Essays

As I was walking through Planet Data’s latest hosted offering, I was struck by the freedom that web based applications have to assemble key features to support specialized workflows. After all, if you have all the basic functions, it is merely a matter of presenting them in a clean set of web pages. We tend to forget that eDiscovery is still relatively new and the vast majority of our actual software users are still just getting up to speed on the technology. Litigation support staff, service providers and consultants live and breathe all this, so we know the context and can navigate a crowded graphical user interface (GUI) full of mysterious icons and mouse-over terms of art like dedup, fuzzy, family, etc. The effort to create stand-alone traditional software that had to function in diverse environments and support a wide variety of usage scenarios produced highly complicated, crowded feature toolboxes such as Summation. Exego Early Cost Assessment is a good example of how cloud development can create a streamlined workflow to meet a specific set of requirements.

When a major eDiscovery controversy breaks out, the eDJ team usually gets on a call to discuss and designate who should take the lead in response. Barry Murphy did a great job going to the source on the Recommind predictive coding patent announcement. I also enjoyed Herb Roitblat’s analysis of the patent content. At first, I did not figure that I had anything to add that had not been covered. Numerous ongoing discussions with clients, sponsors and contemporaries made me realize that I did have two cents to toss into the whirlwind. Designing and consulting for software companies got me in the habit of digging into the use of open source and potentially patented technologies. I know of many patents held by early innovators that have never been enforced on the market.

Part of my job is to meet with the investment community (venture capital, private equity, investment banking) and talk shop about the state of the eDiscovery market. Lately, the same question keeps coming up over and over: “is the eDiscovery market saturated?” Certainly, I can understand the question; the Symantec acquisition of Clearwell has created renewed interest in our market. Clearwell got a very nice multiple…in case you didn’t know, the term “nice multiple” does not escape the ears of the investment community. But, there seems to be a perception that the market is saturated and there are no ankle biters on the radar or sure winners on the way up. While there are definitely some over-capitalized vendors out there desperate for more cash or an acquisition, I believe this market is not even close to saturated, and I’ll offer an example of why.

A lot of my week has been spent on calls prepping the ‘Using eDiscovery Technologies’ track of the Carmel by the Sea eDiscovery Retreat next week. When Chris LaCour first recruited Barry and I to create focus tracks, I loved the idea of a small, relaxed retreat where attendees could really interact with the speakers. I thought of it as the antithesis of the typical Legal Tech experience; crowded, commercial, chaotic. George Socha, Browning Mareen, Barry Murphy and myself collaborated to come up with four focus tracks, each with four sessions over the three days. I managed to hand over the ‘Defining the eDiscovery Platform’ to Kevin Stehr of Lexis Nexis to develop and moderate, but that still left me three sessions to wrangle with. I am pleased with my panelists and the materials that should be finalized early this week. I know that the retreat is a small venue and it may be hard to convince your management that you really will be learning about eDiscovery rather than hitting the links, but I see this as an excellent west coast opportunity to get quality content and real discussion from experts, judges and your contemporaries.

I’m happy to announce that a new report I authored with Kevin Esposito is now available on our site: Managing eDiscovery As a Repeatable Business Process. It’s been a hot topic lately as corporations seek to control costs and get out of the vicious cycle of reactive collections. Today, most organizations manage eDiscovery on a matter-by-matter basis, stuck in a reactive nightmare that plays over and over. This approach is both costly and risk-laden. Organizations do not have the time, internal skills or tools required to cull down collected data sets. This results in unnecessarily expensive third-party data processing and legal review. The matter-by-matter approach also leads to inconsistencies in how the same data is treated across matters. Multiple handoffs and increased movement of data from application to application and vendor to vendor raises the chances for spoliation and the potential for negative repercussions such as sanctions.

A couple weeks back I wrote a piece on the Commission on the Leadership Opportunity in U.S. Deployment of the Cloud (CLOUD2) looking at what the U.S. could do to encourage global companies to adopt U.S. based cloud providers. I enjoyed speaking to the international working group on potential eDiscovery concerns with cloud providers. The group is analyzing the issues and creating innovative recommendations for the Obama administration. Their work just got a bit harder as Microsoft’s UK Managing Director Gordon Frazier admitted to ZDNet that EU data stored in Office 365 could be accessed by U.S. government under the U.S. Patriot Act. This should not be a surprise to anyone who has watched the debates over government internet monitoring programs like Carnivore and NarusInsight. It apparently was a surprise to members of the European Parliments who are now demanding answers.

On its first day, the Carmel Valley eDiscovery Retreat has been a refreshing change of pace from most of the other legal technology shows. The location is both beautiful and serene; it’s most certainly not frenetic like LegalTech. The mix of attendees is a nice one – there are corporate folks, law firm partners and associates, vendors, and independent consultants. That mix provides for lively debate and a rich variety of perspectives.

While moderating CLE sessions at the Carmel Valley eDiscovery Retreat this week, I received multiple emails from clients and contemporaries drawing my attention to the breaking scandal around the erroneous web cache forensic reports in the Casey Anthony trial. As it happens, one of my sessions with Herb Roitblat and Jason Velasco was “Validation Testing - Defending Your eDiscovery Process”. I have not been able to get a more detailed analysis of the exact issue with the CacheBack software used by John Bradley (the designer) as yet. The primary problem was that his initial analysis showed that someone on the Anthony residence computer had run searches for “Chloroform” 84 times when it was later determined that this had happened only one time. This is a good example of how even the best intentioned and experienced user can come up with erroneous results in unusual or unanticipated circumstances.

Although none of the principals involved want to speak on the record, I managed to get some detailed information on the technical issues. Consider this a Part 2 to my blog on the discrepancies raised by the defense between the initial police report using Digital Detective’s NetAnalysis of 1 visit and the subsequent SiQuest CacheBack report of 84 visits related to chloroform from the Anthony family computer. The NY Times article does a good job of the event timeline, so I am just going to focus on the deep geek details. All of this centers around the parsing and extraction of Google searches and site visitations from the Firefox 2 browser history. Firefox Versions 1 & 2 used a rather unique and problematic database file coined “Mork” after the quirky TV alien ‘Morky & Mindy’ TV show.

It seemed like every single presentation I was in at the Carmel Valley eDiscovery Retreat last week contained the term “reasonable.” Most speakers, myself included, had to position responses to questions as “do what is reasonable for your organization.” As a consultant, it feels like a cop-out to say something like that because it’s essentially saying, “it depends,” and that’s just such a typical consultant thing to say. Reasonableness, though, truly does depend. It depends on the organization and it depends on the matter.