Essays

Legal hold is one of the hottest eDiscovery topics of 2010. First, we saw legal hold applications featured prominently at LegalTech in New York – it seemed like every vendors was offering some kind of solution for preservation. Next, we had the Montreal Pension plan opinion, aka “Zubulake Revisisted,” in which Judge Shira Scheindlin hammered home the need for companies to have a written notification place in plan to let custodians know they have an obligation to preserve information. After that, we got a lot of pundits (eDJ included) questioning whether the sanction avoidance benefit of legal hold applications really exists – too many clients were saying that the sanctions were not really scaring them into action. And now, I am beginning to see a bit of a bifurcation in the legal hold applications market – vendors that offer a “complete” solution for the notification and tracking process as well as identification, preservation, and collection and those that offer a solution more targeted at just managing the notification and tracking process.

eDiscovery has, in many ways, made it to the mainstream. Thanks to email mismanagement and lack of corporate ethics, our market is in the news on a virtually daily basis. It therefore surprises some that so few organizations have taken significant measures to address eDiscovery. I did an informal poll of some clients to understand why and got some interesting responses. For the 15 or so clients I pinged on this issue, cost and IT issues were the major pains.

Elbow deep in a recent engagement, it occurred to me just how fragile most legal holds really are. A couple years back, one of my friends on the speaking circuit introduced me to a case that seemed to say that hold notification without some kind of verification process was insufficient effort. The case is In re HAWAIIAN AIRLINES, INC., Debtor. HAWAIIAN AIRLINES, INC., Plaintiff, vs. MESA AIR GROUP, INC., Defendant. Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF HAWAII 2007 Bankr. LEXIS 3679. The spoliation memo is located here. The lesson that I took away from Mesa’s experience with their data deleting executive was to notify then verify. That was a good starting point, but now I realize that this lesson extends beyond the matter level preservation requirements to include a company’s retention process.

If you have not heard, the Atlanta flooding forced the International Legal Technology Association (ILTA) to relocate to Las Vegas. The conference kicks off next week and I wanted to throw out some highlights to tempt you to join us. I invite everyone to my Monday panel “Early Case Assessment: The Benefit is in the Eye of the Beholder”. Duane Lites of Jackson Walker has recruited Tom Morrisey-Purdue Pharma, Scott Cohen-Winston & Strawn, Chuck Kellner and myself to represent different perspectives and scenarios on ECA.

Despite being a regular speaker on the eDiscovery conference circuit, this is my first time making the ILTA conference. The theme of the conference is Strategic Unity, expressed in social networking, new education initiatives and collaborative technologies. As a volunteer run organization, the tone at ILTA does not have the same frantic vendor driven character as Legal Tech has taken on. My panel session on ECA usage scenarios and perspectives seemed to go well, but that is always difficult to tell from the other side of the microphone. The top moments included Tom Morrisey’s “Voldemort, the software that cannot be named”, Chuck Kellner’s violation of the vendor profit oath and the agreement that there is no “ECA solution”, only features that support your ECA process. Imagine my surprise when Jim King dragged me over to the IPRO booth to proudly show me the Allegro banner proclaiming “Early Data Assessment”. Please forgive the iPhone picture quality…

Now that ILTA 2010 has wound down, I have been reflecting on the striking differences between this educational networking event and the ‘big’ tradeshow , Legal Tech New York (LTNY). ILTA is volunteer-governed industry organization, although it is managed by a full time paid staff. It describes itself as a peer networking organization and that was certainly a large focus of the event including a heavy emphasis on social technology to forge new connections. This creates a curious blend of grass-roots community organizing within a tightly structured event agenda, somewhat like a national Scout Jamboree. The core value to “maintain vendor independence” includes an admirable “No Sales Pitch” rule for sessions and social events. I was handed a ‘No BS’ button to go with my speaker’s ribbon as a clear reminder.

With so many professionals newly drafted into the complex, dynamic eDiscovery world, there is an ever-increasing demand for educational resources (OLP, ALSP), conferences (ILTA, ARMA, LTNY, Georgetown Institute), associations and materials from authoritative bodies such as The Sedona Conference and the Electronic Discovery Reference Model. Many years ago, George Socha and Tom Gelbmann (EDRM founders) began encouraging the participation of independent, corporate and law firm professionals with alternative membership options. I am happy to report that non-providers make up over half of the 2010 Metrics project when I stepped down as the project co-lead. All of this leads up to this week’s announced shift to an ‘EDRM Anniversary Membership Model’ for single or all project participation. The membership cost for an individual is just $200/year and $1,000/year for organizations with 10 or fewer employees. In consideration of the 2008-9 economic downturn and the consolidation in the eDiscovery market, EDRM will continue to waive the individual membership fees for anyone who has lost their job recently.

At the recent ILTA 2010 conference I managed to get briefed on quite a few new product offerings. I wanted to pass along the highlights quickly to keep them timely. I may follow up some of these snapshots with full deep dives, but I will stick to the high level takeaways. Let’s get right to it.IPRO is finally taking some strides toward integrating products into a single platform that share the Eclipse database backbone. They have released an ‘Early Data Assessment’ application named Allegro built on Windows Presentation Foundation for a dynamic, better interface and a completely new processing engine. IPRO conservatively estimates 250 GB per day on a laptop or up to 750 GB on a workstation, all without exploding or copying email or file containers. IPRO sells software, not appliances, so performance will vary with your hardware. Like many recent performance claims, the devil is in the details of the test collection and hardware. Providers seem to be very concerned with ingestion performance since NUIX broke the 1 TB per day threshold.

In order to keep my ILTA feedback as fresh as possible, I have decided to try a combined post that just pulls the highlights for a number of the providers that briefed me at the conference. I expect to follow up most of these highlights with a more in-depth piece after the full demo. I have pretty much given up on trying to do full product demonstrations at conferences. You just do not have the time to do them justice in the midst of the hustle and bustle. Nextpoint brings a true Saas/cloud offering to the market with their Trial Cloud, Discovery Cloud and Cloud Preservation web products based on Amazon web services. Their $25/GB/month flat pricing definitely challenges the established players and makes an interesting option for small firms or companies with matters below the usual hosting cost/benefit thresholds. My experience with raw internet transfer limitations says that Fedex will be making a lot of money for matters over 5 GB in size, but everyone seems to be used to shipping hard drives these days anyway.

Here is the last batch of takeaways from my briefings at the recent ILTA 2010. I have been able to schedule deep dives on some of the new offerings, so I hope to bring you more details on the new toys.