Monthly Archives: January 2024

Bigger than life. That was Jack. The big guy lost his battle against cancer this morning and the eDiscovery world is a smaller, darker place. Others can rightly expound on his contributions to our rather esoteric calling as a leader at Guidance, Autonomy/HP and most recently Google. Right now I just miss my friend. He never let go of that irrepressible intensity, irreverence and honesty that we all brought to our first job. If you are up to it, raise Jack’s favorite Jägermeister shot in remembrance.

You have heard my skepticism and concern about marketers in educational clothing. It is a nice change to call your attention to some solid reference material on eDiscovery developed for a formal, traditional law school program. Michael Arkfeld’s 3rd Edition now exceeds 1,700 pages (available in CD or through LexisNexis online). eDiscovery is a relatively young discipline and most courses, white papers or other resource materials are out of date before they are even published. Michael’s long term perspective tempers the usual overstatements made in the rush to ‘best practice’. His core reference book and four supplementary practice guides are a worthwhile investment for new practitioners and departments. Yes, Michael graciously sent me the latest release to review, but he took his chances on my somewhat acerbic feedback just like technology vendors who send me software to break. I could not find any discussion of the 2015 FRCP Amendments that will take effect at the end of the year, but we never really know how those will play out until argued before the bench anyway. As much as I shy away from spending educational budget on what are effectively ‘mail order certificates’, I will continue to recommend Arkfeld’s material to my corporate and law firm clients to help new personnel up to speed.

The ‘TAR Wars’ have argued incessantly over the different approaches to training the analytic engine to extract the 1-3% of relevant items from your raw collections. Proponents of true random sampling (Herb Roitblat of Orcatec) have criticized ‘Active’ sampling based on user provided seed documents because the active approach might miss unanticipated concepts or documents. In other words, some approaches are great at finding what you already know about, while others might find relevant documents that you never even considered and eliminate potential reviewer bias. Given the selective recall of many corporate custodians, diligent counsel will want to know the good and the bad before trying to settle a matter. Savvy counsel, providers and consultants have used multiple approaches in the primary review and QC stages to optimize recall while tackling ever larger collections. The conceptual navigation approach starts with a visualization or inventory of conceptual clusters to let the collection ‘speak’ for itself. Brainspace, Tunnelvision and other platforms have advocated this top down conceptual navigation to know what you have before you start training your relevance model. Catalyst has coined the term ‘Contextual Diversity Sampling’ to describe their system to find topics that reviewers might have missed in the Continuous Active Learning process. There are all kinds of jokes about how diversity can make us all PC. Call it what you want, I am pleased to see more mature, practical analytic workflows hitting the market. We all know that manual linear review of 100% of collections is neither accurate nor practical in the face of the corporate data hoarding juggernauts. So we need review solutions that even conservative counsel will get behind to tame skyrocketing discovery budgets. Keep asking hard questions and sending me feedback on both hype and success.

Matter management platforms that are suitable for large enterprise customers are not as common as a simple Google search or general software purchasing site would lead you to believe. There are LOTS of home grown Saas offerings suitable for solo or small firms, but very few with mature, customizable workflow actually designed for corporate legal departments managing hundreds or thousands of legal matters. When Mitratech announced that their acquisition of Bridgeway would benefit these enterprise customers, I immediately wanted to see how many viable competitors were left in the market, which is not as easy as that sounds. I created a matter management category in our eDJ Matrix that found 9 solutions, but experience tells me that our categories require some research to tune and nudge the providers to update their listings. My quick impression is that one of the leaders in enterprise legal management (ELM) just absorbed another primary competitor. That leaves providers with broader offering suites such as Thomson Reuters, HP, Exterro and IBM. eDJ’s clients now have fewer options for matter management functionality without all the baggage.

Information governance (IG) is one of those things that every company talks about, most companies know they should do, but very few actually follow through with. IG, quite simply, is records retention and destruction, both of those tasks occurring according to an established protocol and schedule, and preferably with a minimum of subjective human interaction. And, of course, you can't govern your information if you don't know where all of it is, so IG presumes that the enterprise has control of its data as well.

Just as I was lamenting the shrinking field of Matter Management offerings suitable for enterprise level customers, the founders/execs of iManage announced that they have extracted their product from Autonomy-HP borg. I hope that the developers did not drink the IDOL Kool-Aid and are able to revert the database/index/analytics back to something practical for customers to deploy. This on the same day as U.S. District Judge Charles Breyer approved a $100 million settlement between a Dutch pension fund and HP over the Autonomy acquisition. Catch the Courthouse News Service article title, “Pensioners Get $100M for HP’s Takeover Flop”. Nice juicy terms such as “disasterous $10.3 billion purchase of Autonomy Corp.”, “botched acquisition” and “blamed former Autonomy executives for misrepresenting its revenue”. Fun.

I was refreshing a presentation for a prospective client meeting and thought that I would share a fun slide. A ‘Data Map’ can mean many things, but I always just took it literally as a map to all of your potentially relevant ESI. But the physical locations of your data centers and local hordes of hard drives is less important than relationships to business units, custodians, retention categories and more. I actually enjoy profiling the systems, finding the legacy caches and essentially visualizing the data lifecycle of complex corporations. Every company has evolved a unique set of interdependent systems with their own ESI formats and content. If you are tasked with making a ‘data map’, I hope that this helps you see past the pretty software to the bigger profiling challenge.

Andy Wilson’s call to “end eDiscovery” as we know it is not just a clever bit of guerilla marketing. His slings and arrows of outrageous fortune justly criticizes the stubborn immaturity of eDiscovery buyers compounded by the $/GB avarice from vendors. Been there, wrote that blog a few times. It is good stuff and good fun. Outdated approaches and purchasing models do drive up costs. I think that he missed one of the key causes to this ‘stain’ on our industry. Babies and puppies make messes because they do not know better. Immature eDiscovery buyers are frequently isolated by the adversarial and confidential nature of our art. So called educational webinars and other free resources are almost entirely created by marketing departments to support those same high margin offerings that we are criticizing. We need to break down the walls of self-censorship. Why can’t we publish pricing? Why do vendors refuse or ignore RFI/RFP forms that force them into clear apple to apple comparisons? Besides the usual update lag, why are there only 53 out of 886 offerings in my eDJ Matrix that have published pricing? We cannot expect providers to go against their own self interest, especially those with shareholders or investors to placate. So it is up to buyers to break down the barriers and help the entire industry become smart, mature practitioners.

***Mild rant warning*** My thanks to Stephen E. Arnold for adding this oh-so-applicable term to my eDiscovery market vocabulary. The original Technonomy article titled “Are Media Companies One Native Ad Away from Becoming Presstitutes” defined ‘native advertising’ as publishing paid 3rd party content, presumably without a clear declaration that the external content was sponsored. I love the terminology and believe that it describes the core problem with eDiscovery ‘news’ and ‘educational’ resources. My belief is based on my own experiences starting almost a decade ago with my earliest sponsored blogging for DCIG. From the first briefing with sponsors I found myself fighting subtle or direct pressure to deliver their marketing messages. Very few experts can dedicate the time to research or write on our quickly evolving profession without direct compensation. The legal technology consumer base is unwilling to pay for independent research or perspective. Instead, vendor marketing budgets fuel content creation shaped by the key conclusions calculated to create leads and support go to market campaigns. That is my firm opinion of how our ‘news’ is shaped, filtered and broadcast. I have played my own part in this mess by writing sponsored ‘white papers’ and articles. Barry Murphy and I insisted that everything was researched and written independently before sponsors decided if they wanted to license our findings. We were sure that consumers would pay for real research and perspective once we had established a good track record and reached enough of them. We were wrong. I now believe that the old models of subscription news, market analysis, product research and others are essentially doomed. Most have quietly converted business models to the production of defacto ‘advertorials’, ‘infomercials’ and ‘PResearch’. I hope that you enjoyed the new terminology as much as I have. Be a savvy reader and buyer.

In my 2014 Analytics Adoption Research found a surprisingly low rate (5-7% overall) of professionals relying on PC/TAR systems to make relevance decisions without human confirmation. Now that Mikki and myself spend the majority of our time solving consulting client conundrums and have to fight for research time, I gobble up every survey I can find to track our fast moving market. Digital WarRoom blasted their 2015 IQ Meter survey out to 20,000 email addresses and got 400 responses for their 15 broad market questions. Any time you find a survey statistic quoted, you should check to see if the source actually published the raw survey responses (like we do). Why? Because it too easy and tempting for marketers to ‘summarize’ responses to fit their agenda. DWR survey Questions 11 and 13 take us back to PC-TAR: