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Electronic Discovery

eDiscovery Trends: Craig Ball of Craig D. Ball, P.C.
 

This is the ninth (and final) of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 600 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, including in American Bar Association, ATLA and American Lawyer Media print and online publications.  He also writes a monthly column on computer forensics and e-discovery for Law Technology News called "Ball in your Court," honored as both the 2007 and 2008 Gold Medal honoree as “Best Regular Column” as awarded by Trade Association Business Publications International.  It’s also the 2009 Gold and 2007 Silver Medalist honoree of the American Society of Business Publication Editors as “Best Contributed Column” and their 2006 Silver Medalist honoree as “Best Feature Series” and “Best Contributed Column.””  The presentation, "PowerPersuasion: Craig Ball on PowerPoint," is consistently among the top rated continuing legal educational programs from coast-to-coast.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

Price compression is a major trend.  Consumers are very slowly waking up to the fact that they have been the “drunken sailors on leave” in terms of how they have approached eDiscovery and there have been many “vendors of the night” ready to roll them for their paychecks.  eDiscovery has been more like a third world market where vendors have said “let’s ask for some crazy number” and perhaps they’ll be foolish enough to pay it.  And, if they don’t pay that one, let’s hit them with a little lower number, mention sanctions, give them a copy of something from Judge Scheindlin or Judge Grimm and then try again.  Until finally, they are so dissolved in a pool of their own urine that they’re willing to pay an outrageous price.  Those days are coming to an end and smart vendors are going to be prepare to be able to demonstrate the value and complexity behind their offerings.

I am seeing people recognizing that the “gravy train” is over except for the most egregious challenging eDiscovery situations where numbers really have little meaning.  When you’re talking about tens of thousands of employees and petabytes of data, the numbers can get astronomical.  But, for the usual case, with a more manageable number of custodians and issues, people are waking up to the fact that we can’t keep reinventing this wheel of great expense, so clients are pushing for more rational approaches and a few forward thinking vendors are starting to put forward some products will allow you to quantify what your exposure is going to be in eDiscovery.  We’re just not going to see per GB processing prices that are going to be measured in the double and triple digits – that just can’t go, at least when you’re talking about the raw data on the input side.  So, I’m seeing some behind the firewall products, even desktop products, that are going to be able to allow lawyers and people with relatively little technical expertise to handle small and medium sized cases.  Some of the hosting services are putting together pricing where, though I haven’t really tested them in real world situations, are starting to sound rational and less frightening.

I’m continuing to see more fragmentation in the market and I would like to see more integrated products, but it’s still like packaging a rather motley crew of different pieces that don’t always fit together well at all.  You’ve got relatively new review tools, some strong players like Clearwell and stronger than they used to be players like Relativity.  You’ve got people “from down under” that are really changing the game like Nuix.  And, you’ve got some upstarts – products that we’ve really not yet heard of at all.  I’m seeing at this conference that any one of them has the potential of becoming an industry standard.  I’m seeing some real innovation, some real new code bases coming out and that is impressive to me because it just hadn’t been happening before, it’s been “old wine in new bottles” for several years.

I also see some new ideas in collection.  I think people are starting to embrace what George Socha would like for me to aptly call the left side of the EDRM.  A lot of people have turned their heads away from the ugly business of selecting data to process and the collection of it and forensic and chain of custody issues and would gather it up any way they liked and process it.  But, I think there are some new and very viable ways that companies are offering for self-collection, for tracking of collection, for desk side interviews, and for generation and management of legal holds.  We’re seeing a lot of things emerging on that front.  Most of what I see in the legal hold management space is just awful.  That doesn’t mean it’s all awful, but most of it is awful.  It’s a lot of marketing speak, a lot of industry jargon, wrapped around a very uncreative, somewhat impractical, set of tools.  The question really is, are these things really much better than a well designed spreadsheet?  Certainly, they’re more scalable, but some have a “rushed to market” feel to me and I think it’s going to take them some time to mature.  Everyone is jumping on this Pension Committee bandwagon that Judge Scheindlin created for us, and not everyone has brought their Sunday best.

As for social media, it is a big deal because, if you’re paying attention to what’s happening with the generation about to explode on the scene, they simply have marginalized email.  Just as we are starting to get our arms around email, it’s starting to move off center stage.  And, I think the most important contribution to eDiscovery in 2010 has occurred silently and with little fanfare and I’d like to make sure you mention it.  In November, Facebook, the most important social networking site on the planet, very quietly provided the ability for you to package and collect, for personal storage, the entire contents of your Facebook life, including your Wall, your messaging, and your Facemail.  For all of the pieces of your Facebook existence, you can simply click and receive it back in a Zip file.  The ability to preserve and, ultimately, reopen and process that data is the most forward thinking thing that has emerged from the social networking world since there has been a social networking world.  How wonderful that Facebook had the foresight to say “you know, it would be nice if we could give people their entire Facebook stuff in a neat package in a moment in time”.

None of the others have done that yet, but I think that Facebook is so important that it’s going to make that a standard.  It’s going to need to be in Google Apps, it’s going to need to be in Gmail.  If you’re going to live your life “in the cloud”, then you’re going to have to have a way to grab your life from the cloud and move it somewhere else.  Maybe their portability was a way to head off antitrust, for all I know.  Whatever their motivation, I don’t think that most lawyers know that there is essentially this one-click preservation of Facebook.  If a vendor did it, you would hear about it in the elevators here at the show.  Facebook did it for free, and without any fanfare, and it’s an important thing for you to get out there.  The vendor that comes out with a tool that processes these packages that emerge, especially if they announce it when the Oscars come out {laugh}, is well positioned.

So, yes, social networking is important because it means that a lot of things change, forensics change.  You’re just not going to be able to do media forensics anymore on cloud content.  The cloud is going to make eDiscovery simpler, and that’s the one thing I haven’t heard anybody say, because you’ll have less you’ll need to delete and it’s much more likely to be gone – really gone – when you delete it (no forensics needed).  Collection and review can be easier.  What would you rather search, Gmail or Outlook?  Not only can Outlook emails be in several places, but the quality of a Google-based search is better, even though it’s not built for eDiscovery.  If I’m going to stand up in court and say that “I searched all these keywords and I saw all of the communications related to these keywords”, I’d rather do it with the force of Google than with the historically “snake bitten” engine for search that’s been in Outlook.  We always say in eDiscovery that you don’t use Outlook as a review and search tool because we know it isn’t good.  So, we take the container files, PSTs and OSTs and we parse them in better tools.  I think we’ll be able to do it both ways. 

I foresee a day not long off when Google will allow either the repatriation of those collections for use in more powerful tools or will allow different types of searches to be run on the Gmail collections other than just Gmail search.  You may be able to do searches and collect from your own Gmail, to place a hold on that Gmail.  Right now, you’d have to collect it, tag it, move it to a folder – you have to do some gyrations.  I think it will mature and they may open their API, so that there can be add-on tools from the lab or from elsewhere that will allow people to hook into Gmail.  To a degree, you can do that right now, by paying an upgrade fee for Postini, where they can download a PST with your Gmail content.  The problem with that is that Gmail is structured data, you really need to see the threading that Gmail provides to really appreciate the conversation that is Gmail.  Whereas, if you pull it down to PST (except in the latest version of Outlook, which I think 2010 does a pretty good job of threading), I don’t know if that is replicated in the Postini PST.  I’ll have to test that.

Office 2010 is a trend, as well.  Outlook 2010 is the first Microsoft tool that is eDiscovery friendly, by design.  I think Exchange 2010 is going to make our lives easier in eDiscovery.  We’re going to have a lot more “deleted” information hang around in the Windows 7 environment and in the Outlook 2010 and Exchange 2010 environment.  Data is not going away until you jump through some serious hoops to make it go away.

I think the iPad is also going to have quite an impact.  At first, it will be smoke and mirrors, but before 2011 bids us goodbye, I think the iPad is going to find its way into some really practical, gestural interfaces for working with data in eDiscovery.  I’ve yet to see anything yet but a half-assed version of an app.  Everyone rushed out and you wanted some way to interface with your product, but they didn’t build a purpose-built app for the iPad to really take advantage of its strengths, to be able to gesturally move between screens.  I foresee a day where you’ll have a ring of designations around the screen and you’ll flip a document, like a privileged document, into the appropriate designation and it will light up or something so that you know it went into the correct bin – as if you were at a desk and you were moving paper to different parts of the desk.  Sometimes, I wonder why somebody hasn’t thought of this before.  I’ve done no metrics, I’ve done no ergonomic studies to know that the paper metaphor serves the task well.  But, my gut tells me that we need to teach lawyers to walk before they can run, to help them interact with data in a metaphor that they understand in a graphical user interface.  Point and click, drag and drop, pinch and stretch, which are three dimensional concepts translated into a two dimensional interface. The interface of the iPad is so intuitive that a three year old could figure it out.  Just like Windows Explorer impacted the design of so many applications (“it’s an Explorer-like interface”), the iPad will do the same.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the second afternoon of LTNY}  I think that the show felt well attended, upbeat, fresher that it has in two years.  I give the credit to the vendors showing up with some genuinely new products, instead of renamed, remarketed new products, although there’s still plenty of that.  There were so many announcements of new products before the show that you really wonder how new is this product?  But, there were some that really look like they were built from the ground up and that’s impressive.  There’s some money being spent on development again, and that’s positive.  The traffic was better, I’m glad we finally eliminated the loft area of the exhibit hall that would get so hot and uncomfortable.  I thought the traffic flow was very difficult in a positive way, which is to say that there were a lot of warm bodies out there, walking and talking and looking.

Henry Dicker and his team should be congratulated and I wouldn’t be surprised if they set a record over the past several years at this show.  The budgets were showing, money was freed up and that’s a positive for everyone in this industry.  Also, the quality of the questions being put forward in the educational tracks are head and shoulders better, more incisive and insightful and more advanced.  We’re starting to see the results of people working at the “201 level”, but we still don’t have enough technologists here, it’s still way too lawyer heavy.  This is the New York market, everybody is chasing after the Fortune 500, but everything has to be downward scalable too.  A good show.

What are you working on that you’d like our readers to know about?

The first week of June, I’m going to be teaching a technology for lawyers and litigation support professionals academy with an ultra all star cast of a very small, but dedicated faculty, including Michael Arkfeld, Judge Paul Grimm, Judge John Facciola, and others.  It’s called the eDiscovery Training Academy and will be held at the Georgetown Law School. It’s going to be rigorous, challenging, extremely technical and the hope is that the people emerge from that week genuinely equipped to talk the talk and walk the walk of productive 26(f) conferences and real interaction with IT personnel and records managers.  We’re going to start down at the surface of the magnetic media and we’re going to keep climbing until we can climb no further.

Thanks, Craig, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Managing an eDiscovery Contract Review Team: Use the Team’s Knowledge

The document review effort is the litigation team’s first in-depth exposure to the client’s electronic documents.  The review staff will have more exposure to a broader range of documents than anyone else on the team, at least in the beginning of the case.  When you are using contract reviewers, they will go away when the review is completed.  You don’t want to lose what they’ve learned when the project is over, so you should take some steps to use their knowledge.  Here are two things you can do:

  • Ask for summary memos:  Ask supervisors on the project to prepare a summary memo for each custodian.  To get good summary information you should provide specific instructions for the information you would like included.  You could, for example, ask for this information about each custodian:
    • A description of the types of documents in the collection (for example, letter, monthly reports, work sheets, and so on).
    • A description of the general topics that are covered.
    • An approximate date range of the documents in the custodian’s files.
    • A list of key individuals (and organizations) with whom the custodian frequently corresponds.
  • Interview the review team:  Meet periodically with the group.  Spend an hour at the end of a workday and interview them about what they are seeing in the collection.  If there are certain topics you are hoping to see covered in the documents, ask the team about them.  Likewise, if there are certain topics that you hope not to see, ask about those as well.  This type of exchange will serve three purposes:
    • It will give senior litigation team members useful information about the document collection.
    • It will be useful for review team members to learn about what other team members are seeing.
    • It’s great for team morale.  It really reinforces that their work is important and that their input is valuable.

What steps do you take to make use of what the review team learns in the document review?  Do you have suggestions you can share with us?

This concludes our blog series on Managing an eDiscovery Contract Review Team.  I hope you found it useful!

Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: Tom O’Connor of Gulf Coast Legal Technology Center
 

This is the eighth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom O’Connor.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.  Tom's involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation.  Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

I think that there is still a lack of general baseline understanding of, not just eDiscovery principles, but technology principles.  Attorneys have been coming to LegalTech for over 30 years and have seen people like Michael Arkfeld, Browning Marean and folks like Neil Aresty, who got me started in the business.  The nouns have changed, from DOS to Windows, from paper to images, and now its eDiscovery.  The attorneys just haven’t been paying attention.  Bottom line is: for years and years, they didn’t care about technology.  They didn’t learn it in law school because a) they had no inclination to learn technology and b) they didn’t have any real ability to learn it, myself included.  With the exception of a few people like Craig Ball and George Socha, who are versed in the technical side of things – the average attorney is not versed at all.  So, the technology side of the litigation world consisted of the lit support people, the senior paralegals, the support staff and the IT people (to the minimal extent they assisted in litigation).  That all changed when the Federal Civil Rules changed, and it became a requirement.

So, if I pick up a piece of paper here and ten years ago used this as an exhibit, would the judge say “Hey, counsel, that’s quite a printout you have there, is that a Sans Serif font?  Is that 14 point or 15 point?  Did you print this on an IBM 3436?”  Of course not.  The judge would authenticate it and admit it – or not – and there might be an argument.  Now, when we go to introduce evidence, there are all sorts of questions that are technical in nature – “Where did you get that PST file?  How did that email get generated?  Did you run HASH values on that?”, etc.  And, I’m not just making this up.  If you look at decisions by Judge Grimm or Facciola or Peck or Waxse, they’re asking these questions.  Attorneys, of course, have been caught like the “deer in the headlights” in response to those questions and now they’re trying to pick up that knowledge.  If there’s one real trend I’m seeing this year, it’s that attorneys are finally taking technology seriously and trying to play catch up with their staff on understanding what all of this stuff is about.  Judges are irritated about it.  We have had major sanctions because of it.  And, if they had been paying attention for the last ten years, we wouldn’t be in the mess that we are now.

Of course, some people disagree and think that the sheer volume of data that we have is contributing to that and folks like Ralph Losey, who I respect, think we should tweak the rules to change what’s relevant.  It shouldn’t be anything that reasonably could lead to something of value in the case, we should “ratchet it down” so that the volume is reduced.  My feeling on that is that we’ve got the technology tools to reduce the volume – if they’re used properly.  The tools are better now than they were three years ago, but we had the tools to do that for awhile.  There’s no reason for these whole scale “data dumps” that we see, and I forget if it was either Judge Grimm or Facciola who had a case where in his opinion he said “we’ve got to stop with these boilerplate requests for discovery and responses for requests for discovery and make them specific”.

So, that’s the trend I see, that lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data.  Get a life, get a grip.  Use the tools that are out there that have been given to you for years.  So, if I sound cynical, it’s because I am.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the final afternoon of LTNY}  Well, as always, a good show.  This year, I think it was a great show, which is actually a bit of a surprise to me.  I was worried, not that it would go down from last year, but that we had maybe flattened out because of the economy (and the weather).  But, the turnout was great, the exhibit halls were great, a lot of good information.  I think we’re seeing a couple of trends from vendors in general, especially in the eDiscovery space.  We’re seeing vendors trying to consolidate.  I think attorneys who work in this space are concerned with moving large amounts of data from one stage of the EDRM model to another.  That’s problematic, because of the time and energy involved, the possible hazards involved and even authentication issues involved.  So, the response to that is that some vendors attempt to do “end-to-end” or at least do three out of the six stages and reduce the movement or partner with each other with open APIs and transparent calls, so that process is easier.

At the same time, we’re seeing the process faster and more efficient with increased speed times for ingestion and processing, which is great.  Maybe a bigger trend and one that will play out as the year goes along is a change in the pricing model, clearly getting away from per GB pricing to some other alternative such as, maybe, per case or per matter.  Because of the huge amount of data we have do so.  But also, we’re leaving out an area that Craig Ball addressed last year with his EDna challenge – what about the low end of the spectrum?  This is great if you’re Pillsbury or DLA Piper or Fulbright & Jaworski – they can afford Clearwell or Catalyst or Relativity and can afford to call in KPMG or Deloitte.  But, what about the smaller cases?  They can benefit from technology as well.  Craig addressed it with his EDna challenge for the $1,000 case and asked people to respond within those parameters.  Browning Marean and I were asking “what about the $500,000 case?”  Not that there’s anything bad about low end technology, you can use Adobe and S1 and some simple databases to do a great job.  But, what about in the middle, where I still can’t afford to buy Relativity and I still can’t afford to process with Clearwell?  What am I going to use?  And, that’s where I think new pricing and some of the new products will address that.  I’ve seen some hot new products, especially cloud based products, for small firms.  That’s a big change for this year’s show, which, since it’s in New York, has been geared to big firms and big cases.

What are you working on that you’d like our readers to know about?

I think the things that excite me the most that are going on this year are the educational efforts I’m involved in.  They include Ralph Losey’s online educational series through his blog, eDiscovery Team and Craig Ball through the eDiscovery Training Academy at Georgetown Law School in June.  Both are very exciting.

And, my organization, the Gulf Coast Legal Technology Center continues to do a lot of CLE and pro-bono activities for the Mississippi and Louisiana bar, which are still primarily small firms.  We also continue to assist Gulf Coast firms with technology needs as they continue to rebuild their legal technology infrastructure after Katrina.

Thanks, Tom, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Managing an eDiscovery Contract Review Team: Keep the Staff Motivated
 

In the last blog post, we talked about steps you can take to ensure high-quality, consistent work from a contract review staff.  There is one more, very important thing you should do:  keep the staff motivated.  There is no question that a motivated, content staff will produce better work than a staff that is indifferent.  Here are a few things you can do:

  • Give them the big picture:  Let the review staff know how their work fits into the overall litigation process, how their work product will be used, and how important their contribution is to the case.
  • Keep them up-to-date on the status of the case:  Let them know what’s going on.  Tell them when case milestones have been met, when initial production deadlines have been met, and what the attorneys are doing.  
  • Have senior attorneys give them some attention:  Ask senior attorneys on the case to stop by periodically and speak to the group.  This, more than anything, will reinforce how important their work is to the case.
  • Give frequent feedback to each member of the team:  Each supervisor should be responsible for giving regular feedback to members of the team.  This should be a daily task, done with team members on a rotating basis.  Every team member – even those doing excellent work – should get one-on-one time with the supervisor. 
  • Make sure the work environment is comfortable and pleasant:  Things like good lighting, comfortable chairs, good ventilation and a comfortable temperature can have a huge effect on both morale and productivity.

What do you do to keep a contract review staff motivated?  Do you have suggestions you can share with us?  Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: George Socha of Socha Consulting
 

This is the seventh of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are eight active projects with over 300 members from 81 participating organizations. George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

On the very “flip” side, the number one trend to date in 2011 is predictions about trends in 2011.  They are part of a consistent and long-term pattern, which is that many of these trend predictions are not trend predictions at all – they are marketing material and the prediction is “you will buy my product or service in the coming year”.

That said, there are a couple of things of note.  Since I understand you talked to Tom about Apersee, it’s worth noting that corporations are struggling with working through a list of providers to find out who provides what services.  You would figure that there is somewhere in the range of 500 or so total providers.  But, my ever-growing list, which includes both external and law firm providers, is at more than 1,200.  Of course, some of those are probably not around anymore, but I am confident that there are at least 200-300 that I do not yet have on the list.  My guess when the list shakes out is that there are roughly 1,100 active providers out there today.  If you look at information from the National Center for State Courts and the Federal Judicial Center, you’ll see that there are about 11 million new lawsuits filed every year.  I saw an article in the Cornell Law Forum a week or two ago which indicated that there are roughly 1.1 million lawyers in the country.  So, there are 11 million lawsuits, 1.1 million lawyers and 1,100 providers.  Most of those lawyers have no experience with eDiscovery and most of those lawsuits have no provider involved, which means eDiscovery is still very much an emerging market, not even close to being a mature market.  As fast as providers disappear, through attrition or acquisition, new providers enter the market to take their place.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the second afternoon of LTNY}  Maybe this is overly optimistic, but part of what I’m seeing in leading up to the conference, on various web sites and at the conference itself, is that a series of incremental changes taking place over a long period are finally leading to some radical differences.  One of those differences is that we finally are reaching a point where a number of providers can make the claim to being “end-to-end providers” with some legitimacy.  For as long as we’ve had the EDRM model, we’ve had providers that have professed to cover the full EDRM landscape, by which they generally have meant Identification through Production.  A growing number of providers not only cover that portion of the EDRM spectrum but have some ability to address Information Management, Presentation, or both   By and large, those providers are getting there by building their software and services based on experience and learning over the past 8 to 10 to 12 years, introducing new offerings at the show that reflect that learned experience.

A couple of days ago, I only half-jokingly issued “the Dyson challenge” (as in the Dyson vacuum cleaner).  Every year, come January, our living room carpet is strewn with pine tree needles and none of the vacuum cleaners that we have ever had have done a good job of picking up those needles.  The Dyson vacuum cleaner claims it cyclones capture more dirt than anything, but I was convinced that could not include those needles.  Nonetheless I tried, and to my surprise it worked like a charm!  I want to see the providers offering products able to perform at that high level, not just meeting but exceeding expectations.

I also see a feeling of excitement and optimism that wasn’t apparent at last year’s show.

What are you working on that you’d like our readers to know about?

As I mentioned, we have launched the Apersee web site, designed to allow consumers to find providers and products that fit their specific needs.  The site is in beta and the link is live.  It’s in beta because we’re still working on features to make it as useful as possible to customers and providers.  We’re hoping it’s a question of weeks, not months, before those features are implemented.  Once we go fully live, we will go two months with the system “wide open” – where every consumer can see all the provider and product information that any provider has put in the system.  After that, consumers will be able to see full provider and product profiles for providers who have purchased blocks of views.  Even if a provider does not purchase views, all selection criteria it enters are searchable, but search results will display only the provider’s name and website name.  Providers will be able to get stats on queries and how many times their information is viewed, but not detailed information as to which customers are connecting and performing the queries.

As for EDRM, we continue to make progress with an array of projects and a growing number of collaborative efforts, such as the work the Data Set group has down with TREC Legal and the work the Metrics group has done with the LEDES Committee. We not only want to see membership continue to grow, but we also want to continue to push for more active participation to continue to make progress in the various working groups.  We’ve just met at the show here regarding the EDRM Testing pilot project to address testing standards.  There are very few guidelines for testing of electronic discovery software and services, so the Testing project will become a full EDRM project as of the EDRM annual meeting this May to begin to address the need for those guidelines.

Thanks, George, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Deidre Paknad of PSS Systems
 

This is the sixth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Deidre Paknad.  Deidre is President & CEO of PSS Systems, an IBM Company.  Deidre is widely credited with having conceived of and launched the first commercial applications for legal holds, collections and retention management in 2004. A well-known thought leader in the legal and information governance domain, Deidre founded the Compliance, Governance and Oversight Council (CGOC), a professional community on retention and preservation that analyst firm IDC labeled a "think tank." She has been a member of several Sedona working groups since 2005 and leads the EDRM Information Management Reference Model (IMRM) working group.  Deidre is a seasoned entrepreneur and executive with 20 years' experience applying technology to poor-functioning business processes to reduce cost and risk. Prior to PSS, she helped Certus launch its Sarbanes Oxley software solution. Deidre previously founded and was CEO of CoVia Technologies from 1996 to 2000, where she was inducted into the Smithsonian Institution for innovation in 1999 and again in 2000.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

Well, certainly the social media explosion is one of the most talked about current trends.  Social media has brought about a huge change in the way we communicate, both personally and within organizations.  It’s one of the factors that is causing organizations to revisit where information comes from, where “messages” come from.  And, now there are more communications via social media than email.  In 2010, there were an estimated 1 trillion emails sent worldwide, but 89% of all emails sent is spam, so the number of “true emails” is far less, only about 110 billion.  Conversely, there were nearly 400 billion Facebook communications last year, over 700 billion views on YouTube and over 200 billion Twitter messages.  Organizations will have to face forward in addressing new sources of data and how to handle them as there will continue to be more social media communications (many viewed via mobile devices) with customers, employees, etc.  While most corporate social media tools today aren’t “discovery ready”, social and mobile media may level the information playing field between small and large litigants.

Another trend on which organizations are finally focusing more, that has been a significant focus of mine for some time, is information governance.  Since the Federal evidence rules were extended to electronic data in 2006, preservation sanctions are at an all-time high, despite the fact that organizations have adopted a mindset of “save everything”, which has led to unrestrained growth in data within organizations.  So, saving more data did not translate to less risk for organizations, but it did translate to more cost.  As noted in the 2009 Fulbright & Jaworski Litigation Report, the average cost to collect, cull and review information per case for large organizations has risen to $3 million, but the amount of that reviewed data that needed to be retained was only 30% and 70% was wasteful legal effort.   Even worse, organizations are spending 3.5% of revenues on information management – for the Fortune 50, that’s several billion dollars and a good chunk of it goes to managing unnecessary information and infrastructure.

Last year, the CGOC conducted a survey of legal, records management (RIM) and IT practitioners in Global 1000 companies and published the findings in an October report titled Information Governance Benchmark Report in Global 1000 Companies (You can request a copy of the report here and read eDiscovery Daily’s blog post about it here.).  75% of respondents identified the inability to defensibly dispose of data as their greatest challenge, and 70% of respondents indicated that they depend on “liaisons and people glue” to link discovery and regulatory obligations to information.  It’s an enterprise issue where Legal understands the obligations for data, business teams know the information value of the data and IT has the data, but no visibility to its obligations or business value.  So, there’s a big disconnect.

I think you’ll see that information governance and eDiscovery in general will become more connected to the overall business strategy.  When asked what they believe are the essential elements of information governance, 77% agreed retention schedules that reflect both regulatory and business needs and 85% of respondents agreed consistent collaboration and systematic linkage across legal, records and IT and were essential elements.  I think the Information Governance Benchmark Report has opened some eyes as to the importance of associating the legal obligations for and value of information to the assets IT is managing and the benefits of connecting legal, records and IT stakeholders and processes as an essential corporate strategy.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the second afternoon of LTNY}  I think there’s some “retreading” of topics at this year’s show, for example, the Legal vs. IT keynote speech.  That’s really more of an issue for 2 or 3 years ago.  Legal and IT do collaborate narrowly on discovery responsiveness.  But the issues of the day are more at an overall company level – high costs and high risk associated with the unrestrained growth in data are caused by practices across the company, not just in the legal department.   Responding to discovery simply deals with the symptoms, but doesn’t treat the disease.

I think discussion about FRCP reform aimed at easing the burden of discovery is more timely and survey data from the CGOC community published in the legal holds and information governance benchmark reports provided evidence in the FRCP Preservation Comment of November 10, 2010 of the need to reshape the rules to reflect current needs.

What are you working on that you’d like our readers to know about?

Well, in addition to the significant reception that the information governance benchmark report has received, CGOC just conducted its 2011 Summit last month, with participation from a number of large corporations including Exxon Mobil, Travelers, Bank of America and Novartis.  The Summit included a number of presentations, and a mock discovery hearing conducted by Judge {Andrew J.} Peck {Magistrate Judge, SDNY} on how prevailing practices break down in cases like Harkabi where everyone took the right steps but still got the wrong results.  It also included breakout sessions for Legal, RIM and IT to discuss prevailing practices for discovery, retention and data disposal, improving processes within each of these departments to support the enterprise as well as starting and advancing the cross-functional dialogue between the departments.

I’m also very excited about the IMRM project within EDRM, a group I co-chair.  It aims to offer guidance and a responsibility framework for Legal, IT, Records Management, line-of-business leaders and other business stakeholders within organizations.  It’s an entirely new reference model that is a separate counterpart to EDRM and the model links the duty and value to information assets to result in efficient and effective management of information.

There is nothing I’m more excited about, however, than working with my new colleagues at IBM on solutions that help our customers to do rigorous, efficient eDiscovery, value-based retention, smarter archiving and defensible disposal. 

Thanks, Deidre, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Managing an eDiscovery Contract Review Team: Ensuring High-Quality, Consistent Work

The most common problem with work product done by a group is inconsistent work – which means that some of the work has been done wrong.  This is a problem, however, that can be avoided.  Of course there will always be some inconsistencies, but there are steps that you can take and procedures that you can follow that will minimize inconsistencies and result in high-quality work.  Let’s go over those.

  • Continuously sample the documents that are coming through the pipeline:  Regardless of how much time you spent looking at the documents before the project started, there will be surprises in the collection.  And often, similar documents appear together in a collection.  Your project will run much smoother if you know what’s coming before the documents are in the hands of the reviewer.  Have supervisors spend time each day looking at what’s coming next.  When you see documents that will be new to the group, alert the staff.  Have a short meeting with the group.  Show them what they’ll be seeing and tell them how to categorize the documents.
  • Disseminate updated rules and new examples:  As you move through the review, you’ll be continuously seeing new types of documents and refining the criteria to cover what you are seeing.  Make sure this information gets disseminated to the staff.  Update the criteria frequently (in the beginning, this may be daily) and distribute the revised rules and examples to the staff.  Have meetings with the staff to go over new rules.  While meetings will disrupt the work, it will save you time in the long run – time in having to do re-work and fix errors.
  • Quality Control:  As soon as you can, identify members of the review team to do quality control work and make it their job to review the work of the review staff.  At first, they’ll probably need to look at everything.  As the project progresses, they should be able to sample the work.
  • Attorney sampling:  Attorneys should sample work product throughout the life of the project.  They should spot-check the documents in each category (responsive, not responsive, and privileged).

What steps do you take to ensure that a review team is doing high-quality work?  Have you run into glitches?  Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: Jack Halprin of Autonomy
 

This is the fifth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jack Halprin.  As Vice President, eDiscovery and Compliance with Autonomy, Jack serves as internal and external legal subject matter expert for best practices and defensible processes around litigation, electronic discovery, legal hold, and compliance issues. He speaks frequently on enterprise legal risk management, compliance, and eDiscovery at industry events and seminars, and has authored numerous articles on eDiscovery, legal hold, social media, and knowledge management. He is actively involved in The Sedona Conference, ACC, and Electronic Discovery Reference Model (EDRM). With a BA in Chemistry from Yale University, a JD from the University of California-Los Angeles, and certifications from the California, Connecticut, Virginia and Patent Bars, Mr. Halprin has varied expertise that lends itself well to both the legal and technical aspects of electronic discovery collection and preservation.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

If I look at the overall trends, social media and the cloud are probably the two hottest topics from a technology perspective and also a data management perspective.  From the legal perspective, you’re looking at preservation issues and sanctions as well as the idea of proportionality.  You also see a greater need for technology that can meet the needs of attorneys and understand the meaning of information.  More and more, everyone is realizing that keyword searches are lacking – they aren’t really as effective as everyone thinks they are.

We’re also starting to see two other technology related trends.  The industry is consolidating and customers are really starting to look for a single platform.  The current process of importing/exporting of data from storage to legal hold collection, to early case assessment, to review, to production and creating several extra copies of the documents in the process is not manageable going forward.  Customers want to be able to preserve in place, to analyze in place, and they don’t want to have to collect and duplicate the data again and again.  If you look at the left side of EDRM, the more proactive side, they don’t want put data or documents in a special repository unless it’s a true record that no one needs to access on a regular basis.  They want to work with active data where it lives.

You’ll see a reduction in the number of vendors in the next year or two, and the technology will not only be able to handle the current data sources, but the increased data volumes and new types of data we’re seeing.  Everyone is looking at social media and saying “how are we going to handle this”, when it’s really just another data source that has to be addressed.  Yes, it’s challenging because there is so much of it and it is even more conversational than email, taking it to a whole new level, but it’s really no different from other data sources.  A keyword search on a social media site is not going to net you the results you’re looking for, but conceptual search to understand the context of what people mean will help you identify the relevant information.  Growth rates are predicted at more than 60 percent for unstructured information, but social media is growing at a much faster clip.  A lot of people are looking at social media and moving to the cloud to manage this data, reducing some of the infrastructure costs, taking strain off the network and reducing their IT footprint.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the first afternoon of LTNY}  I’ll take it first from the Autonomy perspective.  We have social media solutions, which we’ve had for our marketing business (Interwoven) for some time.  We’ve also had social media governance technology for quite some time as well, and we announced today new capabilities for identifying, preserving and collecting social media for eDiscovery, which is part of and builds on our end-to-end solution.  I haven’t spent much time on the floor yet, but based on everything I’ve seen in the eDiscovery space, a lot of people are talking about social media, but no one really understands how to address it.  You’ve got people scraping {social media} pages, but if you scrape the page without the active link or without capturing the context behind it, you’re missing the wealth of the information.  We’re taking a different approach, we take the entire page, including the context and active links.

There’s also a wide disparity in terms of the cloud.  Is it public?  Is it private?  How much control do you have over your data when it’s in the cloud?  You’ve got a lot of vendors out there that aren’t transparent about their data centers.  You’ve got vendors that say they’re SAS 70 Type II certified, but it’s their data center, not the vendor itself, that is certified.  So, who’s got the experience?  Every year at LegalTech, there are probably forty new vendors out there and the next year, half or more of them are gone.

As for the tone of the show, I think it’s certainly more upbeat than last year when attendance was down, and it’s a bit more “bouncy” this year.  With that in mind, you’ll continue to see acquisitions and you’ll have the issue companies merged through acquisition using different technologies and different search engines, meaning they’re not on a single platform and not really a single solution.  So, that gets back to the idea that customers are really looking for a single platform with a single engine underneath it.  That’s how we approach it, and I think others are trying to get to that point, but I don’t think there are many vendors there yet.  That’s where the trend is heading.

What are you working on that you’d like our readers to know about?

In addition to the new social media eDiscovery capabilities described above, we’ve announced the Autonomy Chaining Console, which is a dashboard to provide corporate legal departments with greater visibility and defensibility across the entire process and to eliminate those risky data import/export handoffs through each step.  Many of the larger corporations have hundreds of cases, dozens of outside law firms, and terabytes of data to manage.  The process today is very “silo” oriented – data is sent to processing vendors, it is sent to law firms, etc.  So, you get these “weak links in the chain” where data can get lost and risks of spoliation and costs increase.  Autonomy announced the whole idea of chaining last year promoting the idea that we can seamlessly connect law firms and their corporate clients in a secure manner, so that the law firm can login to a secure portal and can manage the data that they’re allowed to access.  The Chaining Console strengthens that capability, and it adds Autonomy IDOL’s ability to understand meaning and allows corporate and outside counsel to look at the same data on the same solution.  It uses IDOL to determine potential custodians, understand fact patterns and identify other companies that may be involved by really analyzing the data and providing an understanding of what’s there.  It can also monitor and track risk, so you can set up certain policies around key issues; for example, insider trading, securities fraud, FCPA, etc.  Using those policies, it can alert you to the risks that are there and possibly identify the custodians that are engaging in risky behavior.  And, of course, it tracks the data from start to finish, giving corporate counsel, legal IT, IT, litigation support, litigation counsel as well as outside counsel a single view of the data on a single dashboard.  It strengthens our message and takes us to the next step in really providing the end-to-end platform for our clients.

We’ve also announced iManage in the cloud for legal information management in the cloud.  The cloud-based Information Management platform combines WorkSite, Records Manager, Universal Search, Process Automation and ConflictsManager to help attorneys manage the content throughout the matter lifecycle from inception to disposition.  It uses IDOL’s ability to group concepts, so if you have a conflict with Apple, it knows that you’re searching for terms related to Apple computer such as Mac, iPhone, Steve Jobs, Steve Wozniak, Jonathon Ives and understands that these are related terms and individuals.  And, we’ve just announced the cloud-based version of that.  We’re already managing information governance in the cloud for a lot of our clients and the platform leverages our private cloud, which is the world’s largest private cloud with over 17 petabytes of data.

And, then we have a market leadership announcement with additional major law firms that are using our solutions, such as Brownstein Hyatt Farber Schreck LLP, Brown Rudnick LLP, Fennemore Craig, etc.  So, we have four press releases with new developments at Autonomy that we’ve announced here at the show.

Thanks, Jack, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Managing an eDiscovery Contract Review Team: Keeping Decisions in the Hands of the Attorneys
 

The main objective in most document reviews is to categorize each document into one of three categories:

  • Responsive, to be produced
  • Not Responsive
  • Privileged

Attorneys on the litigation team will make the decisions regarding how to categorize the documents, and the contract review staff will implement those decisions.  Before the review even starts, you’ve done a lot of work to ensure that this process will work well:

  • You sampled the collection, looked at a lot of documents, and made decisions regarding how to categorize them
  • You drafted detailed, objective criteria that encapsulates that work product
  • You thoroughly trained the contract staff

And, you’ve staffed the project in a hierarchy that works well for keeping decisions in the hands of the attorneys.  Let’s review how this works in practice.

The base of your project is made up of contract reviewers who have been trained and armed with solid, objective criteria.  They won’t make decisions regarding what constitutes responsiveness or privilege.  They are simply applying rules that have already been developed by attorneys responsible for the case.  When a reviewer comes across a document that isn’t covered by the rules, they bring it to a supervisor.  The supervisor won’t make substantive decisions either, but the supervisor has had more access to the attorneys and broader exposure to the document collection than an individual reviewer, so the supervisor will in many cases know how to categorize a document in question.  When the supervisor can’t do that, it gets kicked up to the next level (most likely the project manager) who has yet broader exposure to the collection.  Some documents will get funneled up to an attorney for a decision.  In fact, that’s likely to happen frequently at the start of the project.  That’s why it’s important that attorney decision-makers are on-site and available full-time in the beginning.  As the project moves forward, you may be able to get by with attorneys being available remotely.

There are other steps you’ll take and mechanisms that you’ll employ to ensure that this model works well.  We’ll cover those in the next post in this series.

How do you structure and manage a document review project?  Please share any comments you have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: Christine Musil of Informative Graphics Corporation (IGC)
 

This is the fourth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Christine Musil.  Christine has a diverse career in engineering and marketing spanning 15 years. Christine has been with IGC since March 1996, when she started as a technical writer and a quality assurance engineer. After moving to marketing in 2001, she has applied her in-depth knowledge of IGC's products and benefits to marketing initiatives, including branding, overall messaging, and public relations. She has also been a contributing author to a number of publications on archiving formats, redaction, and viewing technology in the enterprise.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

For us, the biggest trend is elevation of the importance of eDiscovery, from what happens the minute you find out you have a lawsuit until the end of the case.  There’s a lot more discussion about how you can prevent it, how you can be better prepared, and I think that’s where the new buzzword, information governance, comes in.  We partner with OpenText and we partner with EMC on their content management side and we definitely see them pushing into the eDiscovery market to provide an end-to-end solution and stop trying to treat eDiscovery as an isolated issue. I think that the elevation of eDiscovery and inclusion of eDiscovery more into the regular business workflow of an organization is a pretty significant trend to watch.

Another trend that I see is an elevation of the use of search and how people can get more out of their searches to save time and cost.  This may be somewhat skewed based on our perspective in the market, but we’ve had a lot of requests for our redaction software to pick up the search that has already been done. Providers work so hard to come up with amazingly complicated algorithms to find data.  Why reinvent the wheel?  The companies all ask why all the other vendors can’t just take those search results and use it. 

Since you’ve written a white paper about native review and redaction, where do you see that heading?  Well, I hope that people will stop printing things out, scanning it back in to TIFF, then OCRing it and handing everybody back a disk of flat images and a separate disk with OCR text.  I sort of understand why they do it, but I think a less paranoid or adversarial approach through more effective “meet and confer” agreements on how you are going to present things are going to make it so much easier for everybody.  I hope in three to five years people say “I’m not afraid to hand you my native files because I know how to check them and know what metadata they contain and whether there are any tracked changes or other potential issues”.  So, the paranoia and fear that people have about the unknown that they can’t see in their documents and whether there is a smoking gun in there should die down.  I think people are getting smarter – now that they’re not producing paper – as to what  electronic files contain.  Hopefully, they will understand that native format is OK and when they need to redact, it’s OK to use PDF format to do so.  You tell the other side what you’re doing and what they’re going to get and it becomes a more open and well understood process.

I’m also on the EDRM XML committee and hope a standard load file format that transmits data seamlessly from one side to the other and contains all the information about what has been redacted, among other things, will make things easier on everybody, getting information through the process more seamlessly.  We’re writing white papers about the data set to educate the vendors on how to use it and I have high hopes for what we will be able to accomplish there.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the first morning of LTNY}  Well, that’s hard since LegalTech just started [smiles].  I can tell you that in discussions with some of our partners, we’re seeing more support for mobile devices, support for the iPad, etc., to help lawyers work wherever they are and be more efficient wherever they are.  And, I think that literally goes all the way to the courtroom.  So, you’re seeing support for more devices and smaller screens, wherever attorneys get information.

What are you working on that you’d like our readers to know about?

I’m moderating a panel discussion {at LegalTech} titled, The Debate on Native Format Production and Redaction, which includes Craig Ball, George Socha, Tom O’Connor and Browning Marean.  I wrote a white paper last year entitled The Reality of Native Format Production and Redaction, which has inspired this panel discussion here at LegalTech.  So, that should be informative and interesting.  We’ve noticed that there’s just an awful lot of confusion in terms of what’s really required and what’s acceptable and the white paper and panel discussion really speaks to that.  We’re trying to educate our customers and help our partners educate their clients.

The other thing we’re announcing here is the release of integration to OpenText eDOCS.  We’ve been partners with OpenText for content management since 2002 and are very excited to extend our partnership to include this new area. eDOCS has a great presence in the legal space and we look forward to working with them.

Thanks, Christine, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!