Essays

Transparency – it’s a word we hear often now. Merriam-Webster defines the term transparent as being “free from pretense or deceit,” “easily detected or seen through,” or “readily understood.” The Obama Administration talks about transparency and government; about how government should be accountable and able to share information about its operations with the public. The FRCP Amendments aim to hold organizations accountable for transparency, for being able to share information when required. And, we at eDiscoveryJournal aim to enforce transparency within an industry shrouded in complexity (and peppered with non-standardized terms and phrases).

Although my consulting practice focuses on corporate legal departments and Biglaw firms, expert work does not discriminate against small firms. Following a recent consultation, an attorney from a small three man firm reached out to me for advice on basic software to handle their modest needs. It had been a while(quite a while) since I had checked the options and pricing for technology appropriate for this part of the market. I was seriously out of touch on the per seat pricing for CT Summation’s iBlaze and the firm definitely did not want any volume or subscription based licensing. They wanted to buy software, learn to use it and get on with practicing law. This exercise reminded me of Craig Ball’s EDna Challenge back in January. My challenge was about equipping a small or solo firm with basic eDiscovery technology without breaking their budget.

Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-04-05 16:16:23  From time to time, you get asked a question so many times that it makes sense to just go find the answer.  If only it were that easy, but I’m going to try.  Lately, I’ve been asked about the need for forensic collection a lot.  Organizations want to know how forensic collection fits into their [...]

In several recent posts, Barry and I have called out the challenges of collecting dynamic content from web based collaboration platforms, focusing on Sharepoint as the market leading platform. It is definitely on the minds of corporate legal departments and providers alike. Our articles prompted the team at Kiersted Systems to request a demo and briefing on their newest Sharepoint collection and review offering. Although we do not do classic product ‘reviews’ at eDiscoveryJournal, I do like to explore the implications of new methodologies and technologies. Sharepoint 2010 itself is new to the market and brings new capabilities to manage legal holds on records as well as more robust search and export features. The new ability to make a ‘preservation copy’ within Sharepoint is probably the highlight feature to take note of. They have wrapped a bit more workflow and specific action templates around holds, search and export, but the basic item level functionality seems unchanged.

eDiscoveryJournal will be at the AIIM Expo from April 20-22, 2010. The conference will highlight how information management professionals can take leadership roles in eDiscovery initiatives.

I had a chance to speak with Lance Sloves, a Director at Computer Forensic Services, Inc. about forensic collection. He points out that, first, it’s fairly rare for any organization to have well-rounded or proper policies and processes in place for good, defensible collection – that is just the way it is. Second, few organizations possess the expertise in proper data and forensic collection that is required in today’s eDiscovery market. The fact is that many litigators are getting smarter and smarter about collection – and some can smell blood when something has not been properly vetted. And I’ve yet to meet an IT manager who relishes the thought of being an expert witness.

When you consult on discovery issues, you cannot avoid running into retention management initiatives, no matter how hard you try. One of the first Interrogatories on almost every matter asks for a copy of the corporate retention policy and supporting documentation concerning record systems. The problem is that records are no longer boxes of old files kept in offsite storage. In the modern business environment, every piece of ESI has the potential of being considered a ‘record’ or at least evidence. One of my more frequent client conversations starts with, “We need to have a system to apply retention periods so that I can get rid of anything that I do not absolutely need.” Counsel views the seas of unstructured ESI as potential evidence that will cost $1-3 per item to review. So the motivation behind legal’s push for retention management is to reduce discovery cost and risk. The actual goal is to destroy non-record ESI as fast as possible. To that end, I have come to the conclusion that trying to define records and apply retention periods is tackling the problem from the wrong end of the equation. A program of ‘Destruction Management’ that categorizes and destroys non-records seems to be a much more practical initial step toward overall information lifecycle management.

Enough has happened – FRCP Amendments, precedents, scandals – for organizations to understand that it’s time to act vis-a-vis eDiscovery. Tools are evolving to provide real, actual value (despite the fact they still have developmental challenges). And, with an economic recovery, there will be money to spend on addressing the challenges.

In Part 1, I outlined the typical litigation profile questions that would support a realistic needs assessment for a solo attorney or small firm. From a the set of requirements, we explored the basic software packages through the EDRM lifecycle while calling out small firm perspectives. In the intervening weeks, I have tried to track down and get hands on new applications and SaaS offerings that might meet my challenge criteria. The nice folks at QD Documents got me a trial license for their $500 package. The product definitely gives a solo attorney the basic organizational space to code in documents, exhibits, transcripts, filings and all the other working pieces of a matter. Unfortunately, it is really just a nice, clean document tracking and management space, rather than an eDiscovery processing platform. I suppose that you could put URL links in field for native files, but that just feels too much like Concordance. So a good, cost-effective case management tool, but not an answer to my challenge.

On the heels of my writing about the perfect storm brewing in eDiscovery comes good news for all in the market. Recent survey results from the Cowen Group indicate a rise in jobs, plans to purchase software, and plans to purchase outsourced services. The good news is that the data points to wins all around in the market. Organizations benefit by taking proactive steps to reduce the cost of eDiscovery. Software and service providers benefit from increased revenue. And eDiscovery professionals benefit from increased work options and better employment.