eDJ Migrated

In reading the morning’s headlines, an interesting statistic stood out to me - 51% of lawyers have lost a case in the last 3 months alone because of eDiscovery problems. The source of this data is not clear, but it came through the Twitter feed of Symantec’s Enterprise Vault team. Taking the stat at face value, it’s astounding – eDiscovery problems as the cause of a lost case. There is something very disheartening about any case being lost on anything other than its merits.

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.

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.

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.

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.

One of the things that I love about publishing is the chance to be wrong and learn something new. Our industry and the technology that drives it is changing at an amazing pace. In the closing of my recent post about using Exchange Journaling for ongoing preservation, I mentioned the potential advantages of Nearpoint’s granular capture over Journaling as well as the monkey wrench Microsoft threw at them a couple years back. Indeed, Microsoft does not support parsing or extracting email from the Exchange database and transaction logs, except through a specific set of protocols. They phased out support for one of the generic protocols, ESE or Extensible Storage Engine API. This forced 3rd party vendors to either adapt or try to take full responsibility to their customer’s Exchange systems.

A recent post to the Yahoo! LitSupport group asked whether there were any published standards covering email deduplication hashing. The problem is more complicated that it appears on the surface. As several other search experts commented, the definition of a duplicate email and the actions that you take will vary based on the jurisdiction, matter issues and party demands. Under FRCP Rule 34(b), the requesting party may define the format of production within the scope of the Rule 26(b) and the terms of your Rule 26(f) negotiations. Both rules provide some exemption for duplicative productions, but there are arguments that can be made about deduplication within a custodian’s email or across all custodians.

The Electronic Discovery Reference Model (EDRM) projects meet twice a year in St. Paul for a couple days of concentrated work. This year’s gathering feels a bit smaller than year’s past, but all the projects seem to be making good progress. There were a good number of new, first time participants from law firms and corporations, reflecting the growing number of dedicated eDiscovery managers and specialized counsel. After a short status report from the project leaders, everyone adjourned to their chosen projects to work.

I was recently asked if I had a top ten list of guidelines are questions for a corporate legal department who is just starting to look at investing in some kind of information management, archiving or discovery solution. Although I do a lot of requirements and RFP engagements, I am usually brought in after the internal committee already has some idea of what they want. However, I frequently encounter clients that have latched onto a solution label without a true understanding of their own key pain points or what it will take to realize the ROI promised by this new technology. First and foremost, these corporations are already ahead of the curve because they have recognized the need and have made the decision to do something about it. Rather than trying to tackle all the different options and issues that span the different technology solutions, I want to limit this discussion to eDiscovery related technology, mostly because I believe in sticking to what I know best.