Essays

What a year 2011 has been for the eDiscovery market. The Analysts at eDJ put our heads together and reviewed what transpired in 2011 and what kind of trends we will see in 2012. As a thank you for your support throughout the year, eDJ’s report “eDiscovery Trends: 2011 Year in Review and Forecasting 2012” is available for free download. 2011 saw trends around pragmatic ideas such as managing eDiscovery as a process and taking control of Information Governance (IG), while also hinting at forthcoming heat around “the Cloud” and predictive coding. We also saw the beginning of the rise of the “eDiscovery platform,” with vendors advertising solutions that could manage the full eDiscovery lifecycle. And, there was continued merger and acquisition (M & A) activity in the Discovery marketplace, with two acquisitions in the “bombshell” category given the premiums paid by acquirers. Symantec bought Clearwell in June, 2011 for close to $400 million (a premium of approximately 8x Clearwell’s revenues), while HP bought Autonomy for about $11 billion (a premium of more than 10x).

Migrated from eDJGroupInc.com. Author: . Published: 2011-12-19 10:48:27  Today is the last day to enter the eDiscoveryJournal's holiday drawing for $250 in gift cards.  We are giving away $250 to five lucky people, so don't miss out.  Click here to enter!!!  The drawing will be held at noon EST so that we can get the $$$ to you for any last minute holiday shopping.  [...]

It seems that Congress feels the need to weigh in on the costs of eDiscovery. Articles from LTN, CMSwire, Law.com and many other bloggers take many different perspectives on the commentary and Q&A session. We went to the House report to try to extract some of the highlights. My biggest take away is that we really do not have any solid metrics and objective market data on the true cost of eDiscovery. The comments focused on the cost and burden of preservation, especially on matters that never become actual litigation. Republican subcommittee members stressed the costs while Democrats questioned the relevance and corporate donor origin of the hearing itself in light of the active rule evaluation by the Judicial Conference. So here are some of the notable statements with my own perspective on them.

There has been a significant amount of discussion, both formal and informal, surrounding whether the Federal Rules of Civil Procedure should be amended as to preservation and sanctions. Some believe that the time is not yet ripe, while others have presented arguments to the contrary. There is, however, one common theme in the debates, blogs, papers and meetings: cooperation.

At eDJ, we’ve been thinking a lot about the recent Congressional Hearing on The Costs and Burdens of Civil Discovery. Being deeply involved in the eDiscovery market, we hear every day from companies seeking to make discovery a more efficient process. We also work with companies seeking to put in place proactive information governance (IG) initiatives with the ultimate goal of making eDiscovery less of a reactive, expensive burden.

Migrated from eDJGroupInc.com. Author: . Published: 2011-12-21 15:04:33  The team at the eDiscoveryJournal is excited to announce the winners for our annual eDiscoveryJournal holiday drawing a $250 gift card. We had many entries, but only a few can win.Here is our list of the 2011 winners: Jonathan O. Steen – Redding, Steen, & Staton Juli Sauer – Best Buy David Meadows – Kroll Ontrack [...]

One key element for transforming your eDiscovery from an ad hoc reactive fire drill into a mature, proactive business process is the development and implementation of formal Quality Assurance(QA) and Quality Control(QC). I have always viewed QA as tackling ongoing process improvement such as regular cross case comparisons, while QC tends to be checking on did the process perform properly. Basically, how can we make the process better versus did everything work right? When interviewing corporate client eDiscovery teams, everyone is conscious of the need for QA/QC, but the vast majority seem to feel that it is impractical or unrealistic given their tight deadlines, lack of resources and typical fire-fighter mentality. Some law firm clients have swung to the opposite extreme, with elaborate workflow, check lists, physical chain of custody forms and more. Their QC has grown out of reasonable proportion and their productivity suffers because their overall QA has been neglected. So how do we achieve a reasonable quality process without bringing the legal process to a halt?

Yesterday, EPIQ Systems announced its acquisition of De Novo Legal for $68 million. It’s a 2011 transaction, but look for it to be indicative of something to expect in 2012 – service providers getting bigger and broader geographic coverage via acquisition. While huge acquisitions on par with HP’s purchase of Autonomy or Symantec’s purchase of Clearwell are certainly a possibility, the real action is more likely to be in the service provider business.

The impact of discovery in this era of electronic information explosion has greatly affected corporations that are full-time litigants. These effects go all the way to the core of their businesses in terms of cost, risk, and management of information. The resulting position for organizations has become reactive, and discovery costs have spiraled out of control. Over the last several years there has been a good deal of discussion on the value of bringing eDiscovery processes in-house – often referred to as “litigation readiness.” The goal of developing an in-house eDiscovery program is to manage it as a business process, thus gaining efficiency and cost control.

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?