Essays

Barry’s article, “Who Owns eDiscovery?” focused on the challenges of corporate investment in the overall eDiscovery process without clear ownership between IT, Legal, Compliance, Records Management and even the business units. It occurred to me that there is an entirely different ownership battle being waged over who is actually managing and performing the actual document review. The law firms have traditionally owned the review process and born the risk of inadvertent production of privileged and unprotected confidential documents. With eDiscovery slowly evolving from an ad hoc reactive fire drill into a managed business process, corporations have begun to take back the upstream or ‘EDRM Left’ phases of the eDiscovery lifecycle. This is happening at the same time as public corporations are experimenting with Business Process Outsourcing (BPO) and SAAS solutions for infrastructure and internal services.

While conducting my discovery scenario testing on Exchange 2010, I found that Microsoft had made two steps forward along with what seems like several strange steps back. In the early days of corporate networks, personal computers and enterprise software, administration was reserved for wizardly geeks who had mastered various esoteric command line languages. I recall the blessed feeling of relief when I stumbled through my first administrative GUI (Graphical User Interface). The admin GUI brought mastery of systems and applications into the realm of the merely mortal user. When evaluating software, I tend to view applications that force the user to learn command switches and syntax as immature. As a counterpoint, I acknowledge that the command line functionality is fantastic for an advanced user to run batch scripts or even automate functionality. When I first looked at Exchange 2010 SP1 Beta (only version available at the time), I was astounded to find that they had killed off ExMerge, the administrative utility used for years to import and export PST files from mailboxes.

We’ve been writing about the issue of “ownership” in eDiscovery lately and it’s prompting some good discussions. Earlier posts about general ownership of eDiscovery and ownership of document review have led to various debates such how to best implement eDiscovery processes and solutions within corporations and the potential change of business models for law firms. Only one thing is clear – that there is little clarity in our market. These debates will continue to rage for near-term because most organizations are still fairly low on the eDiscovery learning curve.

So what is a ‘white paper’? Wikipedia says that they are authoritative reports or guides on a specific issue, which sounds great. Just ‘below the fold’ on the definition we find that since the 1990’s ‘commercial white papers’ have become marketing or sales tools designed to promote a specific company’s solutions or products. I think that the eDiscovery market is cynical enough to understand the embedded perspective of most white papers. This bias or perspective does not invalidate the content of good papers, but it does force the reader to filter and interpret carefully. Don’t get me wrong here, I have contributed my share of commissioned white papers to the body of eDiscovery perspective. Every one was a bit of a struggle with the ‘client’ to keep my content free of market messaging. It was exactly this kind of ethical and professional conflict that drove us to create eDiscoveryJournal in the first place.

In early 2010, I said it would be the year of Early Case Assessment (ECA). Thankfully, the eDiscovery world was about much more than ECA; this was the year that corporations took a meaningful step up the maturity ladder. This is not to say that there isn’t work to be done. On the contrary – the first movement up the learning curve was a baby step, but a step in the right direction nonetheless.

Barry’s reflections on the 2010 market space got me thinking about last year’s technology trends. We saw a lot of privately developed review platforms rolled out with different licensing models, but I wanted to figure out what was fundamentally new and different. No. 1 ECA = ESI AccessWell before LTNY 2010, the marketing machines began to hype Early Case Assessment (or Early Data Assessment) as the new eDiscovery usage case for corporations and law firms. But what is the fundamental function that enables ECA/EDA? I posit that it is the ability of a relatively non-technical user to directly access ESI, whether in the wild or from a collection. This basic marriage of search indexing and a review GUI gave Clearwell a big jump on the market, followed closely by StoredIQ, Kazeon and a host of others. Effectively, we are foreshadowing the ‘death’ of processing as a separate EDRM phase. My main concern about merging processing into a one-click function is that it can over-simplify complex options and bury exception handling. As long as users understand the different quality requirements for Identification/Investigation versus the actual discovery request, ECA/EDA tools are here to stay.

As we head into “LegalTech season,” I would normally expect some hyperbole around not-so-well defined terms like “ECA” or “the cloud.” And while there is certain to be some marketing hype around the show, it feels like this year will feature more pragmatism. I expect to see more messaging around actual benefits that solutions have delivered and less “generic” messaging about how many additional features a platform or service has implemented.

Searching for a single term within a document is pretty black or white. It is either present or not. When you step up to searching based on phrases, proximity terms, concepts and compound term clusters things start to get a bit less absolute. Yet, simple lists of terms are generally either overly broad or are missing relevant ESI. The simplest search index does not store information about the position(s) of terms within a document. Modern search indexes such as Lucene, FAST, IDOL and others rely on term position and other information to derive clusters of two or more related terms (concepts) and relevance weighting factors. During a recent briefing call with Mike Wade, CTO of Planet Data, we delved into some of the challenges that Planet Data faced expanding their Exego Early Cost Assessment platform to support concept search and ECA workflow. What really caught my attention was the ability to extract two separate versions of the text from documents, both the raw unformatted text AND the rendered view. Alternatively, they have developed a merged rendering that embeds the extracted object text in-line with the viewed text.

Now that my full research paper is complete and available, I wanted to share some highlights. Just yesterday I had another GC client tell me that their IT department wanted to rely on their upcoming upgrade to Exchange 2010 to respond to discovery requests. Microsoft has added some good new features, but I would not want to try to defend their use against any kind of adverse scrutiny. So let’s talk about the new ‘Discovery Search’ interface. First and foremost, this is basically the old administrative multi-mailbox search within the OutlookWebApp. The search name and criteria are written to a database table along with the user, date, size estimate and some keyword statistics. The last is a good feature that was undoubtably driven by a customer request to support keyword negotiations. Here is a look at the landing page:

Keeping track of eDiscovery decisions and untangling their relative scope, merit and potential applicability is not easy, even with eDiscoveryJournal’s search engines watching the web. Gibson Dunn has published their 2010 Year-End Electronic Discovery and Information Law Update covering 323 decisions, up over 60% from the 2009 eDiscovery decisions (200 cases). Besides calling out the report as a good resource, I wanted to comment on some of the statistics and specific cases.