drives  Fax machine memories  After project over, usually only technicians have access; expensive to destroy outside of routine destruction practices

4  Cloud Computing  According to Wikipedia: “Cloud computing is the use of computing resources (hardware and software) that are delivered as a service over a network (typically the internet). The name comes from the use of a cloud-shaped symbol as an abstraction for the complex infrastructure it contains in system diagrams. Cloud computing entrusts remote services with a user’s data, software and computation.”

5

6  Hyperlinking of citations in briefs or other documents can be done with a cloud  Need to make sure clouds are disabled when complying with return/destruction requirement of PO or CA

7 Bottom line  Think through all unique electronic storage issues when complying with request to return or destroy  Other party has the same issues, so should be able to work through together cooperatively  Consider addressing in advance in the PO and/or CA.

8 DISCUSSION/QUESTIONS/COMMENTS