Robert M. Finkel, partner in the law firm Dewey & LeBoeuf, advises clients to fight for specific data return provisions in any IT sourcing contract, whether or not the arrangement involves critical or sensitive data. Just because you're not doing putting key data in the cloud today doesn't mean you won't tomorrow. "You can generally get these provisions into a cloud computing contract," says Finkel. "It just takes a little more time to sensitize the vendor to these issues." Ideally, the contract would provide the data within a specified period of time in any format the client wants. But, admits Finkel, "while that's a simple solution, it can be tough for the vendor because it creates open-ended exposure." But it's a good place to start the negotiations, he says.
"Reasonable compromises will depend on the type and importance of the data at issue," says Finkel. "The ideal situation would be for the parties to clearly specify the exact format in which the data should be returned, and how it should be returned." For example, the parties could specify that the data be returned in a PST file available either as a download or via a storage device within a specified period of time.
But being too specific has its drawbacks, as well. "In an ideal world, the parties would address data portability and clearly specify the exact format in which the data should be returned; however, that's not always realistic because most cloud agreements are multi-year agreements with various file formats of data being processed," says Finkel. "If the parties try to agree on the format at the beginning of the agreement, that format might not be the best option three years down the road."
Most importantly, says Finkel, "the agreement should allow for flexibility over time and for common sense to prevail." Bringing up the issue early on gives the cloud services provider time to factor data return into its cost model. "Vendors are in the business of trying to make customers happy," says Finkel. "The whole reason to address this upfront is so that no one runs into any cost surprises later."
Read more about outsourcing in CIO's Outsourcing Drilldown.