When considering forensic discovery in relation to cloud computing, ponder this non-exhaustive list of issues canvassed recently by some legal eagles on Twitter:

- Who actually owns the digitised documents?
- To what extent has control of the subject documents been lost?
- Jurisdiction is certainly a live issue eg the Patriot Act & USA based servers
- The fact the documents are in the Cloud does not mean they are not under your control, if you can download them.
- If you can access the document, arguably you have sufficient control to produce it.
- There are probably all sorts of hidden copies and e-versions lurking on people's computers and servers.
- Would the obligation to maintain financial records require retention of versions of documents?
- There may be all sorts of copies and embedded data over which you may not have control.
- Metadata is just another document, albeit hidden.

- Should firms be 'scrubbing' e-documents?
- Not if they are in any way related to taxation records!
- The Australian Taxation Office (ATO) would almost certainly view scrubbing as willful destruction.

- It could be a breach of confidence not to scrub some documents.
- s262A ITAA 1936 is drafted broadly "all records that explain transactions"
- "All" means all; Not some, not a few or a bit; ALL!!!
- Courts are reluctant to read down ATO powers too.
- Does the "cloud" have an obligation of confidence?
- How does that confidence obligation compare to the ATO recovery powers, which have been interpreted by the Courts to override confidence?

- Is a failure to "scrub" a breach of confidence or privilege?
- Do we have a duty to know which applies?

- What if the document has been provided to the other side?
- What are the implications of "scrubbing" such a document?
- Vigilance is required for Operating System changes. It may impact on the version of the document stored.
- "Scrubbing" is a double-edged sword. The document can be useful to corroborate a story when sued.
- Documents sitting on third party email servers need to be considered.
- Third parties may have a real interest in the subject documents. Their rights need to be considered before "scrubbing" or destruction is undertaken.
- If the "scrubber" is a 3rd party, he may be compelled to produce the subject documents.

(See Australia and New Zealand Banking Group Limited v Konza [2012] FCA 196 (9 March 2012) for the extent to which the ATO can compel production of documents)

This is by no means legal advice. However it is a suggestion to think carefully before venturing into the “cloud” for your document storage and any forensic discovery that may result from such a move.

Ross Bowler LLB

_Kingley & Arndale [2008] FMCAfam 600 saw Purdon Sully FM dealing with an objection to evidence on the basis of legal professional privilege. In so doing Her Honour found that:

1. Those claiming the legal professional privilege should produce an affidavit sworn by a lawyer from the solicitors or the litigant or both to prove that the communications in the files are confidential; and they were created for the dominant purpose of providing legal advice in anticipation of litigation that was taking place or reasonably apprehended.
2. The Court is unable to assess the “dominant purpose” test in respect of the subject documents without some evidence on oath and possibly some limited cross examination.
3. In assessing any claim for legal professional privilege the timing of the dominant purpose and the anticipated proceedings should be considered with respect to the documents sought.
4. Further the following may also be relevant: the circumstances in which any external advice is sought and its disclosure, and whether privilege has been waived or not .
5. That assessment is usually done after consideration of evidence on oath.
6. The issue of waiver of the legal professional privilege cannot be determined without sworn evidence.
7. The Court is unable to assess a claim of legal professional privilege in relation to a category of documents without properly tested evidence before the Court on oath and inspection of particular documents, if necessary.
   

Ross Bowler LLB