Essays

A recent post to the Yahoo! LitSupport group asked whether there were any published standards covering email deduplication hashing. The problem is more complicated that it appears on the surface. As several other search experts commented, the definition of a duplicate email and the actions that you take will vary based on the jurisdiction, matter issues and party demands. Under FRCP Rule 34(b), the requesting party may define the format of production within the scope of the Rule 26(b) and the terms of your Rule 26(f) negotiations. Both rules provide some exemption for duplicative productions, but there are arguments that can be made about deduplication within a custodian’s email or across all custodians.

The Electronic Discovery Reference Model (EDRM) projects meet twice a year in St. Paul for a couple days of concentrated work. This year’s gathering feels a bit smaller than year’s past, but all the projects seem to be making good progress. There were a good number of new, first time participants from law firms and corporations, reflecting the growing number of dedicated eDiscovery managers and specialized counsel. After a short status report from the project leaders, everyone adjourned to their chosen projects to work.

I was recently asked if I had a top ten list of guidelines are questions for a corporate legal department who is just starting to look at investing in some kind of information management, archiving or discovery solution. Although I do a lot of requirements and RFP engagements, I am usually brought in after the internal committee already has some idea of what they want. However, I frequently encounter clients that have latched onto a solution label without a true understanding of their own key pain points or what it will take to realize the ROI promised by this new technology. First and foremost, these corporations are already ahead of the curve because they have recognized the need and have made the decision to do something about it. Rather than trying to tackle all the different options and issues that span the different technology solutions, I want to limit this discussion to eDiscovery related technology, mostly because I believe in sticking to what I know best.

The Cowen Group recently put out some very interesting research showing that 87 of the AmLaw 200 law firms have eDiscovery practice groups. The next step in Cowen’s research is to look more granularly at what those groups are doing, investments those groups are making in technology and people, and the level of authority and traction the groups get within the firms. I think this statistic points to the beginning of some maturation in the eDiscovery practice realm. While one might say that the real sign of maturation will be that close to half of Fortune 1000 companies have eDiscovery practice groups, it is really the law firms where this trend should begin.

The Sedona Conference released its Commentary on Proportionality in Electronic Discovery, available for download here. Proportionality is an interesting topic; determining what is good faith and reasonable is challenging. The Sedona Conference Working Group provides some very good analysis in this document. I’d like to add some perspective on what this means for organizations working on eDiscovery programs.

IBM announced the acquisition of PSS Systems, setting into motion what might be a round of consolidation in the eDiscovery market. I get asked all the time why the software giants haven’t bought eDiscovery vendors and the answer is typically that they are waiting until there are some internal winners in the market. In the market for preservation management, the main vendors have been PSS and Exterro. IBM must have decided that it was important enough to get some of the big clients that PSS brings to the table.

The AIIM State of the ECM Industry 2010 report is out and I read it to see what kinds of insights it might offer about the eDiscovery market. ECM – or enterprise content management – gives organizations the ability to more efficiently manage unstructured content. ECM first came on the scene to solve mundane problems like version control, to put workflow around content-driven processes, and to better facilitate knowledge management (giving knowledge workers the tools to be more efficient). When the FRCP amendments took effect in 2006, the expectation was that ECM could ultimately solve the problem. At eDJ, we still believe that ECM will play a huge role in identification, collection, and preservation initiatives, it will not be the end-all, be-all for eDiscovery. That said, eDiscovery is a huge driver for ECM.

As always, there were some interesting tidbits in the Fulbright & Jaworski Annual Litigation Trends Survey (this one was the 7th annual report). The report covers a lot of ground including trends for fee arrangement, the tactics for handling international disputes, the types of matters organizations face the most (and the different ways each type of matter impacts litigation costs), and eDiscovery. At eDJ, we looked for the nuggets of data about eDiscovery that are most interesting and compelling – there were severa

Corporations continue to acquire eDiscovery technology as they slowly convert from reactive fire drills to proactive business processes. The majority of early eDiscovery processing and hosting platforms available to service providers carried a relatively high per GB license cost. This model drove many service providers to develop their own software to remain competitive when prices suddenly dropped from $2,000 per GB down to the current $400-600 per GB. Now many of these providers have packaged their toolboxes into commercial software and are trying to convert service customers to software sales. All of this gives buyers an overabundance of choices when creating an RFP. It certainly keeps me busy with briefings and demos of new products every week. An offhand remark from a savvy CTO sent me digging into the potential pitfalls of some current open source General Public Licenses that work on a Copyleft or pay it forward model.

We all know that Office 2007 and later files are a different file format from your traditional DOC/XLS/PPT files, but I thought that it was worth exploring them with an eye on their potential impact in eDiscovery activities. First we need a simple explanation of what changed from Office 2003 to Office 2007 formats. Prior to 2007, Word, Excel and Powerpoint files were each proprietary binary file formats that required the application or a viewer to open. Office 2007 adopted an XML-based file format called Office Open XML that uses a common set of XML files within a compressed Zip container. These Extensible Markup Language (XML) files are simple text files that resemble HTML. The files now have an X or M added to their traditional file extensions to indicate whether they are flat XML or if they have embedded macro content. So DOC, XLS and PPT have become DOCX/DOCM, XLSX/XLSM and PPTX/PPTM. There are many advantages to the open formats, but we will focus on the potential discovery impact.