Essays

While pontificating on industry trends at ILTA, I joked that Fedex was the ultimate beneficiary of corporations that take their eDiscovery to the Cloud. Scant weeks later, my good friend Pete Pepiton at Mimecast responded to my ad hoc remark with the headline, “Fedex’s Profit Doubles”. We have had various Secure File Transfer Protocols for years, yet the practical bandwidth limitations of most internet transmissions have taught us not to try sending more than 5 GB of files via the web. In plain language terms, the web was just not designed for the kind of large file burst capacity transfers that typify an eDiscovery collection. There is a good discussion of these limits by Stacey Higginbotham here.

It’s always great to hear about interesting use-cases for eDiscovery technology, especially when those use-cases prove out benefits that go beyond just eDiscovery. During a recent briefing with Index Engines, the company told me that many customers are using the product for tape remediation initiatives. Essentially, these customers know that there is a ton of information sitting on backup tapes somewhere. This information is both costly to store (the tapes have to live somewhere) and risky – there is the risk that the tapes will have to be restored for eDiscovery (also not necessarily cheap).

When eDiscovery first hit the scene, many of us in the analyst community predicted that enterprise content management (ECM) vendors would ultimately be the big solution providers that win out. It seemed like records management would be the right way to proactively manage information for eDiscovery. But, a funny thing happened on the way to forum – ECM hasn’t yet won out. In fact, no one category of solution has yet to emerge as the big eDiscovery winner. But, a recent Greg Buckles comment on my article about eDiscovery technologies being applied to other use-cases really got me thinking about how our market is evolving.

eDiscoveryJournal has noted the consolidation taking place in the eDiscovery market. Altegrity acquired Kroll; AccessData acquired Summation; Autonomy acquired CA’s Information Governance division. Rumors persist that Autonomy will buy OpenText (though these rumors point out that Autonomy has assembled a $1 billion war chest for the acquisition and the OpenTex market capitalization is $2.12 billion…rumors can sometimes be just that – rumors). Often overshadowed by the consolidation hype are the moves that eDiscovery vendors make to extend functionality organically.

The end of summer is bittersweet. Bitter because we move out of relaxation mode and back into high-stress mode. Sweet because business activities really heat up as everyone gears up to have a big fourth quarter. What can we expect in the eDiscovery market this fall? This article lists the things to watch out for over the next four months.

One of the things I hear in vendor briefings more and more is early case assessment (ECA) happening even earlier. This can be referred to as “very early case assessment” or “ECA in the wild” or “in-place ECA.” At the end of the day, it’s all about moving ECA forward to happen in-line with identification and collection so that organizations can save money, make decisions earlier, and simplify the eDiscovery process.

In reading the morning’s headlines, an interesting statistic stood out to me - 51% of lawyers have lost a case in the last 3 months alone because of eDiscovery problems. The source of this data is not clear, but it came through the Twitter feed of Symantec’s Enterprise Vault team. Taking the stat at face value, it’s astounding – eDiscovery problems as the cause of a lost case. There is something very disheartening about any case being lost on anything other than its merits.

There is a lot of focus on software applications in eDiscovery – ECA, identification and collection, legal hold. Not to diminish the importance of these applications, but often lost in the hype is the critical importance of the storage hardware and software that support these eDiscovery applications.

eDiscovery is one of those markets that feels like it fits into the traditional software world, but has enough idiosyncrasies to require expert services. Those services have usually come from law firms, EDD service providers, or consulting companies. Such companies offer experienced litigators, forensic examiners, project managers, and other eDiscovery-related experienced professionals that are critical to executing processes correctly.

Officially, the U.S. recession started in December 2007 and ‘ended’ last June. Unofficially, we all know of talented people who are still looking for work. Anecdotally, the eDiscovery market seemed to bottom out in the third quarter of last year. I know that I saw a lot more resumes floating around LegalTech 2010 than in previous years. That led me to wonder who had closed shop or been acquired in the last couple years. I figured that one of the better ways to chase this list down would be to compare the LTNY Exhibitor lists from year to year. This exercise turned up some interesting numbers and facts.