Essays

I have always contended that the estimates of the true volume and cost of eDiscovery compliance resembled the proverbial iceberg. The Socha-Gelbmann Survey, Gartner Magic Quadrant and Forrester Wave only deal with the small minority of matters that rise above the waters because their particular size or risk forced the parties to treat them with due diligence. The recent run of judicial sanctions and caselaw have focused entirely on preservation and search criteria issues, but they have raised corporate awareness about the difficulties associated with desktop preservation and collection. I have seen this awareness translated into corporate clients exploring their options, if not actually conducting RFP exercises in search of a solution.

In some further eDiscovery market shifting, Kroll Inc was acquired by Altegrity this week. Kroll’s Ontrack division is one of the leading providers of eDiscovery solutions. It’s no secret that Kroll was for sale (it wasn’t a great fit with parent company Marsh McLennen) and that the price was lower than shareholders would have liked. Most of the pundits out there seem to think that Altegrity is a good landing spot for Kroll. I don’t disagree, but I do wonder what the future holds for Kroll Ontrack, specifically.

There is more news of market consolidation with the announcement that Autonomy will buy CA’s Information Governance division. CA slowly built the IG group with the purchase of iLumin in 2005 and then MDY in 2006. That gave CA the archiving and records management capabilities necessary to have the information governance foundation. Sadly, CA was just never the right fit and the information governance message was perhaps a little bit ahead of its time. Autonomy, meanwhile, doubled-down on eDiscovery with laser focus and has emerged as one of the most successful companies in the industry due to that commitment. It now has even stronger records management capabilities, even if it also has to deal with supporting a lot of duplicate technology.

GM has been asked to preserve all electronic communications instead of deleting them in accordance with its 60-day retention policy. A 60-day retention policy with no backup program in place is just another example of companies instituting retention programs that don't help the business and that virtually ignore good eDiscovery practices.

Howard Reissner, CEO of Planet Data, forwarded me new eDiscovery decision with best practice implications, Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). Being elbow deep in an ugly client issue, I did not get around to digesting the case until well after Ralph Losey, Craig Ball and others have properly dissected it. So I missed the scoop and have to settle for chewing over some of the crumbs in one of the more interesting recent discovery decisions. Stepping aside from the legal wrangling about privilege waiver, I always enjoy getting insight into the raw metrics and burden of litigation that can be dissected publically. Start with the fact that 1,638 GB were collected via forensic imaging from 29 custodians. That means beginning with roughly 60 GB/user. Typical processing at $350-500/GB could have run the Feldman $500-750k just to get it ready to filter and search by their provider, Innovative Discovery. Although the actual file/email count was not given in the opinion, we can roughly guess that it was between 8 and 12 million individual ‘documents’. Even assuming that you can drop 50% in system files and the usual filters, Felman was still staring at a multimillion dollar manual review.

AccessData announced it will merge with CT Summation to form a single company, AccessData Group, LLC. The goal of merging the two companies is to deliver a solution capable of addressing all phases of the EDRM model. While the newly formed solution will touch the full spectrum of the EDRM, AccessData Group will face stiff competition from best-of-breed point solution providers, as well as larger enterprise software vendors, in a market where corporations are not necessarily decided on whether an integrated solution or a point solution is the right choice.

Yesterday I was the guest speaker for the monthly meeting of Houston Association of Litigation Support Managers (HALSM). When we polled for topics of interest, the first request concerned how to position and explain the value and role of outside service providers to attorneys at the law firm or corporate legal department. The recent economic downturn put pressure on litigation support staff everywhere to do more with less. Management are asking hard questions like, “Why do we need vendors if we have you?” Or worse, “If we have to use a vendor, why do we need you?” We had the highest HALSM meeting attendance in memory with 25-30 folks packed into a large conference room for the lively discussion.

Everyone talks about the ‘explosive growth’ of discovery collections. Every once in a while we get a glimpse behind the curtain at the sheer size and complexity of large matters. Browning Marean posed a question to the EDRM Search project that resulting in my wasting an entire afternoon dissecting the 511 page examiner’s report from In re Lehman Brothers Equity/Debt Securities Litigation, 08-cv-05523, U.S. District Court, Southern District of New York (Manhattan). Now I do love to geek out on metrics of all kinds, but what drives me is trying to understand the impact of numbers in context. In this case, we get to see the actual search criteria created by 20 Jenner & Block attorneys to find everything related to the downfall of the investment firm.

When lawyers begin looking at what keywords are important for identifying potentially responsive information, the process seems fairly straightforward. Look at the key issues; brainstorm on concepts, words, and synonyms; select the keywords; conduct the collection. Tracking this process, however, can be cumbersome. Imagine trying to explain how you generated a keyword list based on several hours of brainstorming without detailed notes or a virtual recording of the brainstorming sessions. Optimizing keyword selection can help to make a cumbersome process more transparent and scientific.

Collection tools are sophisticated enough now that organizations should be able to centrally manage collection efforts for 90% of what needs to be preserved. There will be the need to take forensic images of certain local machines, but a good information management or information governance program should cover most organizations and make the collection process smoother, more efficient, and defensible.