Essays

Almost every new processing or review application that I have seen over the last year has featured a left hand navigation window that enables users to dynamically filter the collection by Author, Date, Type and more. You can call this faceted navigation, guided search or browsing navigation, but it boils down to the user’s ability to actively browse/filter the collection by metadata characteristics and categories that have been extracted from the index. Although this seems like just another way to construct a search, this feature offers a lot more to the discerning user. In older platforms, users had to run reports on their collections to extract the summary population metrics across different fields. The first one that I recall was the Tally function in Summation. This could only be done one field at a time, but unlike most static reports, you could generate the tally numbers on a set of search results instead of the entire collection. Current review, processing and even archiving products like Clearwell, Relativity, Introspect and Symantec’s Discovery Accelerator can generate these hierarchical ‘facets’ across multiple fields and display the total and item level counts dynamically in real time.

The firm of Gibson Dunn has published a survey that covers 103 eDiscovery cases from the first half of 2010. To catch the overall legal implications, Ralph Losey has done his usual excellent analysis riffing on an Andy Warhol theme this time. I wanted to pull out some trend highlights and talk through the potential impact on corporate stakeholders who are struggling to implement a full eDiscovery process. Although there have been some large and well publicized eDiscovery sanctions going back to Zubulake v. UBS Warburg, the total number and cost of civil sanctions against the overall litigation scope has not been sufficient to compel most corporations to invest in defensible process. Corporate legal departments are a cost center. Corporate counsel must make risk versus cost decisions every day and the realistic risk of sanctions has not measured up to the cost of doing discovery ‘right’ for many or most companies.

As some of you might recall, I briefly ran Attenex’s services group before the potential FTI acquisition reminded me how much I liked to work for myself. I always liked Document Mapper, aka ‘the Petri Dish’, and wanted to expand the usage of their conceptual clustering, social networking and other visual analytics beyond the review interface. The FTI Technology team has accomplished this by combining three products under the Ringtail Analytics brand. Even better, they are breaking free of the volume based licensing that has dominated the market for far too long. Corporations can purchase these add-on Ringtail modules via a traditional enterprise license. The idea is to apply a variety of analytics on the early assessment samples and against collections as large as a million items to support ECA, search creation, processing parameters and to optimize automated review sets management.

Every day new products and service bundles enter the eDiscovery market. I know this because of the constant feedback that we get from articles saying, “But we do that! Why didn’t you mention us?” The reality is that I cannot list every product that has guided search, conceptual folders, etc in every article. So I try to pick 3-4 example products with as much diversity as possible. I could have called out Stratify, Recommind and many others in my Guided Search article. The good part about all this feedback is the constant opportunity to be briefed on new versions and products. For many years, Autonomy and Nexidia have had the only enterprise level audio search built for discovery (and I am sure that I will now hear from others). The team at MerlinOne briefed me on their new hosted review platform going live in August. Lo and behold, their offering includes a new, fixed fee option for dealing with large collections of voicemail, meeting minutes and other audio/video collections.

When lawyers begin looking at what keywords are important for identifying potentially responsive information, the process seems fairly straightforward. Look at the key issues; brainstorm on concepts, words, and synonyms; select the keywords; conduct the collection. Tracking this process, however, can be cumbersome. Imagine trying to explain how you generated a keyword list based on several hours of brainstorming without detailed notes or a virtual recording of the brainstorming sessions. Optimizing keyword selection can help to make a cumbersome process more transparent and scientific.

Collection tools are sophisticated enough now that organizations should be able to centrally manage collection efforts for 90% of what needs to be preserved. There will be the need to take forensic images of certain local machines, but a good information management or information governance program should cover most organizations and make the collection process smoother, more efficient, and defensible.

There is a need to ensure that the redaction methodology used will work for the format of data in question, and to make sure that the redaction will actually make the private text both non-visible and non-searchable. In order to select the right redaction methodology, though, organizations must know what information they have, what format it’s in, and what elements are private or privileged. That takes planning and really requires that a proactive eDiscovery initiative (and hopefully infrastructure) be in place.

While there are some common trends, every company is different and the disconnect between legal and IT is so large that gauging eDiscovery purchasing habits is complex.

The archiving market is picking up steam, driven by a huge interest in cloud-based solutions. Cloud-based archiving providers offer virtually all the features of on-premise archiving – eDiscovery search interface; end-user access to email; compliance monitoring interface; storage management; legal hold. About the only thing cloud-based vendors don’t offer is mailbox management (stubbing)…and with the introduction of Microsoft Exchange 2010 to the market, the need for mailbox management is virtually dead. Still, though, there are valid concerns with cloud-based archiving – security; location of data; encryption; regulatory or legal requirements to store certain data on-premise; speed of document retrieval.

There are some that think that Google’s problems with the implementation of email for the City of Los Angeles will be a setback for cloud computing and Software-as-a-Service (SaaS) vendors. However, this is not going to kill cloud computing. Rather, it’s going to put the focus on aspects of cloud computing that are tricky and give Google’s competitors kill points and issues to build their marketing around.