Essays

Although the AIIM Expo Discovery Pavilion had a modest start with six booths, that did give me plenty of time to visit with my neighbors and dig into their new features and offerings. The sheer size and diversity of Legal Tech tends to make it difficult to get real information at the booth. Everyone is trying to schedule you for an offsite demo and jump to the next person in line. I got to talk shop with the good folks at Catalyst and Planet Data in a way that would not have happened at one of the major eDiscovery shows. The Catalyst team has been busy integrating new conceptual and organizational technology into the user workflow of their CatalystCR platform.

Hybrid is a popular term right about now, and not just because those kinds of cars are considered environmentally friendly. Rather, we are seeing an increase in the number of solutions that are a hybrid combination of on-premise software and software-as-a-service (SaaS).

The management and review of native files (ESI) generally requires the extraction of internal/external metadata and the readable text to be indexed for search. Most types of container or multipart files such as ZIP or PST containers must be broken out into individual files for this step and subsequent productions. This is the foundation of what our industry calls Processing. Most counsel, corporate IT and judiciary seem to operate under a presumption of magical perfection in these software and services of specialized eDiscovery providers. Most of these ‘built for purpose’ applications manage to avoid the basic MS Windows issues that drop or alter date fields, but the infinite variables associated with ESI formats and contents make it nearly impossible for any system to automatically get everything right, even if we could agree on what ‘right’ is. Although I had heard about Planet Data’s acquisition of the Cerulean Engine™, the time at the AIIM 360 Expo gave me an opportunity to understand the deep processing experience that accompanied the software.

The four key parts that both on-premise and cloud-based models share: consumption (how end-users interact with the appliation); creation (how developers build the application); orchestration (how parts of the application are pulled from the app server); and infrastructure (where key elements of the app like servers and storage live).

The eDiscoveryJournal (eDJ) search and syndication engine kick started to life just three months ago at Legal Tech New York 2010. Your feedback and the increasing traffic tell us that the eDiscovery market is indeed hungry for relevant news and perspective. The eDJ engine collects 100-200 new items per weekday that we manually review and categorize. In just three months, eDJ has accumulated over 3,300 web posts covering news stories, blogs, press releases and new sites. We have published over 60 original Journal articles, keeping to our goal of a new Journal piece every day of the working week. All of this is a lot of content and so we have just added some new tools to your user profile that will enable you to what you want to hear about and how you want to receive it. Everything we create or find on the web is manually coded with 43 eDiscovery concepts.

There is a definite sense of excitement in the eDiscovery market. Corporations are beginning to deploy tools for in-house collection and preservation and early case assessment. Vendors are seeing revenue increases and strong growth numbers. M & A activity is on the rise, witnessed by Iron Mountain’s acquisition of Mimosa and Doar’s acquisition of Inference Data. It’s easy to get caught up in the excitement and think we’re on the cusp of solving the eDiscovery problem. But, now is also a good time to make sure that due diligence is served when implementing processes and tools to address eDiscovery.

There were a number of cases in the last decade that most of us thought would be the impetus organizations needed to take eDiscovery and information governance seriously. Two of the high-profile cases were the Zubulake case and the Morgan Stanley case. In the Zubulake case, $20.2 million in punitive damages were awarded to employee of UBS Warburg partly because the jury was instructed to believe that non-preserved evidence likely contained incriminating information. In the Morgan Stanley case, $1.45 billion was awarded to Ronald Perelman after a judge issued a default judgment against Morgan Stanley due to eDiscovery failures. Again, the assumption was that non-preserved evidence was assumed to be incriminating. Since then, there have been many other cases involving sanctions, but with many of the cases, the actual sanctions don’t grab the attention of large organizations.

According to the eDiscoveryJournal analytics, many of you are corporate IT administrators trying to understand these new eDiscovery requirements that your legal department keeps talking about. You provide technology and infrastructure while balancing business requirements against the total cost of ownership. Legal is bound by a different balancing act, cost against risk. This is a fundamental difference between a business unit asking for a document management system and collecting the ESI from twenty laptops for litigation. Many IT administrators tasked with executing collections from their systems have not been given a basic, plain language explanation of the legal requirements for collecting identified ESI when it may be presented as evidence at a later date.

My first article on corporate data collections focused on preserving the content, container and context of native files as found on network shares and desktop folders. Discovery requests are increasingly targeting email archives, content management systems and other semi-structured data sources. Most of these sources include search and retrieval features, so one could assume that this makes them a safer candidate for in-house collections. This is not automatically true and is definitely worth talking through some of the common problems that can lead to incomplete or altered retrievals. The first thing to realize is that these systems were not designed to comply with legal discovery requests as found in the United States. The search and retrieval functionality was added to support a business user seeking to find a few specific email or an IT administrator restoring a larger set of items that were either lost or need to be transferred to a new user. Both of these scenarios stress quick, simple search without needing to verify the accuracy or integrity of the search or restoration.

Conducting defensible eDiscovery collections can be challenging, but will pay off in both the near- and long-terms. What any organization does depends upon their specific maturity level and requirements. In general, though, organizations that want to take control of eDiscovery collection should: