Essays

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.

While reviewing this morning’s eDJ web findings, I came across a good case analysis by K&L Gates regarding a privilege waiver issue in DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010). The actual opinion seems to only be available through Westlaw at this time, but the analysis of the fact pattern and findings are worth a read. An eDiscovery consulting firm employee used his work computer to send privileged email to his own counsel. These emails were later produced in the computer image and the subject of the waiver dispute. The decision pivoted on the question of how the employer interpreted their computer usage policy. This particular case highlights the inherent conflict between the U.S. corporate usage policies and employee privacy.

As corporations invest in the business process of litigation preparedness, many wrestle with the options for ongoing email preservation. I thought that it might be worth a quick look at some of these options and some potential issues that different methods pose. The first choice is whether the preservation method is user driven or an automated system. We all have heard the horror stories about user non-compliance. In Re Hawaiian Airlines is a good example and this U.S. Courts conference paper provides some context. However, a well implemented and documented user driven legal hold process may be the right solution in many circumstances. When you have a small number of key custodians and the matter relevance criteria is very clear, it may be reasonable to allow custodians to keep emails in a special folder. Automated systems have their own issues, the main one being overly broad or inaccurate preservation criteria.

One of the things that I love about publishing is the chance to be wrong and learn something new. Our industry and the technology that drives it is changing at an amazing pace. In the closing of my recent post about using Exchange Journaling for ongoing preservation, I mentioned the potential advantages of Nearpoint’s granular capture over Journaling as well as the monkey wrench Microsoft threw at them a couple years back. Indeed, Microsoft does not support parsing or extracting email from the Exchange database and transaction logs, except through a specific set of protocols. They phased out support for one of the generic protocols, ESE or Extensible Storage Engine API. This forced 3rd party vendors to either adapt or try to take full responsibility to their customer’s Exchange systems.