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Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2013-03-05 05:37:02Format, images and links may no longer function correctly.  Counsel have always struggled to balance preservation obligations against unreasonable interference in the custodian’s ability to function in day to day business. To [...]

Businesses of all sizes are migrating files from unstructured file shares to onsite and cloud based content collaboration systems at a remarkable rate. Microsoft’s SharePoint 2010 and 2013 are finally seeing rapid adoption and eDJ working analysts have seen increasing inquiries on managing eDiscovery and compliance risks in these new environments. Almost all of these new ESI repositories come with search indexes to support the end user experience and to satisfy new information governance requirements like the 2010 Dodd-Frank Act. We will be publishing a research report on the IT impact of the new ‘corporate transparency’ mandates shortly, but I wanted to explore the risks and benefits of leveraging the ‘in-place’ search indexes.

Information Governance (IG) is an incredibly complex task thanks to the distributed ways in which companies create and store information. The holy grail of IG is centralized management of distributed information assets. Much like the King Arthur’s grail, this IG grail is difficult, if not impossible, to find. Enterprise Content Management (ECM) approaches have not worked and enterprise search has not proven to impact the high costs associated with such activities as eDiscovery. That doesn’t stop vendors from trying to create solutions that will get us closer to finding that holy grail, as I was reminded of during a recent vendor briefing.

It has been a topic du jour, but social media discovery does not seem to be gaining the mindshare one might expect given the explosion in usage of social media. Almost 65% of respondents in eDJ’s social experience survey indicate using external social networks (e.g. Facebook, LinkedIn, Twitter) at work. I will not go into the litany of case law regarding the discoverability of social media in criminal and civil litigation. There are many JDs out there more qualified to dig into precedents and what they mean. Suffice it to say that social media is potentially discoverable and ignoring it could lead to sanctions, adverse inferences, and higher than expected eDiscovery costs.

Many of the articles and blogs concerning the ruling in GlaxoSmithKline LLC v. Discovery Works Legal Inc., et al., Case No. 650210/2013 will try to tell you that these kinds of alleged provider misconduct are rare and isolated incidents. Indeed, attorney Michael G. Van Arsdall’s January article asserts, “Of course, there is a very low likelihood such a hostage situation would ever arise with the larg number of reputable vendors that occupy the e-discovery space.” I found Mr. Arsdall’s excellent recommendations for handling providers recycled through numerous blogs/articles without anyone questioning his basic assumption that you should not have issues with ‘reputable vendors’. I wish that business practices in our industry were somehow special, different or above the basic conflicts in the global consumer-provider market that litigation thrives on. We all make our livelihood on bad business deals. So why should eDiscovery providers be any different? Buy any experienced litigation support manager a few libations and then ask them about the ‘bad’ vendors. Then do the same thing with any eDiscovery sales rep and compare the stories. The eDiscovery market is still a relatively immature industry founded on emergency, reactive services purchased with someone else’s money under adversarial conditions.

The EDRM Midyear Meeting press release included the usual project updates and an important announcement regarding George Socha and Tom Gelbmann passing the leadership baton to convert EDRM into a true non-profit standards organization. This transformation raises many questions about the organization’s goals and has some analysts challenging the use (or misuse) of the seven year old lifecycle model by product marketing and management teams. First let’s take a look at these titles, “Is the EDRM a Jack-of-All-Trades and Master of None?” and “Abandoning the EDRM assembly line: a legal-regulatory technology market ripe for change.” While these rather evocative titles could lead you to believe that the EDRM is to blame for software companies that have built ‘Frankenstacks’, products that attempt to support too many divergent business tasks. I am not exactly sure what specific products were being lumped into this category. Most providers chasing the ‘eDiscovery Platform’ market have added legal hold notification, project workflows and some matter management modules to either collection or review foundations, but these are all supporting related tasks.

My definition of Dark Data differs from Wikipedia:“Data relevant to a discovery request that is either never disclosed or is produced without contextual information that could affect the interpretation of that data.” My first interview on cloud sources as discovery targets turned up surprising frustration from the savvy eDiscovery Counsel for a national plaintiffs firm. I expected to hear about immature collection capabilities and defendant’s who struggled to preserve or collect from Office 365, SalesForce or other cloud systems. I did not expect that requesting parties might be completely in the dark about where a production comes from or how it was collected. eDJ’s consultants have had too many recent engagements supporting the evaluation or migration of email and files to the cloud to doubt the trend. Microsoft has been touting the rapid adoption of Office 365 with corporate and public sector verticals. Many corporations seem to have moved critical ESI to the cloud without a clear plan to meet eDiscovery and Information Governance requirements.

Businesses go through natural evolutionary periods, growing and changing over time – sometimes minor incremental changes, and sometimes more radical changes. Since we started eDiscoveryJournal almost four years ago, the company has gone through a series of minor incremental changes, all leading up to the more radical change that we would like to announce today: it has come time to retire eDiscoveryjournal.com and replace it with a more unified website at http://edjgroupinc.com.

Indications are that eDiscovery solution purchases are about to become more strategic in nature. A decade ago, it was not uncommon to see non-competitive bids for eDiscovery business because so many purchases were reactive and made under intense time pressure. In the past several months, however, the inquiries from clients have become more intelligent and more specific – a sure sign that folks are getting ready to make more strategic investments in software and services.

eDJ’s new report, “Predictive Information Governance: The Time Has Come,” looks at how Predictive IG works and how it can positively impact multiple use-cases.