eDJ Migrated

We are pleased to announce that independent eDiscovery counsel and consultant Kevin Esposito will now be contributing blogs as an eDJ Expert. For those of you who have enjoyed listening to his unique presentation style at conferences, EDRM Committees, Sedona and other eDiscovery gatherings, we know that you will continue to enjoy his direct and uncompromising perspective. Kevin brings with him over 12 years of eDiscovery experience, having managed the litigation support and IT infrastructure operations within global Fortune 50 corporations. While on the corporate side of the house, he became well known for his technology leadership in the logistics world and his efforts at redefining litigation support processes in the pharmaceutical industry. For the past five years, however, clients in those areas as well as the manufacturing, financial services and entertainment sectors have been quietly relying on his operational and legal guidance as an independent discovery counsel. He has forged a unique niche by helping companies and law firms to meet their joint discovery obligations by combining the talents of the client, support vendors large and small and the judicious application of many of the popular litigation support tools and technologies. He and his team have learned how to help companies safely and successfully negotiate the eDiscovery minefield through their daily contact with vendors, staffing groups and technology suppliers. He will assist our eDJ readers by providing a pragmatic view of issues large and small, both legal and personal. I have had the pleasure of partnering with Kevin on consulting engagements covering litigation system audits, RFP generation and management and eDiscovery/Records Retention lifecycle projects. He brings both operational experience and a slightly different personal focus to our blogs and research papers. Kevin can be reached here at Kevin@ediscoveryjournal.com. We hope you that you enjoy his contributions.

Everyone knows how to send an email and Blind Carbon Copy (BCC) certain recipients separately from your public TO/CC recipients. I responded to a recent question on the Yahoo! LitSupport list regarding the best practices for production of email with BCC information. My response kicked off several offline questions about the actual nature of BCC information, preservation of such information and deduplication of email with/without BCC recipients. I have had to wrestle with this from an audit and a product development perspective several times, but it seems worthwhile to try to write a decent overview of BCC and eDiscovery.

I recently finished a research paper that takes an overview of Enterprise Search for Discovery. My intent was to aggregate, organize and condense corporate client discussions around this area over the last year. Enterprise search and preservation collection platforms are the second most frequent technology RFP engagement for my corporate clients after archiving systems. The technology providers have many different approaches, architectures and features that can confuse the prospective buyer. After having the same discussion so many times, I decided to put together a low cost ($29) overview report to at least define the options, potential benefits, costs and things to consider before investing in enterprise search. Enterprise search tends to fall into two main indexing camps, selective vs. enterprise wide. One element from the report is the potential index size, as indexes like to live on Tier 1 class storage (SAN, Direct Attached or other top class storage).

I cannot count the times I have heard something along the lines of, “I just want to wave a magic wand and make all those bloody PSTs go away.” I heard it again just last week. At least this time the speaker was well along the actual process of migrating the email so that the PSTs could be disabled and done away with. You could use an email archive platform, Sharepoint, ECM system or even Exchange 2010 (just watch out for the storage balloon!) to manage and expire email designated as corporate records. Pick your poison, but you still have to deal with the years of accumulated email that your users have stashed in all those handy Personal Stores (.PST and .OST files). Many categorization technologies have promised to magically designate items as records and cull out all the dross. I have yet to see one deliver on real, heterogeneous legacy email outside of very structured environments where users already have to manage communications and documents. Typical corporate goals include the defensible destruction of non-essential email, central management/search of designated records and minimization of eDiscovery/infrastructure costs. I wanted to share some of my lessons learned from past PST elimination projects, both successful and the rescue attempts.

The phrase ‘digital landfill’ seems to resonate with clients. Most have been in a state of analysis paralysis concerning email and native file destruction since the 2003 Zubalake decision. Many have never had any kind of real retention policy or workflow that would enable or encourage users to clean up their digital trash. Yep, I just called all those spreadsheets, presentations, reports and other ESI flotsam and jetsam cluttering up your NAS trash. The combination of the 2002 criminal Enron investigations and Judge Scheindlin’s decision effectively froze record destruction in energy trading companies. At the time, I thought that the combination of plummeting storage costs and the potential of criminal charges from the 2002 Sarbanes-Oxley Act meant infinite retention for public corporations. Time and common sense disproved that notion, but I am now seeing corporations flinching from the last decade’s worth of digital debris littering their enterprise landscape. The user’s capability to create ESI far exceeds our ability to effectively categorize, manage and expire.

A common theme through products making the jump from processing engine to eDiscovery platform is the bolting on of a legal hold notice module or wizard. Hold notices are the official kick off of the eDiscovery tailgate party. When I created the first incarnation of the eDJ Tech Matrix back in 2009, only Atlas (now acquired by IBM) and Exterro offered a full featured workflow with a database back end. Some of the matter management players could send emails, but none had any market recognition for that limited functionality. I had many corporate clients consider these relatively high priced specialty applications, but only those with relatively heavy litigation/regulatory profiles or very low risk tolerance implemented them. Many of my corporate clients created home grown workflows with a single web, Sharepoint or SAP-type developer. Still, these two specialty players both gained steady market share and added rich features to support corporate legal management of preservation efforts. Just in time for Legal Tech NY 2011, I saw the basic hold notice workflow show up in AD eDiscovery, kCura Method, StoredIQ, Guidance EnCase eDiscovery and many more. A quick check of the eDJ Tech Matrix shows 25 products with legal hold notice functionality today and I will bet that this blog reminds several more to update their listings.

I try to read the actual opinions on cases that providers seize onto. Many times the actual fact pattern and conclusions are subject to interpretation. More importantly, there are often little facts or findings that are fascinating. In the case of Rosenthal Collins Group, LLC v. Trading Techs. Int’l, No. 05 C 4088, 2011 WL 722467 (N.D. Ill. Feb. 23, 2011), I chased down this rabbit hole to figure out exactly who had reset the last modified dates and why. The summaries all mention the plaintiff’s “agent” and I expected to find a service vendor, IT contractor or even a hard up consultant in the actual opinion. Instead, I found a tech savvy programmer/contractor/custodian who used utilities to forensically wipe all of his media and then reset his dates by changing his system clock. Bill Tolson’s blog title, Spoliation does not require purposeful destruction of evidence, focuses on District Judge Coleman’s $1,000,000 sanction and clear statements that the plaintiffs were responsible for their agents actions.

One of the challenges in the eDiscovery market is the need for organizations to keep best practices to themselves. There are few organizations willing to publicly share the details of eDiscovery programs. True, one of the reasons for this is the fact that most eDiscovery programs are very immature. But, the primary reason is risk control – there is very little benefit to going public with eDiscovery practices and a lot of downside (e.g. losing the ability to argue undue burden because the whole world knows about your search capabilities). Thus, I was very happy when I found someone from a top telecomm company willing to share some lessons learned (while I can’t share name or company name, I can share some very interesting knowledge nuggets)

After watching the IBM Watson debut on Jeopardy, I got to thinking more and more about computer intelligence. I’ve been watching the content analytics space for a long time and have seen up close both the potential for analytics to change the world and the skepticism with which many humans view analytics. When I began covering eDiscovery, it seemed to me that there was finally a market in which content analytics could make a real impact and find some traction. This is especially true in Early Case Assessment (ECA).

A recent New York Times article gave eDiscovery some primetime coverage. The focus of the article was more macro-level: given the software tools to automate aspects of document review, are we ultimately creating less high-paying jobs for lawyers? As expected of a mainstream press article on eDiscovery, only broad strokes were sketched. The article does propose a very good and timely question. The elimination of high-paying jobs could have a potentially devastating impact on our economy. From my perspective, what was missing from the article was the potential for software tools that replace document reviewers to create another wave of high-paying jobs (that are different because they aren’t “lawyer” jobs).