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Data Sharing in the Cloud

By Gregory Mottla and L. Elise Dieterich

Storing and sharing data “in the cloud” has become, in many instances, a business necessity. The practical and economic advantages of cloud computing are clear ' it eliminates the need to send client data via traditional, costly methods, and is significantly less expensive than building and maintaining the same data storage capacity in-house.

Despite its obvious benefits, counsel must consider whether client data stored in the cloud is safe, not just from hackers, but from the inadvertent waiver of the attorney client privilege. Fine print in cloud providers' Privacy Policies and Terms of Service (ToS) authorizing third parties to access information may jeopardize the privileged status of documents stored in the cloud. Ambiguous case law, expansive and vague provider policies, and uncertainty surrounding the attorney client privilege in the context of evolving technology, require that counsel exercise due diligence and follow best practices to ensure that the attorney client privilege is protected when sharing information via cloud-based services.

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