Essays

Old school eDiscovery professionals are used to hitting the big three conferences; Legal Tech, ARMA and ILTA. So I came to the AIIM Info 360 Expo without preconceptions to this conference focusing on ECM technologies, providers and adjacent services. The last several years have reinforced the message to the market that the money and investment is ‘going left’ on the EDRM lifecycle. Review costs still dominate the actual litigation spend, but we all know that discovery starts where the ESI lives, which makes information management initiatives and technologies the best long term bet. The conference is attended by IT admins, records managers and the providers offering anything needed to get records into a system. Every other booth seemed to offer some kind of Sharepoint based workflow application. Microsoft dropped a full training center into the middle of the conference floor and surrounded it with partners. It definitely took the ‘app d’jour’ prize.

As AIIM Expo comes to an end, I’m left feeling like the eDiscovery market is on the precipice of becoming a critical part of the information management market, but is not quite there just yet. There is an excitement and buzz about eDiscovery at the conference, but it is not quite yet a crescendo. Yes, there was an eDiscovery pavilion and we got to meet some cool vendors exhibiting there – Catalyst Repository Systems, El Fresko Technologies, iConect Development, Kroll Ontrack, and Planet Data Solutions. But, many of the mainstream eDiscovery vendors were not at the show at all, either as exhibitors or attendees. And, of the large software vendors present – EMC, IBM, Oracle, and Microsoft, eDiscovery was not an overtly featured capability at their booths. There was even a partner pavilion for Microsoft and the only partners talking about eDiscovery were archiving partners. As we’ve pointed out in other entries, there is a big opportunity for creating eDiscovery solutions for SharePoint; it’s a shame no one is getting out ahead of the curve on that.

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.