Essays

Officially, the U.S. recession started in December 2007 and ‘ended’ last June. Unofficially, we all know of talented people who are still looking for work. Anecdotally, the eDiscovery market seemed to bottom out in the third quarter of last year. I know that I saw a lot more resumes floating around LegalTech 2010 than in previous years. That led me to wonder who had closed shop or been acquired in the last couple years. I figured that one of the better ways to chase this list down would be to compare the LTNY Exhibitor lists from year to year. This exercise turned up some interesting numbers and facts.

While reviewing this morning’s eDJ web findings, I came across a good case analysis by K&L Gates regarding a privilege waiver issue in DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010). The actual opinion seems to only be available through Westlaw at this time, but the analysis of the fact pattern and findings are worth a read. An eDiscovery consulting firm employee used his work computer to send privileged email to his own counsel. These emails were later produced in the computer image and the subject of the waiver dispute. The decision pivoted on the question of how the employer interpreted their computer usage policy. This particular case highlights the inherent conflict between the U.S. corporate usage policies and employee privacy.

The Cowen Group recently put out some very interesting research showing that 87 of the AmLaw 200 law firms have eDiscovery practice groups. The next step in Cowen’s research is to look more granularly at what those groups are doing, investments those groups are making in technology and people, and the level of authority and traction the groups get within the firms. I think this statistic points to the beginning of some maturation in the eDiscovery practice realm. While one might say that the real sign of maturation will be that close to half of Fortune 1000 companies have eDiscovery practice groups, it is really the law firms where this trend should begin.

As corporations invest in the business process of litigation preparedness, many wrestle with the options for ongoing email preservation. I thought that it might be worth a quick look at some of these options and some potential issues that different methods pose. The first choice is whether the preservation method is user driven or an automated system. We all have heard the horror stories about user non-compliance. In Re Hawaiian Airlines is a good example and this U.S. Courts conference paper provides some context. However, a well implemented and documented user driven legal hold process may be the right solution in many circumstances. When you have a small number of key custodians and the matter relevance criteria is very clear, it may be reasonable to allow custodians to keep emails in a special folder. Automated systems have their own issues, the main one being overly broad or inaccurate preservation criteria.

The Sedona Conference released its Commentary on Proportionality in Electronic Discovery, available for download here. Proportionality is an interesting topic; determining what is good faith and reasonable is challenging. The Sedona Conference Working Group provides some very good analysis in this document. I’d like to add some perspective on what this means for organizations working on eDiscovery programs.

IBM announced the acquisition of PSS Systems, setting into motion what might be a round of consolidation in the eDiscovery market. I get asked all the time why the software giants haven’t bought eDiscovery vendors and the answer is typically that they are waiting until there are some internal winners in the market. In the market for preservation management, the main vendors have been PSS and Exterro. IBM must have decided that it was important enough to get some of the big clients that PSS brings to the table.

The AIIM State of the ECM Industry 2010 report is out and I read it to see what kinds of insights it might offer about the eDiscovery market. ECM – or enterprise content management – gives organizations the ability to more efficiently manage unstructured content. ECM first came on the scene to solve mundane problems like version control, to put workflow around content-driven processes, and to better facilitate knowledge management (giving knowledge workers the tools to be more efficient). When the FRCP amendments took effect in 2006, the expectation was that ECM could ultimately solve the problem. At eDJ, we still believe that ECM will play a huge role in identification, collection, and preservation initiatives, it will not be the end-all, be-all for eDiscovery. That said, eDiscovery is a huge driver for ECM.

One of the things that I love about publishing is the chance to be wrong and learn something new. Our industry and the technology that drives it is changing at an amazing pace. In the closing of my recent post about using Exchange Journaling for ongoing preservation, I mentioned the potential advantages of Nearpoint’s granular capture over Journaling as well as the monkey wrench Microsoft threw at them a couple years back. Indeed, Microsoft does not support parsing or extracting email from the Exchange database and transaction logs, except through a specific set of protocols. They phased out support for one of the generic protocols, ESE or Extensible Storage Engine API. This forced 3rd party vendors to either adapt or try to take full responsibility to their customer’s Exchange systems.

A recent post to the Yahoo! LitSupport group asked whether there were any published standards covering email deduplication hashing. The problem is more complicated that it appears on the surface. As several other search experts commented, the definition of a duplicate email and the actions that you take will vary based on the jurisdiction, matter issues and party demands. Under FRCP Rule 34(b), the requesting party may define the format of production within the scope of the Rule 26(b) and the terms of your Rule 26(f) negotiations. Both rules provide some exemption for duplicative productions, but there are arguments that can be made about deduplication within a custodian’s email or across all custodians.

The Electronic Discovery Reference Model (EDRM) projects meet twice a year in St. Paul for a couple days of concentrated work. This year’s gathering feels a bit smaller than year’s past, but all the projects seem to be making good progress. There were a good number of new, first time participants from law firms and corporations, reflecting the growing number of dedicated eDiscovery managers and specialized counsel. After a short status report from the project leaders, everyone adjourned to their chosen projects to work.