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Industry Trends

eDiscovery Trends: 2011 eDiscovery Errors Survey
 

As noted in Legal IT Professionals on Friday, LDM Global on Friday announced the results of its 2011 eDiscovery Errors survey. The company asked a selection of industry professionals their views on which errors they experienced most often during the discovery process. Results were collected from across the USA, Europe and Australia.

According to Scott Merrick, LDM Global Marketing Director and survey author, “Our goal was to find out what the real, day to day issues and problems are around the discovery process.”  He also noted that “Of particular interest was the ongoing challenge of good communication. Technology has not solved that challenge and it remains at the forefront of where mistakes are made.”

The respondents of the survey were broken down into the following groups: Litigation Support Professionals 47%, Lawyers 30%, Paralegals 11%, IT Professionals 9% and Others 3%.  Geographically, the United States and Europe had 46% of the respondents each, with the remaining 8% of respondents coming from Australia.  LDM Global did not identify the total number of respondents to the survey.

For each question about errors, respondents were asked to classify the error as “frequently occurs”, “occasionally occurs”, “not very common” or “never occurs”.  Based on responses, the most common errors are:

  • Failure to Effectively Communicate across Teams: 50% of the respondents identified this error as one that frequently occurs
  • An Inadequate Data Retention Policy: 47% of the respondents identified this error as one that frequently occurs
  • Not Collecting all Pertinent Data: 41% of the respondents identified this error as one that frequently occurs
  • Failure to Perform Critical Quality Control (i.e., sampling): 40% of the respondents identified this error as one that frequently occurs
  • Badly Thought Out, or Badly Implemented, Policy: 40% of the respondents identified this error as one that frequently occurs

Perhaps one of the most surprising results is that only 14% of respondents identified Spoliation of evidence, or the inability to preserve relevant emails as an error that frequently occurs.  So, why are there so many cases in which sanctions have been issued for that very issue?  Interesting…

For complete survey results, go to LDMGlobal.com.

So, what do you think?  What are the most common eDiscovery errors that your organization has encountered?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Sedona Conference Database Principles
 

A few months ago, eDiscovery Daily posted about discovery of databases and how few legal teams understand database discovery and know how to handle it.  We provided a little pop quiz to test your knowledge of databases, with the answers here.

Last month, The Sedona Conference® Working Group on Electronic Document Retention & Production (WG1) published the Public Comment Version of The Sedona Conference® Database Principles – Addressing the Preservation & Production of Databases &Database Information in Civil Litigation to provide guidance and recommendations to both requesting and producing parties to simplify discovery of databases and information derived from databases.  You can download the publication here.

As noted in the Executive Overview of the publication, some of the issues that make database discovery so challenging include:

  • More enterprise-level information is being stored in searchable data repositories, rather than in discrete electronic files,
  • The diverse and complicated ways in which database information can be stored has made it difficult to develop universal “best-practice” approaches to requesting and producing information stored in databases,
  • Retention guidelines that make sense for archival databases (databases that add new information without deleting past records) rapidly break down when applied to transactional databases where much of the system’s data may be retained for a limited time – as short as thirty days or even thirty seconds.

The commentary is broken into three primary sections:

  • Section I: Introduction to databases and database theory,
  • Section II: Application of The Sedona Principles, designed for all forms of ESI, to discovery of databases,
  • Section III: Proposal of six new Principles that pertain specifically to databases with commentary to support the Working Group’s recommendations.  The principles are stated as follows:
    • Absent a specific showing of need or relevance, a requesting party is entitled only to database fields that contain relevant information, not the entire database in which the information resides or the underlying database application or database engine.
    • Due to differences in the way that information is stored or programmed into a database, not all information in a database may be equally accessible, and a party’s request for such information must be analyzed for relevance and proportionality.
    • Requesting and responding parties should use empirical information, such as that generated from test queries and pilot projects, to ascertain the burden to produce information stored in databases and to reach consensus on the scope of discovery.
    • A responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.
    • Verifying information that has been correctly exported from a larger database or repository is a separate analysis from establishing the accuracy, authenticity, or admissibility of the substantive information contained within the data.
    • The way in which a requesting party intends to use database information is an important factor in determining an appropriate format of production.

To submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

eDiscovery Daily will be delving into this document in more detail in future posts.  Stay tuned!

So, what do you think?  Do you have a need for guidelines for database discovery?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Jurors and Social Media Don’t Mix

Discovery of social media is continuing to increase as a significant issue for organizations to address, with more and more cases addressing the topic, including this one and this one that have reached various conclusions regarding the discoverability of social media.  However, when it comes to social media, courts agree on one thing: jurors and social media don’t mix.  Courts have consistently rejected attempts by jurors to use social technology to research or to communicate about a case, and have increasingly provided pre-trial and post-closing jury instructions to jurors to dissuade them from engaging in this practice.

A recent example of juror misconduct related to social media is this case, where one of the jurors actually attempted to “Friend” one of the defendants on Facebook.  With so much information at our disposal these days and so many ways to communicate, some jurors can be easily tempted to ignore court instructions and behave badly.

At its December 2009 meeting, the Judicial Conference Committee on Court Administration and Case Management (CACM) endorsed a set of suggested jury instructions for district judges to consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.  These proposed instructions were published in thisMemorandum in late January.  These instructions were designed to prevent jurors from two activities:

  1. Independently researching a case, including through the internet or other electronic means,
  2. Communicating about the case, including by electronic means such as email or social media sites such as Facebook.

Several states, such as California and New York, have crafted and adopted their own instructions to regulate the use of social media and other electronic means to research a case.  It seems like a “no-brainer” that every state will eventually be forced to promote or adopt such instructions.  Of course, it also seems like a “no-brainer” for jurors to refrain from such activities anyway, but I guess this is the world we live in today, right?

So, what do you think?  Does your state have standard jury instructions prohibiting social media use?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Forbes on the Rise of Predictive Coding
 

First the New York Times with an article about eDiscovery, now Forbes.  Who’s next, The Wall Street Journal?  😉

Forbes published a blog post entitled E-Discovery And the Rise of Predictive Coding a few days ago.  Written by Ben Kerschberg, Founder of Consero Group LLC, it gets into some legal issues and considerations regarding predictive coding that are interesting.  For some background on predictive coding, check out our December blog posts, here and here.

First, the author provides a very brief history of document review, starting with bankers boxes and WordPerfect and “[a]fter an interim phase best characterized by simple keyword searches and optical character recognition”, it evolved to predictive coding.  OK, that’s like saying that Gone with the Wind started with various suitors courting Scarlett O’Hara and after an interim phase best characterized by the Civil War, marriage and heartache, Rhett says to Scarlett, “Frankly, my dear, I don’t give a damn.”  A bit oversimplification of how review has evolved.

Nonetheless, the article gets into a couple of important legal issues raised by predictive coding.  They are:

  • Satisfying Reasonable Search Requirements: Whether counsel can utilize the benefits of predictive coding and still meet legal obligations to conduct a reasonable search for responsive documents under the federal rules.  The question is, what constitutes a reasonable search under Federal Rule 26(g)(1)(A), which requires that the responding attorney attest by signature that “with respect to a disclosure, it is complete and correct as of the time it is made”?
  • Protecting Privilege: Whether counsel can protect attorney-client privilege for their client when a privileged document is inadvertently disclosed.  Fed. Rule of. Evidence 502 provides that a court may order that a privilege or protection is not waived by disclosure if the disclosure was inadvertent and the holder of the privilege took reasonable steps to prevent disclosure.  Again, what’s reasonable?

The author concludes that the use of predictive coding is reasonable, because it a) makes document review more efficient by providing only those documents to the reviewer that have been selected by the algorithm; b) makes it more likely that responsive documents will be produced, saving time and resources; and c) refines relevant subsets for review, which can then be validated statistically.

So, what do you think?  Does predictive coding enable attorneys to satisfy these legal issues?   Is it reasonable?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Is Disclosure of Search Terms Required?
 

I read a terrific article a couple of days ago from the New York Law Journal via Law Technology News entitled Search Terms Are More Than Mere Words, that had some interesting takes about the disclosure of search terms in eDiscovery.  The article was written by David J. Kessler, Robert D. Owen, and Emily Johnston of Fulbright & Jaworski.  The primary emphasis of the article was with regard to the forced disclosure of search terms by courts.

In the age of “meet and confer”, it has become much more common for parties to agree to exchange search terms in a case to limit costs and increase transparency.  However, as the authors correctly note, search terms reflect counsel’s strategy for the case and, therefore, work product.  Their position is that courts should not force disclosure of search terms and that disclosure of terms is “not appropriate under the Federal Rules of Civil Procedure”.  The article provides a compelling argument as to why forced disclosure is not appropriate and provides some good case cites where courts have accepted or rejected requests to compel provision of search terms.  I won’t try to recap them all here – check out the article for more information.

So, should disclosure of search terms be generally required?  If not, what does that mean in terms of utilizing a defensible approach to searching?

Personally, I agree with the authors that forced disclosure of search terms is generally not appropriate, as it does reflect strategy and work product.  However, there is an obligation for each party to preserve, collect, review and produce all relevant materials to the best of their ability (that are not privileged, of course).  Searching is an integral part of that process.  And, the article does note that “chosen terms may come under scrutiny if there is a defect in the production”, though “[m]ere speculation or unfounded accusations” should not lead to a requirement to disclose search terms.

With that said, the biggest component of most eDiscovery collections today is email, and that email often reflects discussions between parties in the case.  In these cases, it’s much easier for opposing counsel to identify legitimate defects in the production because they have some of the same correspondence and documents and can often easily spot discrepancies in the production set.  If they identify legitimate omissions from the production, those omissions could cause the court to call into question your search procedures.  Therefore, it’s important to conduct a defensible approach to searching (such as the “STARR” approach I described in an earlier post) to be able to defend yourself if those questions arise.  Demonstrating a defensible approach to searching will offer the best chance to preserve your rights to protect your work product of search terms that reflect your case strategy.

So, what do you think?  Do you think that forced disclosure of search terms is appropriate?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: What is “Reduping?”
 

As emails are sent out to multiple custodians, deduplication (or “deduping”) has become a common practice to eliminate multiple copies of the same email or file from the review collection, saving considerable review costs and ensuring consistency by not having different reviewers apply different responsiveness or privilege determinations to the same file (e.g., one copy of a file designated as privileged while the other is not may cause a privileged file to slip into the production set).  Deduping can be performed either across custodians in a case or within each custodian.

Everyone who works in electronic discovery knows what “deduping” is.  But how many of you know what “reduping” is?  Here’s the answer:

“Reduping” is the process of re-introducing duplicates back into the population for production after completing review.  There are a couple of reasons why a producing party may want to “redupe” the collection after review:

  • Deduping Not Requested by Receiving Party: As opposing parties in many cases still don’t conduct a meet and confer or discuss specifications for production, they may not have discussed whether or not to include duplicates in the production set.  In those cases, the producing party may choose to produce the duplicates, giving the receiving party more files to review and driving up their costs.  The attitude of the producing party can be “hey, they didn’t specify, so we’ll give them more than they asked for.”
  • Receiving Party May Want to See Who Has Copies of Specific Files: Sometimes, the receiving party does request that “dupes” are identified, but only within custodians, not across them.  In those cases, it’s because they want to see who had a copy of a specific email or file.  However, the producing party still doesn’t want to review the duplicates (because of increasing costs and the possibility of inconsistent designations), so they review a deduped collection and then redupe after review is complete.

Many review applications support the capability for reduping.  For example, FirstPass™, powered by Venio FPR™, suppresses the duplicates from review, but applies the same tags to the duplicates of any files tagged during first pass review.  When it’s time to export the collection, to either move the potentially responsive files on to linear review (in a product like OnDemand®) or straight to production, the user can decide at that time whether or not to export the dupes.  Those dupes have the same designations as the primary copies, ensuring consistency in handling them downstream.

So, what do you think?  Does your review tool support “reduping”?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily Celebrates its “Sixmonthiversary”
 

Six months ago yesterday, eDiscovery Daily was launched.  At the time of our launch, we pondered whether we were crazy to commit to a daily blog (albeit restricted to business days).  But, I guess it’s a sign of how much the eDiscovery industry has grown in that there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.  And, so far, we haven’t missed a business day yet (knock on wood!).

Six months is 3.5 dog years, but I’m not sure what it is in blog years.  Nonetheless, we’ve learned to crawl, are walking pretty well and are getting ready to run!  We’ve more than doubled viewership since the first month, with our four biggest “hit count” days all coming in the last 5 weeks and have more than quadrupled our subscriber base during that time!

And, we have you to thank for our growth to date!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Ride the Lightning, Litigation Support Blog.com, Adventures in Document Review, ABA Journal, ABC's of E-Discovery, Above the Law, EDD: Issues, Law, and Solutions, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

For those of you who are relatively new to eDiscovery Daily, here are some posts back from the early days you may have missed.  Enjoy!

eDiscovery Searching 101: Don’t Get “Wild” with Wildcards

eDiscovery Searching 101: It's a Mistake to Ignore the Mistakes

First Pass Review: Of Your Opponent’s Data

eDiscovery Project Management: Applying Project Management Techniques to Electronic Discovery

eDiscovery Case Study: Term List Searching for Deadline Emergencies!

SaaS and eDiscovery: Load Your Own Data

eDiscovery Trends: Despite What NY Times Says, Lawyers Not Going Away
 

There was a TV commercial in the mid-80’s where a soap opera actor delivered the line “I’m not a doctor, but I play one on TV”.  Can you remember the product it was advertising (without clicking on the link)?  If so, you win the trivia award of the day!  😉

I’m a technologist who has been working in litigation support and eDiscovery for over twenty years.  If you’ve been reading eDiscovery Daily for awhile, you’ve probably noticed that I’ve written several posts regarding significant case law as it pertains to eDiscovery.  I often feel that I should offer a disclaimer before each of these posts saying “I’m not a lawyer, but I play one on the Web”.  As the disclaimer at the bottom of the page stipulates, these posts aren’t meant to provide legal advice and it is not my intention to do so, but merely to identify cases that may be of interest to our readers and I try to provide a basic recap of these cases and leave it at that.  As Clint Eastwood once said, “A man’s got to know his limitations”.

A few days ago, The New York Times published an article entitled Armies of Expensive Lawyers, Replaced by Cheaper Software which discussed how, using ‘artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost’ (extraneous comma in the title notwithstanding).  The article goes on to discuss linguistic and sociological techniques for retrieval of relevant information and discusses how the Enron Corpus, available in a number of forms, including through EDRM, has enabled software providers to make great strides in analytical capabilities using this large base of data to use in testing.  It also discusses whether this will precipitate a march to the unemployment line for scores of attorneys.

A number of articles and posts since then have offered commentary as to whether that will be the case.  Technology tools will certainly reduce document populations significantly, but, as the article noted, “[t]he documents that the process kicks out still have to be read by someone”.  Not only that, the article still makes the assumption that people too often make with search technology – that it’s a “push a button and get your answer” approach to identifying relevant documents.  But, as has been noted in several cases and also here on this blog, searching is an iterative process where sampling the search results is recommended to confirm that the search maximizes recall and precision to the extent possible.  Who do you think is going to perform that sampling?  Lawyers – that’s who (working with technologists like me, of course!).  And, some searches will require multiple iterations of sampling and analysis before the search is optimized.

Therefore, while the “armies” of lawyers many not need near as many members of the infantry, they will still need plenty of corporals, sergeants, captains, colonels and generals.  And, for those entry-level reviewing attorneys that no longer have a place on review projects?  Well, we could always use a few more doctors on TV, right?  😉

So, what do you think?  Are you a review attorney that has been impacted by technology – positively or negatively?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Facebook’s Self-Collection Mechanism

One of the most enlightening revelations resulting from my interview with Craig Ball at LegalTech (published last Friday) was regarding a feature that he mentioned which Facebook added late last year that allows any user to download their information.  I thought it was such a significant bit of information that a post dedicated to the feature (in addition to the coverage in the interview) was warranted.

This feature is available via the Account Settings menu and enables users to collect their wall posts, friends lists, photos, videos, messaging, and any other personal content, save it into a Zip file and download the Zip file.  Craig also wrote about the feature in Law Technology News last month – that article is located here.

When you initiate the download, especially if you’re an active Facebook user, it may take Facebook a while to gather all information (several minutes or more, mine took about an hour).  Eventually, you’ll get an email to let you know that your information is packaged and ready for download.  Once you verify your identify by providing your password and click “Download Now”, you’ll get a Zip file containing a snapshot of your Facebook environment in a collection of HTML files with your Wall, Profile and other pages and copies of any content files (e.g., photos, videos, etc.) that you had uploaded.

Think about the significance of this for a moment.  Now, 500 million users of the most popular social network on the planet (which includes not just individuals, but organizations as well) have a mechanism to “self-collect” their data for their own use and safekeeping.  Or, they can “self-collect” for use in litigation.  In his article, Craig likens Facebook’s download function to Staples’ famous easy button.  How can an attorney argue an overly burdensome collection when you simply have to click a button?

With a social network behemoth like Facebook now offering this feature, will other social network and cloud solution providers soon follow?  Let’s hope so.  As Craig notes in his article, “maybe the cloud isn’t the eDiscovery headache some think”.  Spread the word!

So, what do you think?  Have you been involved in a case that could have benefited from a cloud-based self-collection tool?   Please share any comments you might have or if you’d like to know more about a particular topic.

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!