eDJ Migrated

At the recent ILTA 2010 conference I managed to get briefed on quite a few new product offerings. I wanted to pass along the highlights quickly to keep them timely. I may follow up some of these snapshots with full deep dives, but I will stick to the high level takeaways. Let’s get right to it.IPRO is finally taking some strides toward integrating products into a single platform that share the Eclipse database backbone. They have released an ‘Early Data Assessment’ application named Allegro built on Windows Presentation Foundation for a dynamic, better interface and a completely new processing engine. IPRO conservatively estimates 250 GB per day on a laptop or up to 750 GB on a workstation, all without exploding or copying email or file containers. IPRO sells software, not appliances, so performance will vary with your hardware. Like many recent performance claims, the devil is in the details of the test collection and hardware. Providers seem to be very concerned with ingestion performance since NUIX broke the 1 TB per day threshold.

In order to keep my ILTA feedback as fresh as possible, I have decided to try a combined post that just pulls the highlights for a number of the providers that briefed me at the conference. I expect to follow up most of these highlights with a more in-depth piece after the full demo. I have pretty much given up on trying to do full product demonstrations at conferences. You just do not have the time to do them justice in the midst of the hustle and bustle. Nextpoint brings a true Saas/cloud offering to the market with their Trial Cloud, Discovery Cloud and Cloud Preservation web products based on Amazon web services. Their $25/GB/month flat pricing definitely challenges the established players and makes an interesting option for small firms or companies with matters below the usual hosting cost/benefit thresholds. My experience with raw internet transfer limitations says that Fedex will be making a lot of money for matters over 5 GB in size, but everyone seems to be used to shipping hard drives these days anyway.

There is a lot of focus on software applications in eDiscovery – ECA, identification and collection, legal hold. Not to diminish the importance of these applications, but often lost in the hype is the critical importance of the storage hardware and software that support these eDiscovery applications.

Here is the last batch of takeaways from my briefings at the recent ILTA 2010. I have been able to schedule deep dives on some of the new offerings, so I hope to bring you more details on the new toys.

eDiscovery is one of those markets that feels like it fits into the traditional software world, but has enough idiosyncrasies to require expert services. Those services have usually come from law firms, EDD service providers, or consulting companies. Such companies offer experienced litigators, forensic examiners, project managers, and other eDiscovery-related experienced professionals that are critical to executing processes correctly.

While pontificating on industry trends at ILTA, I joked that Fedex was the ultimate beneficiary of corporations that take their eDiscovery to the Cloud. Scant weeks later, my good friend Pete Pepiton at Mimecast responded to my ad hoc remark with the headline, “Fedex’s Profit Doubles”. We have had various Secure File Transfer Protocols for years, yet the practical bandwidth limitations of most internet transmissions have taught us not to try sending more than 5 GB of files via the web. In plain language terms, the web was just not designed for the kind of large file burst capacity transfers that typify an eDiscovery collection. There is a good discussion of these limits by Stacey Higginbotham here.

Officially, the U.S. recession started in December 2007 and ‘ended’ last June. Unofficially, we all know of talented people who are still looking for work. Anecdotally, the eDiscovery market seemed to bottom out in the third quarter of last year. I know that I saw a lot more resumes floating around LegalTech 2010 than in previous years. That led me to wonder who had closed shop or been acquired in the last couple years. I figured that one of the better ways to chase this list down would be to compare the LTNY Exhibitor lists from year to year. This exercise turned up some interesting numbers and facts.

While reviewing this morning’s eDJ web findings, I came across a good case analysis by K&L Gates regarding a privilege waiver issue in DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010). The actual opinion seems to only be available through Westlaw at this time, but the analysis of the fact pattern and findings are worth a read. An eDiscovery consulting firm employee used his work computer to send privileged email to his own counsel. These emails were later produced in the computer image and the subject of the waiver dispute. The decision pivoted on the question of how the employer interpreted their computer usage policy. This particular case highlights the inherent conflict between the U.S. corporate usage policies and employee privacy.

The Cowen Group recently put out some very interesting research showing that 87 of the AmLaw 200 law firms have eDiscovery practice groups. The next step in Cowen’s research is to look more granularly at what those groups are doing, investments those groups are making in technology and people, and the level of authority and traction the groups get within the firms. I think this statistic points to the beginning of some maturation in the eDiscovery practice realm. While one might say that the real sign of maturation will be that close to half of Fortune 1000 companies have eDiscovery practice groups, it is really the law firms where this trend should begin.

As corporations invest in the business process of litigation preparedness, many wrestle with the options for ongoing email preservation. I thought that it might be worth a quick look at some of these options and some potential issues that different methods pose. The first choice is whether the preservation method is user driven or an automated system. We all have heard the horror stories about user non-compliance. In Re Hawaiian Airlines is a good example and this U.S. Courts conference paper provides some context. However, a well implemented and documented user driven legal hold process may be the right solution in many circumstances. When you have a small number of key custodians and the matter relevance criteria is very clear, it may be reasonable to allow custodians to keep emails in a special folder. Automated systems have their own issues, the main one being overly broad or inaccurate preservation criteria.