Essays

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.

One of today’s stories from the eDJ (eDiscoveryJournal) news engine reminded me of that first email review. The contract paralegal used the firm email system to complain about a festival and was subsequently sacked for her temerity. I used to call this the ‘5,000 to One Rule’. The first time any corporation attempted an in-house review of journaled or restored email, we would see at least one employee fired or disciplined for every 5,000 email reviewed.

Traditional discovery search applications like dtSearch and processing packages like Clearwell are usually offline while new collections are being indexed. Litsupport and legal personnel are used to being confident of the collections being searched at that moment. If you add new ESI to your matter, then you need to update the index before your search, right? But now that there are tools for searching ESI where it lives on live corporate servers and desktops, we introduce a relatively new wrinkle into search, index lag. Enterprise and desktop search engines run in the background and watch for new, deleted or changed files within the scope of folders that they are watching. The problem is that index updates are never instantaneous, which means that enterprise wide searches are never 100% complete.

Recent discussions on Debbie Westwood’s Small Firm eDiscovery LinkedIn group have revolved around the results of the 7th Circuit’s pilot program to reduce eDiscovery costs. The focus of this program seems to be actual discussion at the Rule 26(f) Meet and Confer instead of the usual bilateral sets of demands that are misinterpreted or poorly translated back to the technical teams. The program reflects the ongoing efforts of The Sedona Conference® Cooperation Proclamation to “reverse the legal culture of adversarial discovery that is driving up costs and delaying justice”. This effort to make all the attorneys ‘play nice’ with each other does not address one of the critical assumptions that has crept into civil litigation as a whole. That is the assumption that only attorneys can or should directly communicate between the parties once litigation is filed.