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tions to be answered when contracting with a service provider.
If cloud servers are in China,
for example, and are hit by
floods, what recourse do lawyers have through their contracts for data retrieval?
Ellam said that foreign legislation such as the U.S. Patriot Act
could allow a foreign country to
obtain such data stored on servers physically in its jurisdiction.
“When you store them in the
cloud, they’re going to be poten-
tially out of your control.”
While B.C. is providing guid-
ance on those points, Hume said
the situation comes down to this:
Can lawyers protect confidential-
ity and solicitor-client privilege
while meeting regulatory require-
ments for society investigations
“It doesn’t matter what the
technology is,” Hume said. “Cloud
computing is a reality. We no
longer live in a paper world.” n
On what terms can the service
provider cut off the lawyers’ access
to the records?
Will the lawyer have continuous
access to the source code and
software to retrieve records in a
How easily can the lawyer
migrate data to another provider, or
back to desktop applications?
Who has access to the data and
for what purposes?
Does the service provider archive
data for the retention lifecycle the
Are there mechanisms to ensure
data that is to be destroyed has
What are the lawyer’s remedies
for the service provider’s noncompliance with the terms of
service, service level agreement,
■ B.C. guidelines for cloud computing
potential data breaches, there
should be informed consent by
clients for cloud computing use.
There also needs to be the availability of indemnification from
the service provider in case of a
loss from a breach, and the purchase of insurance to cover
Denham said Canadian professional regulatory bodies and
other public bodies face a “
particularly significant challenge” as
most major cloud providers are
located outside Canada.
She said cloud computing is a
form of outsourcing and an area
where organizations are struggling.
“Proper governance tools,
such as corporate policies and
standards, along with rigorous
contractual provisions, are key
elements any time a public body
or organization allows someone
else to store their stuff,” Denham said.
Ellam said there are ques-
Lawyers must ensure the
confidentiality and privilege of their
clients information is protected in
clear contractual language with a
Lawyers should try to ascertain
where the data is stored or hosted.
Consider the political and legal risks
associated with data storage in
foreign jurisdictions. Can lawyers
comply with Canadian laws, such as
those governing the collection of
personal information, when using
third-party service providers?
Who owns the data?
Confidentiality and privilege are
rights that lie with the client.
Lawyers must ensure ownership of
their clients’ information does not
pass to the service provider or a
What happens if the service
provider goes out of business or has
its servers seized or destroyed?
Ensure the service provider
supports electronic discovery and
Does the service provider sell its
customer information or otherwise
try and commoditize the data stored
on its servers?
What security measures does the
service provider use to protect data,
and is there a means to audit them?
A lawyer should compare the
cloud services with existing and
alternative services to best determine
whether the services are appropriate.
Lawyers should establish a
record management system, and
document their decisions with
respect to choosing a cloud
provider. Documenting due diligence
decisions may provide important
evidence if something goes wrong
down the road.
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Source: Law Society of British Columbia
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