Essays

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.

eDiscoveryJournal has noted the consolidation taking place in the eDiscovery market. Altegrity acquired Kroll; AccessData acquired Summation; Autonomy acquired CA’s Information Governance division. Rumors persist that Autonomy will buy OpenText (though these rumors point out that Autonomy has assembled a $1 billion war chest for the acquisition and the OpenTex market capitalization is $2.12 billion…rumors can sometimes be just that – rumors). Often overshadowed by the consolidation hype are the moves that eDiscovery vendors make to extend functionality organically.

Despite being a regular speaker on the eDiscovery conference circuit, this is my first time making the ILTA conference. The theme of the conference is Strategic Unity, expressed in social networking, new education initiatives and collaborative technologies. As a volunteer run organization, the tone at ILTA does not have the same frantic vendor driven character as Legal Tech has taken on. My panel session on ECA usage scenarios and perspectives seemed to go well, but that is always difficult to tell from the other side of the microphone. The top moments included Tom Morrisey’s “Voldemort, the software that cannot be named”, Chuck Kellner’s violation of the vendor profit oath and the agreement that there is no “ECA solution”, only features that support your ECA process. Imagine my surprise when Jim King dragged me over to the IPRO booth to proudly show me the Allegro banner proclaiming “Early Data Assessment”. Please forgive the iPhone picture quality…

The end of summer is bittersweet. Bitter because we move out of relaxation mode and back into high-stress mode. Sweet because business activities really heat up as everyone gears up to have a big fourth quarter. What can we expect in the eDiscovery market this fall? This article lists the things to watch out for over the next four months.

Now that ILTA 2010 has wound down, I have been reflecting on the striking differences between this educational networking event and the ‘big’ tradeshow , Legal Tech New York (LTNY). ILTA is volunteer-governed industry organization, although it is managed by a full time paid staff. It describes itself as a peer networking organization and that was certainly a large focus of the event including a heavy emphasis on social technology to forge new connections. This creates a curious blend of grass-roots community organizing within a tightly structured event agenda, somewhat like a national Scout Jamboree. The core value to “maintain vendor independence” includes an admirable “No Sales Pitch” rule for sessions and social events. I was handed a ‘No BS’ button to go with my speaker’s ribbon as a clear reminder.

With so many professionals newly drafted into the complex, dynamic eDiscovery world, there is an ever-increasing demand for educational resources (OLP, ALSP), conferences (ILTA, ARMA, LTNY, Georgetown Institute), associations and materials from authoritative bodies such as The Sedona Conference and the Electronic Discovery Reference Model. Many years ago, George Socha and Tom Gelbmann (EDRM founders) began encouraging the participation of independent, corporate and law firm professionals with alternative membership options. I am happy to report that non-providers make up over half of the 2010 Metrics project when I stepped down as the project co-lead. All of this leads up to this week’s announced shift to an ‘EDRM Anniversary Membership Model’ for single or all project participation. The membership cost for an individual is just $200/year and $1,000/year for organizations with 10 or fewer employees. In consideration of the 2008-9 economic downturn and the consolidation in the eDiscovery market, EDRM will continue to waive the individual membership fees for anyone who has lost their job recently.