Our virtual world has caused clients and attorneys to store data in the "cloud" and then to transmit such information to others through platforms like Dropbox. However, decisions to store information in the "cloud," whether made intentionally or by default, and to use Dropbox to often send voluminous amounts of information, need to be carefully thought out. As the recent decisions below demonstrate, this usage, while embraced by individuals and entities operating remotely during the last year and a half, by either necessity or convenience, may not meet certain statutory requirements or court rules. Further, "cloud" storage in itself provides no basis to not produce relevant information in a litigation and "cloud" platforms need to be searched for electronically stored information.

In Homer DG v. Planning Bd., 2021 NYLJ LEXIS 929, EF21-276 (Sup. Ct. Cortland Co. Sept. 1, 2021), petitioner asserted that an audio/video recording of a "zoom" teleconference could not constitute an official decision. The court noted that, while the recording of the meeting may have been "accessible" to the clerk or the public, it was not appropriately "filed" until "received by the office with which, or by the official with whom, they are to be filed." The court noted that the village clerk did not provide evidence "demonstrating that the commissioner of education consented to the storage of such records by the Village of Homer on the Zoom cloud management system, or that Zoom storage meets the criteria established by the commissioner of education for storage of local government records in facilities which are not owned or maintained by the local government."