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After watching the IBM Watson debut on Jeopardy, I got to thinking more and more about computer intelligence. I’ve been watching the content analytics space for a long time and have seen up close both the potential for analytics to change the world and the skepticism with which many humans view analytics. When I began covering eDiscovery, it seemed to me that there was finally a market in which content analytics could make a real impact and find some traction. This is especially true in Early Case Assessment (ECA).

Internal retention battles are a good way to torpedo even the most defensible position in litigation. Preparing a cross functional team for working together at the start of a matter will pay dividends – both figuratively and literally – later in the case. As has been previously discussed here, “the beginning” is rarely where these teams are pulled together. The key to success is to determine an appropriate path no matter what stage of the matter you’re pulled in at. Taking inventory of your data and thinking about current and future retention possibilities helps to provide a framework for future decision making.

At the IPRO Innovations 2011 customer conference in Phoenix last week, I participated in an excellent panel discussion focused on the potential impact of large enterprise ECM and archiving platforms expanding into the eDiscovery lifecycle. Panelists Ronald Sotak of Ryley Carlock & Applewhite and Olivia Gerroll of Esentio brought excellent if divergent perspectives. The first thing to realize is that the majority of our audience consisted of IPRO channel partners, i.e. eDiscovery service providers. Some service providers are threatened by global software companies’ recent push to incorporate eDiscovery features into enterprise platforms. Specialty markets like eDiscovery can be eroded when their services are absorbed into normal corporate business processes. So the real question was, “Will in-house software platforms replace the vendors?”

There are many reasons that the large SIs have not moved into eDiscovery with full force. First, eDiscovery requires legal advice. Plain and simple, there is too much potential liability for a large consulting firm to come in and tell a company what it is “reasonable” and “good faith” for eDiscovery efforts. Second, there is not necessarily a large, multi-million dollar software deployment that will always go along with eDiscovery. The Accentures of the world are used to dropping off a bus of consultants to spend months deployment enterprise software. In the eDiscovery world, consumers can spend $80K on a collection and processing appliance. Hard to convince a company to spend millions when it can spend less than $100K.

In my long career, I have had to explain client’s data losses to regulators, prosecutors, hostile experts and angry judges far too many times. It makes you paranoid about encryption, backups and other recovery efforts. Even the best of us can get so busy that we forget to kick off that simple process. In my case, I had gotten in the habit of full backups the night before every trip, which should have meant a week’s loss at most. That meant that I got out of my Friday back up habit. Now that we are actively conducting research projects, I occasionally get as much as a month off the road. See where this is going? I didn’t. Turns out that a month is long enough to break even long standing habits. I hope that the punk who smashed-n-grabbed my encrypted hardware gets what is coming to him. This whole exercise got me thinking about recovery and remediation when you have hardware or data loss while under hold.

This has been the year for corporations shifting to eDiscovery readiness. We have seen few big announcements from the AmLaw firms regarding large technology investments, hiring industry personalities or building out eDiscovery practice areas. Today’s articles from The AmLaw Daily and Law.com put law firm eDiscovery back on my radar. David R. Cohen, leader of K&L Gates eDiscovery practice group has moved to Reed Smith’s Pittsburgh office and taken 14 attorneys and staffers with him. The K&L Gates eDiscovery Analysis and Technology (e-DAT) Group currently lists 42 professionals, but I am guess that the 30% actually represens the core of dedicated, experienced personnel. Going back in time to the big Microsoft anti-trust cases, this practice group reflected Preston, Gates & Ellis’s (original firm as I knew them) dedication to never lose a case based on technology or eDiscovery process. The groundbreaking analytic review interface by Attenex (acquired by FTI) was founded by the firm and leveraged by the e-DAT group to review huge collections. This background should help you understand the impact of the jump to Reed Smith.

Now that I have had a couple days to digest my whirlwind of Nashville ILTA 2011 press briefings, I wanted to get you my impressions on the memorable highlights. My first impression was, “OMG everyone has an iPad!” Really. Given the amazing prevalence of the tablets in the audiences of my sessions, I was not surprised that Recommind has just released an optimized mobile interface for their Axcelerate product. Howard Sklar (Recommind) says that they wanted to get ahead of the blurring the line between personal and professional lives. The service providers seem to be feeling the pressure from corporations to mitigate rollercoaster discovery costs with fixed fee and managed service offerings. Just as legal hold features were the hot add-on at LTNY in February, flexible work flows seemed to be the hot feature as providers are gearing up for the end of year release cycle.

A recent client discussion reminded me of my earliest attempts at rule based categorization and the hard lessons of that experiment. Back in 2000, my general counsel (GC) asked if it was possible to find and segregate all potentially privileged emails out of the hundreds of millions that we had to produce to many different parties. I took a couple hundred thousand email and spent a week crafting search criteria/rules and doing iterative sampling checks. I worked with our top paralegals and our long standing firms to incorporate everyone’s input. I segregated approximately 18% of that collection as potentially privileged and put the remainder in the review queue without telling my contract attorneys that it had been cleansed. I felt pretty good about the exercise and knew that my rules were overly inclusive, but the point was to determine the risk of privilege waiver if we gave all the regulators remote access to the ‘cleansed’ master collection while my review teams worked on the 15-18% at issue. In the middle of the review, my GC ‘volunteered’ to man a review station for a couple hours to see for himself how it worked. After all, it was his question that kicked off this experiment. What do you think that he found?

I had a great session with one of the top eDiscovery law firms this week. We spend time on their pain points and discussing the ownership ESI collections as they progress through the firm. One of the things that hit me was the realization that as eDiscovery has consumed more and more of the actual discovery lifecycle, we may be unintentionally taking the traditional gatekeepers out of the loop. When I reflect on the print/copy days of discovery, paralegals always owned the boxes. When a partner went looking for a critical document, the paralegal knew exactly where it hid and could reconstruct how it got into evidence. Paralegals still coordinate with the corporate clients on collections and overall management of deadlines, but it feels like initial collections now vanish into litsupport or service provider shops to emerge transformed into review sets. The problem is that this metamorphosis is generally a black box process (yes, I like the phrase because it evokes the abracadabra moment).

Cloud computing is a hot topic. The cloud’s ability to provide solutions that are lower cost and simpler to manage just cannot be ignored. Our recent SaaS survey showed that approximately 75% of respondents are leaning toward SaaS or hybrid on-premise/SaaS solutions for eDiscovery. Craig Ball recently put out a very interesting article about how running eDiscovery technology in the cloud will be more efficient. Craig goes so far as to say, “cloud computing makes collection unnecessary.”