Anyone evaluating eDiscovery software is going to have a hard time finding a way to compare tools in an apples-to-apples fashion. And, even if we are to know how many servers these vendors are using to get the numbers they report, we know nothing about the make-up of the data corpus. It’s very different to process a bunch of Word documents than it is to process TBs of PST files.
In Part 1, we defined and looked at how automated document review has entered the eDiscovery market. Attenex and Stratify both encountered the same slow adoption and educational sales cycles when they brought concept clustering analytics to the hosted review market. Being on or over the cutting edge can be rough when you have a relatively conservative customer base. Counsel want strategic advantages without corresponding risks while corporations push for cost containment. In the midst of this pressure cooker, DiscoverReady has launched a new automated first pass review system called i-Decision™.
When we talk about metadata for native ESI, we are usually concerned about the Operating System (OS) fields that are kept in the File Allocation Table (FAT). Different OS formats support a wide variety of fields such as different dates, attributes, permissions and file name formats (long vs. short). These fields are not usually stored within the actual file and so are very vulnerable to alteration or complete loss when items are read or copied. Forensic collection is focused on preserving this ‘envelope’ information so that evidence can be authenticated and the context reconstructed in court. That is only half of the metadata story. Microsoft Office and other programs retain non-displayed information within the header and body of all common file types, especially with the adoption of the XML based Office 2007 file formats.
The legal community is just coming to grips with the implications of native files and their metadata. I like to think of this as the content vs. context of ESI or the letter vs. the envelope in communications. Parties and courts are still arguing about how to handle, track and present multiple copies of the same item collected from different locations. Now we move that content into a dynamic environment with multiple, simultaneous ‘custodians’ that may contain historical versions, associated commentary, workflow and more. It is any wonder that many corporations have tried to define restrictive acceptable usage policies and implement net filters to limit user access to Facebook, Twitter and more from the enterprise?
In Part 1, we explored changing face of internet and intranet collaborative communication platforms and the increased risks posed by outdated policies and technologies. My main concern over these systems is the unreasonable expectation that a typical corporate custodian could preserve relevant ESI stored in Sharepoint or another cloud based system. Despite recent rulings emphasizing written Hold Notification, most users simply do not have the tech savvy, rights or proper tools to either make a complete preservation copy or secure the items in place against expiry or accidents. That shifts the onus back onto Legal to effectively preserve these dynamic data sources.
The first two journal entries on autocoding definitely resonated with the market and generated a lot of on/offline responses. One of those responses was a call and subsequent briefing from my old colleagues at FTI Technology on their latest offering, FTI Acuity. [EDITOR’S NOTICE– Greg worked at Attenex prior to the FTI acquisition.] A quick visit to the FTI site leads one to believe that Acuity is just a packaged services-hosting offering with a fixed per-GB or per-Document pricing model that they term Integrated Document Review. DiscoverReady was one of the first Attenex partners to offer fixed-fee per document review pricing back in 2005. The FTI materials barely mention the new predictive coding and quality control functionality that has been added to the Ringtail-Patterns platform.
I was recently asked what training and certifications could help an attorney looking to break into contract work on eDiscovery projects. This is an attorney that has practiced for 20 years , but she still felt the need to put some technical alphabet soup behind her JD. The questions mostly focused on which software and what level of training would demonstrate overall competence. What it takes to ‘break in’ as an independent is a good topic for a full article, but I will start with my perspectives on software, training and certifications as they exist today. Although contract attorneys are primarily used as reviewers, I am going to assume that an experienced attorney or other professional wants to take a case or project management role for a corporate or law firm client. This role has traditionally been filled by the service provider, but with corporations insourcing discovery and firms taking more fixed fee engagements, I can definitely see a potential niche market for someone with the right skills.
The 2009 economic downturn created a boom in the offshore review industry. The cost of review still dominates the eDiscovery lifecycle and is the top target for budget conscious corporate legal departments. Corporate counsel tends to start with the actual hourly wages of reviewers because that does not change their current workflow. Some work with pools of contract attorneys to bring the hourly rates down to $25-$80 per hour. But this still requires outside or inside counsel to manage the review and invest in the review platform to host the data. Outsourced service providers have traditionally handled the large, multiparty matters and supplied both project management as well as offshore contract reviewers. This is the root of the new Legal Process Outsourcing (LPO) service model. Integreon, one of the largest LPO players, announced that it had been named in a writ for unlicensed practice of law to the Madras High Court in India.
Although my consulting practice focuses on corporate legal departments and Biglaw firms, expert work does not discriminate against small firms. Following a recent consultation, an attorney from a small three man firm reached out to me for advice on basic software to handle their modest needs. It had been a while(quite a while) since I had checked the options and pricing for technology appropriate for this part of the market. I was seriously out of touch on the per seat pricing for CT Summation’s iBlaze and the firm definitely did not want any volume or subscription based licensing. They wanted to buy software, learn to use it and get on with practicing law. This exercise reminded me of Craig Ball’s EDna Challenge back in January. My challenge was about equipping a small or solo firm with basic eDiscovery technology without breaking their budget.
In several recent posts, Barry and I have called out the challenges of collecting dynamic content from web based collaboration platforms, focusing on Sharepoint as the market leading platform. It is definitely on the minds of corporate legal departments and providers alike. Our articles prompted the team at Kiersted Systems to request a demo and briefing on their newest Sharepoint collection and review offering. Although we do not do classic product ‘reviews’ at eDiscoveryJournal, I do like to explore the implications of new methodologies and technologies. Sharepoint 2010 itself is new to the market and brings new capabilities to manage legal holds on records as well as more robust search and export features. The new ability to make a ‘preservation copy’ within Sharepoint is probably the highlight feature to take note of. They have wrapped a bit more workflow and specific action templates around holds, search and export, but the basic item level functionality seems unchanged.