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Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-01-26 18:07:42Format, images and links may no longer function correctly. If the term Early Case Assessment (ECA) causes you to roll your eyes and reach for a copy of your JD/MBA buzzword bingo sheet, [...]

While utility computing holds much promise, there are also examples of SaaS being used effectively in the eDiscovery market. EDD processors offer a web-based interface to case data. These interfaces provide varying levels of review functionality. When you think about it, hosted review has long been a staple of this market and the review platforms of vendors like CaseCentral, Kroll Ontrack, and Iron Mountain / Stratify are really SaaS applications.

Several recent blog posts and discussions on various industry listservs have raised interesting issues about the potential problems and benefits of consultants working for and with software and service providers. See John Heckman’s post ‘What is a Consultant, Anyway?’ as well as Seth Rowland’s ‘Sales vs Consulting – The Cost of Independence’ for some well developed criticisms of consultant’s who are compensated by the seller instead of the buyers. Steve Miller’s ‘What is a Consultant, Anyway? My Two Cents’ provides some counterpoints supporting vendor relationships for consultants. These opinions seem to originate from the software sales area instead of actual consulting on cases.

As inside and outside counsel struggle with ever larger ESI collections, the question of appropriate sample sizes for quality assurance pops up on the national lists, conference panels and in social gatherings of law geeks. There are many different statistical theories that can be used to calculate the relative probability that the results of a sample set can be extrapolated against the total collection. In simpler terms, sampling is used to define how confident we are in an assertion when we have not or cannot review every single item due to scale, availability, cost or time. This is expressed as the Confidence Interval or Confidence Range. Do not worry, I am not a statistician and have no intention of even trying to translate significance levels, variability parameters or estimation errors. Instead, I will talk about how sampling can apply to the discovery process.

Any organization that ignores information lifecycle management from this point forward is stupid – plain and simple. To argue that eDiscovery is not a concern only categorizes an organization into the ostrich category. It’s time to get the heads out of the sand and start building out an infrastructure that supports finding and collecting potentially relevant information quickly and to manage the process for retaining and preserving this information.

As IT becomes more and more involved in eDiscovery software purchasing, the scalability and performance of tools will be important decision criteria. But, when every vendor claims to be the most scalable on the market, what should buyers do?

In Part 1, we explored changing face of internet and intranet collaborative communication platforms and the increased risks posed by outdated policies and technologies. My main concern over these systems is the unreasonable expectation that a typical corporate custodian could preserve relevant ESI stored in Sharepoint or another cloud based system. Despite recent rulings emphasizing written Hold Notification, most users simply do not have the tech savvy, rights or proper tools to either make a complete preservation copy or secure the items in place against expiry or accidents. That shifts the onus back onto Legal to effectively preserve these dynamic data sources.

In several recent posts, Barry and I have called out the challenges of collecting dynamic content from web based collaboration platforms, focusing on Sharepoint as the market leading platform. It is definitely on the minds of corporate legal departments and providers alike. Our articles prompted the team at Kiersted Systems to request a demo and briefing on their newest Sharepoint collection and review offering. Although we do not do classic product ‘reviews’ at eDiscoveryJournal, I do like to explore the implications of new methodologies and technologies. Sharepoint 2010 itself is new to the market and brings new capabilities to manage legal holds on records as well as more robust search and export features. The new ability to make a ‘preservation copy’ within Sharepoint is probably the highlight feature to take note of. They have wrapped a bit more workflow and specific action templates around holds, search and export, but the basic item level functionality seems unchanged.

I had a chance to speak with Lance Sloves, a Director at Computer Forensic Services, Inc. about forensic collection. He points out that, first, it’s fairly rare for any organization to have well-rounded or proper policies and processes in place for good, defensible collection – that is just the way it is. Second, few organizations possess the expertise in proper data and forensic collection that is required in today’s eDiscovery market. The fact is that many litigators are getting smarter and smarter about collection – and some can smell blood when something has not been properly vetted. And I’ve yet to meet an IT manager who relishes the thought of being an expert witness.

In Part 1, I outlined the typical litigation profile questions that would support a realistic needs assessment for a solo attorney or small firm. From a the set of requirements, we explored the basic software packages through the EDRM lifecycle while calling out small firm perspectives. In the intervening weeks, I have tried to track down and get hands on new applications and SaaS offerings that might meet my challenge criteria. The nice folks at QD Documents got me a trial license for their $500 package. The product definitely gives a solo attorney the basic organizational space to code in documents, exhibits, transcripts, filings and all the other working pieces of a matter. Unfortunately, it is really just a nice, clean document tracking and management space, rather than an eDiscovery processing platform. I suppose that you could put URL links in field for native files, but that just feels too much like Concordance. So a good, cost-effective case management tool, but not an answer to my challenge.