1. 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 907-777-7630 louisiana.cutler@klgates.com

2. 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

3. 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 emails are destroyed or disabled.

4. 3 Think expansively. Some examples:  Back up/disaster recovery media  Email  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

5. 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.”

6. 5

7. 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

8. 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.

9. 8 DISCUSSION/QUESTIONS/COMMENTS