Essays

In the normal course of business, I am excited to see EDRM project content incorporated into caselaw, articles, research and by other experts in eDiscovery, especially when it is a piece that I contributed to. In a recent Law.com piece titled “A Strategy to Sample All the ESI You Need” attorney Nick Brestoff leveraged Section 9.5 of the EDRM Search Guide to propose forcing the opposition to produce samples of ‘irrelevant or nonresponsive’ ESI. His proposal is a stark reminder of the adversarial nature of our business. As one of the primary contributors on the validation sections of the Search Guide, I can assure you that I envisioned the producing party using sampling and the other methods to maximize precision, accuracy and completeness of discovery searches. I agree with Mr. Brestoff’s demand that parties disclose the scope, confidence levels and criteria used to sample. However, he basically challenges the producing parties ability or right to determine relevance and presents ‘three easy steps’ to demand all ESI not produced. That seems to effectively negate relevance review completely and excludes only duplicates, system files and privileged ESI.

Barry’s article, “Who Owns eDiscovery?” focused on the challenges of corporate investment in the overall eDiscovery process without clear ownership between IT, Legal, Compliance, Records Management and even the business units. It occurred to me that there is an entirely different ownership battle being waged over who is actually managing and performing the actual document review. The law firms have traditionally owned the review process and born the risk of inadvertent production of privileged and unprotected confidential documents. With eDiscovery slowly evolving from an ad hoc reactive fire drill into a managed business process, corporations have begun to take back the upstream or ‘EDRM Left’ phases of the eDiscovery lifecycle. This is happening at the same time as public corporations are experimenting with Business Process Outsourcing (BPO) and SAAS solutions for infrastructure and internal services.

While conducting my discovery scenario testing on Exchange 2010, I found that Microsoft had made two steps forward along with what seems like several strange steps back. In the early days of corporate networks, personal computers and enterprise software, administration was reserved for wizardly geeks who had mastered various esoteric command line languages. I recall the blessed feeling of relief when I stumbled through my first administrative GUI (Graphical User Interface). The admin GUI brought mastery of systems and applications into the realm of the merely mortal user. When evaluating software, I tend to view applications that force the user to learn command switches and syntax as immature. As a counterpoint, I acknowledge that the command line functionality is fantastic for an advanced user to run batch scripts or even automate functionality. When I first looked at Exchange 2010 SP1 Beta (only version available at the time), I was astounded to find that they had killed off ExMerge, the administrative utility used for years to import and export PST files from mailboxes.

So what is a ‘white paper’? Wikipedia says that they are authoritative reports or guides on a specific issue, which sounds great. Just ‘below the fold’ on the definition we find that since the 1990’s ‘commercial white papers’ have become marketing or sales tools designed to promote a specific company’s solutions or products. I think that the eDiscovery market is cynical enough to understand the embedded perspective of most white papers. This bias or perspective does not invalidate the content of good papers, but it does force the reader to filter and interpret carefully. Don’t get me wrong here, I have contributed my share of commissioned white papers to the body of eDiscovery perspective. Every one was a bit of a struggle with the ‘client’ to keep my content free of market messaging. It was exactly this kind of ethical and professional conflict that drove us to create eDiscoveryJournal in the first place.

Barry’s reflections on the 2010 market space got me thinking about last year’s technology trends. We saw a lot of privately developed review platforms rolled out with different licensing models, but I wanted to figure out what was fundamentally new and different. No. 1 ECA = ESI AccessWell before LTNY 2010, the marketing machines began to hype Early Case Assessment (or Early Data Assessment) as the new eDiscovery usage case for corporations and law firms. But what is the fundamental function that enables ECA/EDA? I posit that it is the ability of a relatively non-technical user to directly access ESI, whether in the wild or from a collection. This basic marriage of search indexing and a review GUI gave Clearwell a big jump on the market, followed closely by StoredIQ, Kazeon and a host of others. Effectively, we are foreshadowing the ‘death’ of processing as a separate EDRM phase. My main concern about merging processing into a one-click function is that it can over-simplify complex options and bury exception handling. As long as users understand the different quality requirements for Identification/Investigation versus the actual discovery request, ECA/EDA tools are here to stay.

The clear trend is that corporations are taking control of eDiscovery and bringing functions on the left side of the EDRM – identification, collection, preservation, and elements of processing, analysis, and review – in house. The goal is a more proactive approach to an inherently reactive process. But, the evolution is still a slow one. Inevitably, most corporations still take a matter-by-matter approach to eDiscovery.

Centralized control of information is at the heart of information governance. In many ways, though, centralization runs counter to the realities of the working world where information must be distributed globally across a variety of devices and applications. The amount of information we create is overwhelming and the velocity with which that information moves increases daily. To think that an organization can find one system in which to manage all its information is preposterous.

Clients often bring up the issue of creating a business case for eDiscovery because it’s such a difficult activity. Despite the fact that solutions on the market can help save a lot of money, it’s hard to justify spending hundreds of thousands of dollars upfront to address eDiscovery costs. It shouldn’t be as hard as it is, but such is the grim reality in the complex world of corporate eDiscovery. I believe that much of the difficulty comes from the lack of “ownership” for eDiscovery.

We’ve been writing about the issue of “ownership” in eDiscovery lately and it’s prompting some good discussions. Earlier posts about general ownership of eDiscovery and ownership of document review have led to various debates such how to best implement eDiscovery processes and solutions within corporations and the potential change of business models for law firms. Only one thing is clear – that there is little clarity in our market. These debates will continue to rage for near-term because most organizations are still fairly low on the eDiscovery learning curve.

In early 2010, I said it would be the year of Early Case Assessment (ECA). Thankfully, the eDiscovery world was about much more than ECA; this was the year that corporations took a meaningful step up the maturity ladder. This is not to say that there isn’t work to be done. On the contrary – the first movement up the learning curve was a baby step, but a step in the right direction nonetheless.