Historical Essays

Centralized control of information is at the heart of information governance. In many ways, though, centralization runs counter to the realities of the working world where information must be distributed globally across a variety of devices and applications. The amount of information we create is overwhelming and the velocity with which that information moves increases daily. To think that an organization can find one system in which to manage all its information is preposterous.

In the normal course of business, I am excited to see EDRM project content incorporated into caselaw, articles, research and by other experts in eDiscovery, especially when it is a piece that I contributed to. In a recent Law.com piece titled “A Strategy to Sample All the ESI You Need” attorney Nick Brestoff leveraged Section 9.5 of the EDRM Search Guide to propose forcing the opposition to produce samples of ‘irrelevant or nonresponsive’ ESI. His proposal is a stark reminder of the adversarial nature of our business. As one of the primary contributors on the validation sections of the Search Guide, I can assure you that I envisioned the producing party using sampling and the other methods to maximize precision, accuracy and completeness of discovery searches. I agree with Mr. Brestoff’s demand that parties disclose the scope, confidence levels and criteria used to sample. However, he basically challenges the producing parties ability or right to determine relevance and presents ‘three easy steps’ to demand all ESI not produced. That seems to effectively negate relevance review completely and excludes only duplicates, system files and privileged ESI.

Clients often bring up the issue of creating a business case for eDiscovery because it’s such a difficult activity. Despite the fact that solutions on the market can help save a lot of money, it’s hard to justify spending hundreds of thousands of dollars upfront to address eDiscovery costs. It shouldn’t be as hard as it is, but such is the grim reality in the complex world of corporate eDiscovery. I believe that much of the difficulty comes from the lack of “ownership” for eDiscovery.

Barry’s article, “Who Owns eDiscovery?” focused on the challenges of corporate investment in the overall eDiscovery process without clear ownership between IT, Legal, Compliance, Records Management and even the business units. It occurred to me that there is an entirely different ownership battle being waged over who is actually managing and performing the actual document review. The law firms have traditionally owned the review process and born the risk of inadvertent production of privileged and unprotected confidential documents. With eDiscovery slowly evolving from an ad hoc reactive fire drill into a managed business process, corporations have begun to take back the upstream or ‘EDRM Left’ phases of the eDiscovery lifecycle. This is happening at the same time as public corporations are experimenting with Business Process Outsourcing (BPO) and SAAS solutions for infrastructure and internal services.

While conducting my discovery scenario testing on Exchange 2010, I found that Microsoft had made two steps forward along with what seems like several strange steps back. In the early days of corporate networks, personal computers and enterprise software, administration was reserved for wizardly geeks who had mastered various esoteric command line languages. I recall the blessed feeling of relief when I stumbled through my first administrative GUI (Graphical User Interface). The admin GUI brought mastery of systems and applications into the realm of the merely mortal user. When evaluating software, I tend to view applications that force the user to learn command switches and syntax as immature. As a counterpoint, I acknowledge that the command line functionality is fantastic for an advanced user to run batch scripts or even automate functionality. When I first looked at Exchange 2010 SP1 Beta (only version available at the time), I was astounded to find that they had killed off ExMerge, the administrative utility used for years to import and export PST files from mailboxes.

We’ve been writing about the issue of “ownership” in eDiscovery lately and it’s prompting some good discussions. Earlier posts about general ownership of eDiscovery and ownership of document review have led to various debates such how to best implement eDiscovery processes and solutions within corporations and the potential change of business models for law firms. Only one thing is clear – that there is little clarity in our market. These debates will continue to rage for near-term because most organizations are still fairly low on the eDiscovery learning curve.