Essays

As AIIM Expo comes to an end, I’m left feeling like the eDiscovery market is on the precipice of becoming a critical part of the information management market, but is not quite there just yet. There is an excitement and buzz about eDiscovery at the conference, but it is not quite yet a crescendo. Yes, there was an eDiscovery pavilion and we got to meet some cool vendors exhibiting there – Catalyst Repository Systems, El Fresko Technologies, iConect Development, Kroll Ontrack, and Planet Data Solutions. But, many of the mainstream eDiscovery vendors were not at the show at all, either as exhibitors or attendees. And, of the large software vendors present – EMC, IBM, Oracle, and Microsoft, eDiscovery was not an overtly featured capability at their booths. There was even a partner pavilion for Microsoft and the only partners talking about eDiscovery were archiving partners. As we’ve pointed out in other entries, there is a big opportunity for creating eDiscovery solutions for SharePoint; it’s a shame no one is getting out ahead of the curve on that.

Hybrid is a popular term right about now, and not just because those kinds of cars are considered environmentally friendly. Rather, we are seeing an increase in the number of solutions that are a hybrid combination of on-premise software and software-as-a-service (SaaS).

The four key parts that both on-premise and cloud-based models share: consumption (how end-users interact with the appliation); creation (how developers build the application); orchestration (how parts of the application are pulled from the app server); and infrastructure (where key elements of the app like servers and storage live).

There is a definite sense of excitement in the eDiscovery market. Corporations are beginning to deploy tools for in-house collection and preservation and early case assessment. Vendors are seeing revenue increases and strong growth numbers. M & A activity is on the rise, witnessed by Iron Mountain’s acquisition of Mimosa and Doar’s acquisition of Inference Data. It’s easy to get caught up in the excitement and think we’re on the cusp of solving the eDiscovery problem. But, now is also a good time to make sure that due diligence is served when implementing processes and tools to address eDiscovery.

There were a number of cases in the last decade that most of us thought would be the impetus organizations needed to take eDiscovery and information governance seriously. Two of the high-profile cases were the Zubulake case and the Morgan Stanley case. In the Zubulake case, $20.2 million in punitive damages were awarded to employee of UBS Warburg partly because the jury was instructed to believe that non-preserved evidence likely contained incriminating information. In the Morgan Stanley case, $1.45 billion was awarded to Ronald Perelman after a judge issued a default judgment against Morgan Stanley due to eDiscovery failures. Again, the assumption was that non-preserved evidence was assumed to be incriminating. Since then, there have been many other cases involving sanctions, but with many of the cases, the actual sanctions don’t grab the attention of large organizations.

Conducting defensible eDiscovery collections can be challenging, but will pay off in both the near- and long-terms. What any organization does depends upon their specific maturity level and requirements. In general, though, organizations that want to take control of eDiscovery collection should:

I spent the better part of this past week at the EDRM kickoff meeting in St. Paul, MN. For those of you that aren’t familiar with it, EDRM stands for electronic discovery reference model. The goal of EDRM is to “develop guidelines and standards for e-discovery consumers and providers…helping e-discovery consumers and providers reduce the cost, time and manual work associated with e-discovery.” A lot of great thought leadership has emerged from EDRM, including the well-accepted reference model that provides insight into all the activities that need to happen during eDiscovery.

Everyone may be familiar with the Electronic Discovery Reference Model (EDRM), but many of you may not know much about the organization that created this iconic representation of the eDiscovery lifecycle. EDRM turned six this year and has grown to over 300 participants that span providers, firm, corporate and independent discovery practitioners. The record attendance this year (104 participants) reflected the uptick in business and company’s willingness to commit budget to eDiscovery initiatives. The initial EDRM diagram project has grown to nine active projects developing non-commerical eDiscovery resources and guides. George Socha and Tom Gelbmann (of the Socha-Gelbmann Survey) coordinate the twice yearly meetings and tirelessly support all of the group conference calls and web resources throughout the year. The May gathering is a chance to report on project progress and set new goals for the next year. Each project has two to three leaders and 10-90 individual and organizational participants. All public materials are freely available for use under the Creative Commons Attribution 3.0 United States license as long as you properly attribute them to the EDRM project. The projects follow a consensus based approach and participants of all backgrounds and experience levels are welcome.

In my consulting practice, I frequently work with corporate legal departments to select and prepare their designated ‘IT Custodians’ who will have to sign affidavits and may be deposed/testify as a Rule 30(b)(6) witness. Historically, these designated subject matter experts covered accounting systems, business practices and other complicated areas relevant to the issues at the heart of a matter. The enterprise ESI lifecycle itself has become so complicated that every preservation or collection request may now require a translator to effectively communicate all the implications of system configurations, user actions and discovery technologies on the scope and format of response efforts.

While at the recent EDRM 2010 Kickoff meeting, I was able to get a guided tour of the newly released Relativity Six from Andrew Sieja (CEO) and his team. Having several clients who have standardized on the kCura platform in the last year, it was definitely interesting to see the new features and product direction. I will not try to walk through every new bell and whistle here, as your favorite sales rep is more than happy to dive into that level of detail. Instead, I will try to give you the high level points. Andrew’s goals for this release included improving the analytics integration, review workflow, ‘ECA’ functionality and to extend the platform with a new API. Calling out ‘Early Case Assessment’ drew a spirited round of critical debate on the dubious validity of the term in light of the overuse in the discovery market. Despite the call from George Socha to ban the term from the sales cycle, I can see how cKura’s new Relativity Pivot feature supports many of the typical scope and liability assessment scenarios. The overall goal seems to be a more integrated and mature interface for case managers and power users to automate workflow and extract collection profile characteristics.