Monthly Archives: January 2024

I spent the better part of this past week at the EDRM kickoff meeting in St. Paul, MN. For those of you that aren’t familiar with it, EDRM stands for electronic discovery reference model. The goal of EDRM is to “develop guidelines and standards for e-discovery consumers and providers…helping e-discovery consumers and providers reduce the cost, time and manual work associated with e-discovery.” A lot of great thought leadership has emerged from EDRM, including the well-accepted reference model that provides insight into all the activities that need to happen during eDiscovery.

Everyone may be familiar with the Electronic Discovery Reference Model (EDRM), but many of you may not know much about the organization that created this iconic representation of the eDiscovery lifecycle. EDRM turned six this year and has grown to over 300 participants that span providers, firm, corporate and independent discovery practitioners. The record attendance this year (104 participants) reflected the uptick in business and company’s willingness to commit budget to eDiscovery initiatives. The initial EDRM diagram project has grown to nine active projects developing non-commerical eDiscovery resources and guides. George Socha and Tom Gelbmann (of the Socha-Gelbmann Survey) coordinate the twice yearly meetings and tirelessly support all of the group conference calls and web resources throughout the year. The May gathering is a chance to report on project progress and set new goals for the next year. Each project has two to three leaders and 10-90 individual and organizational participants. All public materials are freely available for use under the Creative Commons Attribution 3.0 United States license as long as you properly attribute them to the EDRM project. The projects follow a consensus based approach and participants of all backgrounds and experience levels are welcome.

In my consulting practice, I frequently work with corporate legal departments to select and prepare their designated ‘IT Custodians’ who will have to sign affidavits and may be deposed/testify as a Rule 30(b)(6) witness. Historically, these designated subject matter experts covered accounting systems, business practices and other complicated areas relevant to the issues at the heart of a matter. The enterprise ESI lifecycle itself has become so complicated that every preservation or collection request may now require a translator to effectively communicate all the implications of system configurations, user actions and discovery technologies on the scope and format of response efforts.

While at the recent EDRM 2010 Kickoff meeting, I was able to get a guided tour of the newly released Relativity Six from Andrew Sieja (CEO) and his team. Having several clients who have standardized on the kCura platform in the last year, it was definitely interesting to see the new features and product direction. I will not try to walk through every new bell and whistle here, as your favorite sales rep is more than happy to dive into that level of detail. Instead, I will try to give you the high level points. Andrew’s goals for this release included improving the analytics integration, review workflow, ‘ECA’ functionality and to extend the platform with a new API. Calling out ‘Early Case Assessment’ drew a spirited round of critical debate on the dubious validity of the term in light of the overuse in the discovery market. Despite the call from George Socha to ban the term from the sales cycle, I can see how cKura’s new Relativity Pivot feature supports many of the typical scope and liability assessment scenarios. The overall goal seems to be a more integrated and mature interface for case managers and power users to automate workflow and extract collection profile characteristics.

One of today’s stories from the eDJ (eDiscoveryJournal) news engine reminded me of that first email review. The contract paralegal used the firm email system to complain about a festival and was subsequently sacked for her temerity. I used to call this the ‘5,000 to One Rule’. The first time any corporation attempted an in-house review of journaled or restored email, we would see at least one employee fired or disciplined for every 5,000 email reviewed.

Traditional discovery search applications like dtSearch and processing packages like Clearwell are usually offline while new collections are being indexed. Litsupport and legal personnel are used to being confident of the collections being searched at that moment. If you add new ESI to your matter, then you need to update the index before your search, right? But now that there are tools for searching ESI where it lives on live corporate servers and desktops, we introduce a relatively new wrinkle into search, index lag. Enterprise and desktop search engines run in the background and watch for new, deleted or changed files within the scope of folders that they are watching. The problem is that index updates are never instantaneous, which means that enterprise wide searches are never 100% complete.

Recent discussions on Debbie Westwood’s Small Firm eDiscovery LinkedIn group have revolved around the results of the 7th Circuit’s pilot program to reduce eDiscovery costs. The focus of this program seems to be actual discussion at the Rule 26(f) Meet and Confer instead of the usual bilateral sets of demands that are misinterpreted or poorly translated back to the technical teams. The program reflects the ongoing efforts of The Sedona Conference® Cooperation Proclamation to “reverse the legal culture of adversarial discovery that is driving up costs and delaying justice”. This effort to make all the attorneys ‘play nice’ with each other does not address one of the critical assumptions that has crept into civil litigation as a whole. That is the assumption that only attorneys can or should directly communicate between the parties once litigation is filed.

I have always contended that the estimates of the true volume and cost of eDiscovery compliance resembled the proverbial iceberg. The Socha-Gelbmann Survey, Gartner Magic Quadrant and Forrester Wave only deal with the small minority of matters that rise above the waters because their particular size or risk forced the parties to treat them with due diligence. The recent run of judicial sanctions and caselaw have focused entirely on preservation and search criteria issues, but they have raised corporate awareness about the difficulties associated with desktop preservation and collection. I have seen this awareness translated into corporate clients exploring their options, if not actually conducting RFP exercises in search of a solution.

Howard Reissner, CEO of Planet Data, forwarded me new eDiscovery decision with best practice implications, Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). Being elbow deep in an ugly client issue, I did not get around to digesting the case until well after Ralph Losey, Craig Ball and others have properly dissected it. So I missed the scoop and have to settle for chewing over some of the crumbs in one of the more interesting recent discovery decisions. Stepping aside from the legal wrangling about privilege waiver, I always enjoy getting insight into the raw metrics and burden of litigation that can be dissected publically. Start with the fact that 1,638 GB were collected via forensic imaging from 29 custodians. That means beginning with roughly 60 GB/user. Typical processing at $350-500/GB could have run the Feldman $500-750k just to get it ready to filter and search by their provider, Innovative Discovery. Although the actual file/email count was not given in the opinion, we can roughly guess that it was between 8 and 12 million individual ‘documents’. Even assuming that you can drop 50% in system files and the usual filters, Felman was still staring at a multimillion dollar manual review.

AIIM's recent report on content analytics and the use cases for it points out good news for the eDiscovery market - more adoption of eDiscovery tools and higher spending in the next 12 months.