eDiscovery Daily Blog

• February 25, 2011

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!