Essays

The vast majority of our corporate clients are public corporations with inside counsel. Generally we work directly under inside counsel’s supervision to protect our work product. A fast assessment engagement for a smaller corporation without any inside counsel got me thinking about eDiscovery risk vs. cost decisions in a different light. Civil litigation is a ‘sooner or later’ fact of life for any public corporation with enough revenue to tempt a plaintiff. As eDiscovery becomes a defacto business process, what hat is the typical inside counsel wearing when they make decisions on matter scope, filters, data sources and more? We tend to think of counsel as the final arbitrators of eDiscovery decisions. But frequently, inside counsel is wearing the business hat when applying the ‘reasonable effort’ standard to situations. In a company without inside counsel, who does that final decision fall to?

The entire eDiscoveryJournal / eDJ Group team will all be in attendance at LTNY this year. Our schedules are getting pretty booked up, but we will make every attempt to coordinate time for business meetings, panels and analyst debriefings. If you haven’t had a chance to schedule a time with someone from our team or if you would like someone from the team to speak on a panel, please email us to get something on the calendar.

One of eDJ’s predictions for 2012 is that PC-TAR (predictive coding-technology assisted review) goes mainstream. Instead of just sitting and waiting to see what happens with PC-TAR, we are actively researching it. Watch for the launch of an eDJ survey on the topic next week (and the chance to win yet another prize from eDJ for participating in our research). Jason Velasco did a call-out for anyone using PC-TAR to speak with us and we’ve been able to talk to actual practitioners. I want to quickly share some of what we are learning and call for anyone else trying PC-TAR to email us and share your story.

Have you ever received a detailed project estimate from a service provider and wondered how they came up with it? I have. Unless you provided them your client specific data assumptions, they likely used “industry standards” to fill in the blanks. Hmmm. Where did these industry standards come from and how accurate are they?

For the past two months, eDJ has been running a survey on eDiscovery and The Cloud. The results teach us some excellent lessons: that eDiscovery is an afterthought in The Cloud and that The Cloud does not kill off on-premise collection and preservation tools. Now, eDJ has published the first report in our series on eDiscovery and The Cloud: "Gearing Up for The Cloud and Social Media." One finding is that The Cloud and Social Media have generated more heat than actual action.

A recent Forbes blog by by Amanda Jones & Ben Kerschberg pointed out how technology-assisted review in eDiscovery can increase review accuracy and decrease overall review costs. The article mainly refers to the use of predictive coding, but touches on what has been called “technology assisted review.” Last month, Jason Velasco here at eDJ offered up the acronym PC-TAR (predictive coding – technology assisted review) to avoid controversy.

As the buzz around The Cloud has built over the last few years, one company remained noticeably silent about plans for The Cloud – Symantec. Rival companies like IBM and Autonomy began introducing cloud archiving products in addition to existing on-premise archiving products. With its market-leading archiving product Enterprise Vault, Symantec no doubt felt the competitive impact of cloud solutions, but when queried about a cloud strategy, the company would only mention its partnership with LiveOffice. Turns out, LiveOffice is the Symantec cloud strategy – Symantec has acquired LiveOffice for $115 million.

So where do you get your eDiscovery news from? Obviously you get some of it from the eDiscovery Journal, but no one should rely on any one source. A while back, my friend Browning Marean complimented me on a blog post. Turns out, he reads my blogs from another website. Luckily, that site at least attributed my blogs to me. It got me thinking about how easy it is to get high search ranking with the right domain name. Google and Bing have gotten smart about having multiple web addresses that redirect users to your site, so one ‘best’ practice for SEO optimization is to create microsites that reinforce your brand/message/perspective through proxy domain registrations.

One of the greatest challenges of implementing and maintaining legal hold and discovery response processes in a corporate environment is balancing those requirements with the needs and goals of the IT department. While we typically see the dichotomy between Legal and IT, there are other key stakeholders that cannot be left out of the mix: Compliance, Records Management and, of course, the Business Client.In order to strike the balance (or at least start moving in that direction) between competing interests, each of these stakeholders must be able to understand the goals, mission, requirements, and needs of the others. To point out the obvious – this requires communication. The problem here is that Legal, Records, Compliance, and IT do not speak the same language. Because every organization is unique, culture is another critical component that cannot be ignored. While the cultural considerations and communication difficulties between the stakeholders may not necessarily be contentious, they can be frustrating and challenging. Luckily, there are ways to work through the cultural and language barriers, such as using drawings/visuals, explaining things in simple terms, and the use of translators.

The astronomical growth in corporate data has driven the practice of eDiscovery away from just the forensic imaging of physical hard drives. The first systems for remote collection of email containers, Office files and other ESI from desktops, laptops and servers appeared in the 2004-2006 time period. I might have been one of the earliest beta testers for Guidance’s Encase Enterprise platform when I was managing the litigation technology for El Paso Corporation back then. Since then, the market has seen a wide variety of new appliances, just-in-time apps and other remote collection technologies. Most appear to promise a ‘push button’ automated collection by IT or Legal with minimal or no impact to working users. Legal sets the scope (date ranges, file types, names or search terms), and the system does all the work in the background. I just wish that it was that easy in the wild west of real world enterprise environments.