Essays

The archiving market is picking up steam, driven by a huge interest in cloud-based solutions. Cloud-based archiving providers offer virtually all the features of on-premise archiving – eDiscovery search interface; end-user access to email; compliance monitoring interface; storage management; legal hold. About the only thing cloud-based vendors don’t offer is mailbox management (stubbing)…and with the introduction of Microsoft Exchange 2010 to the market, the need for mailbox management is virtually dead. Still, though, there are valid concerns with cloud-based archiving – security; location of data; encryption; regulatory or legal requirements to store certain data on-premise; speed of document retrieval.

As some of you might recall, I briefly ran Attenex’s services group before the potential FTI acquisition reminded me how much I liked to work for myself. I always liked Document Mapper, aka ‘the Petri Dish’, and wanted to expand the usage of their conceptual clustering, social networking and other visual analytics beyond the review interface. The FTI Technology team has accomplished this by combining three products under the Ringtail Analytics brand. Even better, they are breaking free of the volume based licensing that has dominated the market for far too long. Corporations can purchase these add-on Ringtail modules via a traditional enterprise license. The idea is to apply a variety of analytics on the early assessment samples and against collections as large as a million items to support ECA, search creation, processing parameters and to optimize automated review sets management.

Every day new products and service bundles enter the eDiscovery market. I know this because of the constant feedback that we get from articles saying, “But we do that! Why didn’t you mention us?” The reality is that I cannot list every product that has guided search, conceptual folders, etc in every article. So I try to pick 3-4 example products with as much diversity as possible. I could have called out Stratify, Recommind and many others in my Guided Search article. The good part about all this feedback is the constant opportunity to be briefed on new versions and products. For many years, Autonomy and Nexidia have had the only enterprise level audio search built for discovery (and I am sure that I will now hear from others). The team at MerlinOne briefed me on their new hosted review platform going live in August. Lo and behold, their offering includes a new, fixed fee option for dealing with large collections of voicemail, meeting minutes and other audio/video collections.

There are some that think that Google’s problems with the implementation of email for the City of Los Angeles will be a setback for cloud computing and Software-as-a-Service (SaaS) vendors. However, this is not going to kill cloud computing. Rather, it’s going to put the focus on aspects of cloud computing that are tricky and give Google’s competitors kill points and issues to build their marketing around.

Legal hold is one of the hottest eDiscovery topics of 2010. First, we saw legal hold applications featured prominently at LegalTech in New York – it seemed like every vendors was offering some kind of solution for preservation. Next, we had the Montreal Pension plan opinion, aka “Zubulake Revisisted,” in which Judge Shira Scheindlin hammered home the need for companies to have a written notification place in plan to let custodians know they have an obligation to preserve information. After that, we got a lot of pundits (eDJ included) questioning whether the sanction avoidance benefit of legal hold applications really exists – too many clients were saying that the sanctions were not really scaring them into action. And now, I am beginning to see a bit of a bifurcation in the legal hold applications market – vendors that offer a “complete” solution for the notification and tracking process as well as identification, preservation, and collection and those that offer a solution more targeted at just managing the notification and tracking process.

eDiscovery has, in many ways, made it to the mainstream. Thanks to email mismanagement and lack of corporate ethics, our market is in the news on a virtually daily basis. It therefore surprises some that so few organizations have taken significant measures to address eDiscovery. I did an informal poll of some clients to understand why and got some interesting responses. For the 15 or so clients I pinged on this issue, cost and IT issues were the major pains.

It’s always great to hear about interesting use-cases for eDiscovery technology, especially when those use-cases prove out benefits that go beyond just eDiscovery. During a recent briefing with Index Engines, the company told me that many customers are using the product for tape remediation initiatives. Essentially, these customers know that there is a ton of information sitting on backup tapes somewhere. This information is both costly to store (the tapes have to live somewhere) and risky – there is the risk that the tapes will have to be restored for eDiscovery (also not necessarily cheap).

Elbow deep in a recent engagement, it occurred to me just how fragile most legal holds really are. A couple years back, one of my friends on the speaking circuit introduced me to a case that seemed to say that hold notification without some kind of verification process was insufficient effort. The case is In re HAWAIIAN AIRLINES, INC., Debtor. HAWAIIAN AIRLINES, INC., Plaintiff, vs. MESA AIR GROUP, INC., Defendant. Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF HAWAII 2007 Bankr. LEXIS 3679. The spoliation memo is located here. The lesson that I took away from Mesa’s experience with their data deleting executive was to notify then verify. That was a good starting point, but now I realize that this lesson extends beyond the matter level preservation requirements to include a company’s retention process.

When eDiscovery first hit the scene, many of us in the analyst community predicted that enterprise content management (ECM) vendors would ultimately be the big solution providers that win out. It seemed like records management would be the right way to proactively manage information for eDiscovery. But, a funny thing happened on the way to forum – ECM hasn’t yet won out. In fact, no one category of solution has yet to emerge as the big eDiscovery winner. But, a recent Greg Buckles comment on my article about eDiscovery technologies being applied to other use-cases really got me thinking about how our market is evolving.

If you have not heard, the Atlanta flooding forced the International Legal Technology Association (ILTA) to relocate to Las Vegas. The conference kicks off next week and I wanted to throw out some highlights to tempt you to join us. I invite everyone to my Monday panel “Early Case Assessment: The Benefit is in the Eye of the Beholder”. Duane Lites of Jackson Walker has recruited Tom Morrisey-Purdue Pharma, Scott Cohen-Winston & Strawn, Chuck Kellner and myself to represent different perspectives and scenarios on ECA.