Monthly Archives: January 2024

There is a need to ensure that the redaction methodology used will work for the format of data in question, and to make sure that the redaction will actually make the private text both non-visible and non-searchable. In order to select the right redaction methodology, though, organizations must know what information they have, what format it’s in, and what elements are private or privileged. That takes planning and really requires that a proactive eDiscovery initiative (and hopefully infrastructure) be in place.

While there are some common trends, every company is different and the disconnect between legal and IT is so large that gauging eDiscovery purchasing habits is complex.

The archiving market is picking up steam, driven by a huge interest in cloud-based solutions. Cloud-based archiving providers offer virtually all the features of on-premise archiving – eDiscovery search interface; end-user access to email; compliance monitoring interface; storage management; legal hold. About the only thing cloud-based vendors don’t offer is mailbox management (stubbing)…and with the introduction of Microsoft Exchange 2010 to the market, the need for mailbox management is virtually dead. Still, though, there are valid concerns with cloud-based archiving – security; location of data; encryption; regulatory or legal requirements to store certain data on-premise; speed of document retrieval.

There are some that think that Google’s problems with the implementation of email for the City of Los Angeles will be a setback for cloud computing and Software-as-a-Service (SaaS) vendors. However, this is not going to kill cloud computing. Rather, it’s going to put the focus on aspects of cloud computing that are tricky and give Google’s competitors kill points and issues to build their marketing around.

Legal hold is one of the hottest eDiscovery topics of 2010. First, we saw legal hold applications featured prominently at LegalTech in New York – it seemed like every vendors was offering some kind of solution for preservation. Next, we had the Montreal Pension plan opinion, aka “Zubulake Revisisted,” in which Judge Shira Scheindlin hammered home the need for companies to have a written notification place in plan to let custodians know they have an obligation to preserve information. After that, we got a lot of pundits (eDJ included) questioning whether the sanction avoidance benefit of legal hold applications really exists – too many clients were saying that the sanctions were not really scaring them into action. And now, I am beginning to see a bit of a bifurcation in the legal hold applications market – vendors that offer a “complete” solution for the notification and tracking process as well as identification, preservation, and collection and those that offer a solution more targeted at just managing the notification and tracking process.

eDiscovery has, in many ways, made it to the mainstream. Thanks to email mismanagement and lack of corporate ethics, our market is in the news on a virtually daily basis. It therefore surprises some that so few organizations have taken significant measures to address eDiscovery. I did an informal poll of some clients to understand why and got some interesting responses. For the 15 or so clients I pinged on this issue, cost and IT issues were the major pains.

Elbow deep in a recent engagement, it occurred to me just how fragile most legal holds really are. A couple years back, one of my friends on the speaking circuit introduced me to a case that seemed to say that hold notification without some kind of verification process was insufficient effort. The case is In re HAWAIIAN AIRLINES, INC., Debtor. HAWAIIAN AIRLINES, INC., Plaintiff, vs. MESA AIR GROUP, INC., Defendant. Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF HAWAII 2007 Bankr. LEXIS 3679. The spoliation memo is located here. The lesson that I took away from Mesa’s experience with their data deleting executive was to notify then verify. That was a good starting point, but now I realize that this lesson extends beyond the matter level preservation requirements to include a company’s retention process.

If you have not heard, the Atlanta flooding forced the International Legal Technology Association (ILTA) to relocate to Las Vegas. The conference kicks off next week and I wanted to throw out some highlights to tempt you to join us. I invite everyone to my Monday panel “Early Case Assessment: The Benefit is in the Eye of the Beholder”. Duane Lites of Jackson Walker has recruited Tom Morrisey-Purdue Pharma, Scott Cohen-Winston & Strawn, Chuck Kellner and myself to represent different perspectives and scenarios on ECA.

Despite being a regular speaker on the eDiscovery conference circuit, this is my first time making the ILTA conference. The theme of the conference is Strategic Unity, expressed in social networking, new education initiatives and collaborative technologies. As a volunteer run organization, the tone at ILTA does not have the same frantic vendor driven character as Legal Tech has taken on. My panel session on ECA usage scenarios and perspectives seemed to go well, but that is always difficult to tell from the other side of the microphone. The top moments included Tom Morrisey’s “Voldemort, the software that cannot be named”, Chuck Kellner’s violation of the vendor profit oath and the agreement that there is no “ECA solution”, only features that support your ECA process. Imagine my surprise when Jim King dragged me over to the IPRO booth to proudly show me the Allegro banner proclaiming “Early Data Assessment”. Please forgive the iPhone picture quality…

Now that ILTA 2010 has wound down, I have been reflecting on the striking differences between this educational networking event and the ‘big’ tradeshow , Legal Tech New York (LTNY). ILTA is volunteer-governed industry organization, although it is managed by a full time paid staff. It describes itself as a peer networking organization and that was certainly a large focus of the event including a heavy emphasis on social technology to forge new connections. This creates a curious blend of grass-roots community organizing within a tightly structured event agenda, somewhat like a national Scout Jamboree. The core value to “maintain vendor independence” includes an admirable “No Sales Pitch” rule for sessions and social events. I was handed a ‘No BS’ button to go with my speaker’s ribbon as a clear reminder.