Essays

Traditional discovery search applications like dtSearch and processing packages like Clearwell are usually offline while new collections are being indexed. Litsupport and legal personnel are used to being confident of the collections being searched at that moment. If you add new ESI to your matter, then you need to update the index before your search, right? But now that there are tools for searching ESI where it lives on live corporate servers and desktops, we introduce a relatively new wrinkle into search, index lag. Enterprise and desktop search engines run in the background and watch for new, deleted or changed files within the scope of folders that they are watching. The problem is that index updates are never instantaneous, which means that enterprise wide searches are never 100% complete.

In May, 2010, Piper Jaffray & Company was sanctioned $700K for failure to preserve emails. The company was fined $1.65 million in 2002 for the same issue. At that time, the company implemented new archiving procedures and software in order to ensure that the same mistake would not occur. I take two things out of this story. First, it could be that the lower fine for this infraction is due to recognition that a good faith effort to retain information was in place. And second, archiving technology by itself is not enough to ensure that all necessary information can be preserved.

FTI Consulting has joined the ranks of companies offering a solution specifically targeted at collection and preservation of Microsoft SharePoint information.

Recent discussions on Debbie Westwood’s Small Firm eDiscovery LinkedIn group have revolved around the results of the 7th Circuit’s pilot program to reduce eDiscovery costs. The focus of this program seems to be actual discussion at the Rule 26(f) Meet and Confer instead of the usual bilateral sets of demands that are misinterpreted or poorly translated back to the technical teams. The program reflects the ongoing efforts of The Sedona Conference® Cooperation Proclamation to “reverse the legal culture of adversarial discovery that is driving up costs and delaying justice”. This effort to make all the attorneys ‘play nice’ with each other does not address one of the critical assumptions that has crept into civil litigation as a whole. That is the assumption that only attorneys can or should directly communicate between the parties once litigation is filed.

One trend bubbling up recently is the need to control social networking content (e.g. Twitter, FaceBook, and LinkedIn) for compliance and/or eDiscovery requirements. The stories indicating this trend come from both the solutions side and the real-word side of things.

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.