eDJ Migrated

For the first time in many years I am missing the EDRM Kickoff Meeting in St. Paul. Kevin Esposito is covering the project updates, goals and progress for us, but it still feels strange to not be anchoring a project meeting, even if I will continue to co-lead the new Testing project. Instead, I delivered the keynote to the 2011 LiveOffice user conference this morning. LiveOffice is the leading cloud email archiving company (Gartner 2010) and has had pretty incredible growth throughout the recent economic downturn. They asked me to speak to the attendees about the impact of eDiscovery on IT in 2011. This meshed well with their roll out of their new version of Discovery Archive. In polling the attendees, every single one had carried out discovery requests within the last year. Fifty percent were executing requests for Legal, while the rest allowed Legal to execute their own searches. Only a small portion were actively reviewing matters on the live data, but I could see the heads nodding as we discussed the prospect, it is definitely on the horizon for many of them. To organize my thoughts, I wrote a condensed speech (below) covering the primary points that I wanted to hit. The reality is that I can never resist opportunities to answer questions and transform a monologue into a dialogue.

Lately, it seems like predictive coding is all over the eDiscovery blogosphere. The most recent example is Ben Kerschberg’s entry at Forbes.com law and technology blog. When we wrote about the topic last fall, a majority of readers believed that predictive coding was not defensible. I took a new look at the data on our poll question and found that attitudes are evolving.

Last week, an unfortunate incident occurred in our industry: A blog post containing inaccurate information rocketed through the internet, creating its own misinformation and unrest. A blog post from Dominic Jaar of KPMG Canada implied that Judge Shira Scheindlin was calling for the US Immigration and Customs Enforcement (ICE) Agency to discontinue its use of a major eDiscovery industry application. The incident is unfortunate because the facts were not correctly reported initially and because the ever increasing use of re-quoted blogs, tweets and other social media resulted in widespread repetition of the error. Many of our readers have asked for our perspective on what happened, so we did some investigating with the principals and have our own opinions on the incident.

There are many reasons that the large SIs have not moved into eDiscovery with full force. First, eDiscovery requires legal advice. Plain and simple, there is too much potential liability for a large consulting firm to come in and tell a company what it is “reasonable” and “good faith” for eDiscovery efforts. Second, there is not necessarily a large, multi-million dollar software deployment that will always go along with eDiscovery. The Accentures of the world are used to dropping off a bus of consultants to spend months deployment enterprise software. In the eDiscovery world, consumers can spend $80K on a collection and processing appliance. Hard to convince a company to spend millions when it can spend less than $100K.

Recently, Iron Mountain announced that it might sell of its digital business unit and focus on its traditional physical storage strengths. Having watched Iron Mountain unfurl its transition into the digital world over the past decade, it’s not surprising that the company is retrenching. It’s not easy for a large physical storage company to become a software company. While many (including me) thought that the Iron Mountain brand name might translate well into the digital world, ultimately, the company was not able to turn acquisitions of small digital businesses (Stratify and Mimosa Systems) into a viable digital competitor.

Software vendors tend to be out a bit in front of a market in order to be well-positioned to capitalize when customer requirements mature. That’s why it was interesting to see Greg Buckle’s report from the Symantec Vision conference that eDiscovery is a major part of Symantec’s strategy going forward. The company is combining eDiscovery, data loss prevention, and encryption in an offering it defines as information governance. Other large software vendors couple eDiscovery offerings with content and records management, storage, and search offerings. From a market perspective, the reality is that eDiscovery is recognized as a major component of information governance. This creates some pragmatic challenges for enterprises that want to address eDiscovery challenges today, though.

The market has been awaiting word on where the assets of Iron Mountain Digital would end up. Previously, we speculated who the potential buyers might be and what the future might hold for Iron Mountain Digital. We now know the answer – Autonomy is purchasing the assets for $380 million. That’s not a huge multiple on the revenues of Iron Mountain Digital, but it’s still a big acquisition number in our space. Now we must wonder if this is good news, bad news, or something in between.

One of the first instructions that IT practitioners will hear from the legal department is “preserve everything”. It doesn’t matter what the context is or whether the information may or may not be relevant, at the first pass a lawyer will always tell you to preserve everything in sight. The problem with preserving information is that preservation is only half the battle – you need to be able to make use of it somewhere down the line and that’s a fact that sometimes gets lost in the shouting.

Internal retention battles are a good way to torpedo even the most defensible position in litigation. Preparing a cross functional team for working together at the start of a matter will pay dividends – both figuratively and literally – later in the case. As has been previously discussed here, “the beginning” is rarely where these teams are pulled together. The key to success is to determine an appropriate path no matter what stage of the matter you’re pulled in at. Taking inventory of your data and thinking about current and future retention possibilities helps to provide a framework for future decision making.

The smartest person that I’ve ever known was my mentor when I was living and working in Europe in the 1980’s. I learned a great deal from him about differences in personal management styles and how to build collaborative workgroups in technical environments. Of all of the people that I have known, he is the only one that truly had infinite patience while attacking key issues. Our strategic operating plans would literally stretch over years and as the headstrong ex-pat American executive, I would chafe at what I considered to be the glacial rate of progress. Each time that he saw I was getting frustrated, he would smile slyly and say, “You’re thinking about this as a business process. Remember - It’s not business, we’re creating art. Art takes time.”