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Software as a Service (SaaS)

eDiscovery Best Practices: 4 Steps to Effective eDiscovery With Software Analytics
 

I read an interesting article from Texas Lawyer via Law.com entitled “4 Steps to Effective E-Discovery With Software Analytics” that has some interesting takes on project management principles related to eDiscovery and I’ve interjected some of my thoughts into the analysis below.  A copy of the full article is located here.  The steps are as follows:

1. With the vendor, negotiate clear terms that serve the project's key objectives.  The article notes the important of tying each collection and review milestone (e.g., collecting and imaging data; filtering data by file type; removing duplicates; processing data for review in a specific review platform; processing data to allow for optical character recognition (OCR) searching; and converting data into a tag image file format (TIFF) for final production to opposing counsel) to contract terms with the vendor. 

The specific milestones will vary – for example, conversion to TIFF may not be necessary if the parties agree to a native production – so it’s important to know the size and complexity of the project, and choose only an experienced eDiscovery vendor who can handle the variations.

2. Collect and process data.  Forensically sound data collection and culling of obviously unresponsive files (such as system files) to drastically decrease the overall review costs are key services that a vendor provides in this area.  As we’ve noted many times on this blog, effective culling can save considerable review costs – each gigabyte (GB) culled can save $16-$18K in attorney review costs.

The article notes that a hidden cost is the OCR process of translating extracted text into a searchable form and that it’s an optimal negotiation point with the vendor.  This may have been true when most collections were paper based, but as most collections today are electronic based, the percentage of documents requiring OCR is considerably less than it used to be.  However, it is important to be prepared that there are some native files which will be “image only”, such as TIFFs and scanned PDFs – those will require OCR to be effectively searched.

3. Select a data and document review platform.  Factors such as ease of use, robustness, and reliability of analytic tools, support staff accessibility to fix software bugs quickly, monthly user and hosting fees, and software training and support fees should be considered when selecting a document review platform.

The article notes that a hidden cost is selecting a platform with which the firm’s litigation support staff has no experience as follow-up consultation with the vendor could be costly.  This can be true, though a good vendor training program and an intuitive interface can minimize or even eliminate this component.

The article also notes that to take advantage of the vendor’s more modern technology “[a] viable option is to use a vendor's review platform that fits the needs of the current data set and then transfer the data to the in-house system”.  I’m not sure why the need exists to transfer the data back – there are a number of vendors that provide a cost-effective solution appropriate for the duration of the case.

4. Designate clear areas of responsibility.  By doing so, you minimize or eliminate inefficiencies in the project and the article mentions the RACI matrix to determine who is responsible (individuals responsible for performing each task, such as review or litigation support), accountable (the attorney in charge of discovery), consulted (the lead attorney on the case), and informed (the client).

Managing these areas of responsibility effectively is probably the biggest key to project success and the article does a nice job of providing a handy reference model (the RACI matrix) for defining responsibility within the project.

So, what do you think?  Do you have any specific thoughts about this article?   Please share any comments you might have or if you’d like to know more about a particular topic.

What eDiscovery Professionals Can Learn from the Internet Gambling Crack Down
 

Many of you may have heard about the FBI cracking down on the three largest online gambling sites in the past few days, as the owners of those sites in the United States have been indicted and charged with bank fraud, money laundering and illegal gambling offenses and the sites have been essentially shut down in the US.  Restraining orders have been issued against more than 75 bank accounts in 14 countries used by the poker companies PokerStars, Full Tilt Poker and Absolute Poker.  Many US customers of these sites are now scrambling to try to get their funds out of the sites and finding it difficult to do so.

So what?  This is an eDiscovery blog, right?  What does an Internet gambling crack down have to do with eDiscovery?

PokerStars, Full Tilt Poker, Absolute Poker and other gambling sites are cloud-based, Software-as-a-Service (SaaS) applications.  Just like Amazon, Facebook, Twitter, eBay, YouTube and SalesForce.com, these sites provide an application via the web that enables its clients to receive a service.  In the case of Amazon, it’s the ability to purchase any number of products.  For Facebook, it’s the ability to share information with friends and family.  For these gambling sites, it’s the ability to play poker for money with anyone else in the world who has the same gambling itch that you do and a broadband connection.

The problem is: in the US, it’s illegal.  The Unlawful Internet Gambling Enforcement Act of 2006 prohibits gambling businesses from knowingly accepting payments related to a bet or wager that involves the use of the Internet and that is unlawful under any federal or state law.  So, these sites are hosted in other countries to attempt to skirt the law.

What many US customers of these sites are finding out is the same thing that eDiscovery professionals discover when they need to retrieve cloud-based data in response to a discovery request: it’s imperative to know where your data is stored.  It’s likely that many customers of these gambling sites knew that their funds were kept off-shore, while others may not have known this was the case.  Regardless, they’re now scrambling to get their data (i.e., funds) back — if they can.

Many organizations are “in the same boat” when it comes to their SaaS providers – it may be unclear where that data is being stored and it may be difficult to retrieve if it’s stored in a foreign country with a different set of laws.  It’s important to establish (in writing if possible) with the provider up front where the data will be stored and agree on procedures such as records management/destruction schedules so that you know where your data is stored and can get access to it when you need it.  Don’t gamble with your data.

So, what do you think?  Do you have organizational data in a SaaS-based solution?  Do you have a plan for getting that data when you need it?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for Trial Solutions, which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).  Our clients’ data is hosted in a secured Tier 4 Data Center in Houston, Texas, where Trial Solutions is headquartered.

Working Successfully with eDiscovery and Litigation Support Service Providers: Other Evaluation Criteria
 

In the last posts in this blog series, we talked about evaluating service provider pricing, quality, scalability and flexibility.  There are a few other things you may wish to look at as well, that may be especially significant for large, long-term projects or relationships.  Those things are:

  1. Litigation Experience:  Select a service provider that has litigation experience versus general business experience.   A non-litigation service provider that does scanning — for example — may be able to technically meet your requirements.  They are probably not, however, accustomed to the inflexible schedules and changing priorities that are commonplace in litigation work.
  2. Corporate Profile and Tenure:  For a large project, be sure to select a service provider that’s been around for a while and has a proven track record.  You want to be confident that the service provider that starts your project will be around to finish your project.
  3. Security and Confidentiality:  You want to ensure that your documents, data, and information are secure and kept confidential.  This means that you require a secure physical facility, secure systems, and appropriate confidentiality guidelines and agreements.
  4. SaaS Service Providers: For them, you need to evaluate the technology functionality and ensure that it includes the features you require, that those features are easy to access and to use, and that access, system reliability, system speed, and system security meet your requirements.
  5. Facility Location and Accessibility:  For many projects and many types of services, it won’t be necessary to spend time on the project site.   For other projects, that might not be the case.  For example, if a service provide is staffing a large document review project at its facility, the litigation team may need to spend time at the facility overseeing work and doing quality control reviews.  In such a case, the geographic location and the facility’s access to airports and hotels may be a consideration.

A lot goes into selecting the right service provider for a project, and it’s worth the time and effort to do a careful, thorough evaluation.  In the next posts in this series, we’ll discuss the vendor evaluation and selection process.

What has been your experience with evaluating and selecting service providers?  What evaluation criteria have you found to be most important?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery 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!

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!

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!

eDiscovery Trends: Tom Gelbmann of Gelbmann & Associates, LLC
 

This is the first 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 that people in the industry are, or should be, focused on?
  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 Gelbmann. Tom is Principal of Gelbmann & Associates, LLC, co-author of the Socha-Gelbmann Electronic Discovery Survey and co-founder of the Electronic Discovery Reference Model (EDRM).  Since 1993, Gelbmann & Associates, LLC has helped law firms and Corporate Law Departments realize the full benefit of their investments in Information Technology.  As today is Valentine’s Day, consider this interview with Tom as eDiscoveryDaily’s Valentine’s Day present to you!

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

The first thing that comes to mind is the whole social media thing, which is something you’re probably getting quite a bit of (in your interviews), but with the explosion of the use of social media, personally and within organizations, we’re seeing a huge explosion (in eDiscovery).  One of the issues is that there is very little in terms of policy and management around that, and I look at it in a very similar vein to the late ’80s and early ‘90s when electronic mail came about and there were no real defining guidelines.  It wasn’t until we got to a precipitating event where “all of a sudden, organizations get religion” and say “oh my god, we better have a policy for this”.  So, I think the whole social media thing is one issue.

On top of that, another area that is somewhat of an umbrella to all this is information management and EDRM with the Information Management Reference Model (IMRM) is certainly part of that. What is important in this context is that corporations are beginning to realize the more they get their “electronic house in order”, the better off they’re going to be in many ways.  Less cost, less embarrassment and so forth.

The third thing is that, and this is something that I’ve been tracking for awhile, the growth in tools and solutions available for small organizations and small cases.  For a long time, everything was about millions of documents and gigabytes of data – that’s what got the headlines and that what the service bureaus and providers were focusing on.  The real “gold” in my mind is the small cases, the hundreds of thousands of small cases that are out there.  The providers that can effectively reach that market in a cost-effective way will be positioned very well and I think we’re starting to see that happen.  And, I think the whole “cloud” concept of technology is helping that.

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 the show} Well, so far it’s been a blur [laughs].  But, I think we’re definitely seeing social media as a big issue at this LegalTech and I also think we’re seeing more solutions toward the smaller cases and smaller organizations here at this year’s show.

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

From an EDRM standpoint, I just came from a meeting for the EDRM Testing pilot project.  Last fall, at the mid-year meeting, there was a groundswell to address testing, and the basic issue is applying some principles of testing to software products associated with electronic discovery to answer the question of “how do you know?” when the court asks if the results are true and what sort of testing process did you go through.  There is very little as far as a testing regimen or even guidelines on a testing regimen for electronic discovery software and so the EDRM testing group is looking to establish some guidelines, starting very basically looking at bands of rigor associated with bands of risk.  So, you will see that at this year’s EDRM annual meeting in May that EDRM Testing will become a full-fledged project.

And the other thing that I’m happy to announce is that George Socha and I have launched a web site called Apersee, which is the next step in the evolution of the (Socha-Gelbmann) rankings.  We killed the rankings two years ago because they were being misused.  Consumers wanted to know who do I send the RFP to, who do I engage and they would almost mindlessly send to the Socha-Gelbmann Top Ten.  But, now the consumers can specify what they’re looking for, starting with areas of the model, whether it’s Collection, Preservation, Review, etc., and provide other information such as geography and types of ESI and what will be returned on those searches is a list of providers with those services or products.  We have right now about 800 providers in the database and many of those have very basic listings at this point.  As this is currently in beta, we have detailed information that we pre-populated for about 200 providers and are expanding rapidly.  Over the next couple of months, we’re working hard with providers to populate their sites with whatever content is appropriate to describe their products and services in terms of what they do, where they do it, etc., that can feed the search engine.  And, we have been getting very good feedback from both the consumer side and the provider side as being a very valuable service.

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!

eDiscovery Trends: 2011 Predictions — By The Numbers
 

Comedian Nick Bakay”>Nick Bakay always ends his Tale of the Tape skits where he compares everything from Married vs. Single to Divas vs. Hot Dogs with the phrase “It's all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  We’ll have some of our own in the next few days (hey, the longer we wait, the more likely we are to be right!).  However, before stating those predictions, I thought we would take a look at other predictions and see if we can spot some common trends among those, “googling” for 2011 eDiscovery predictions, and organized the predictions into common themes.  I found serious predictions here, here, here, here and here.  Oh, also here and here.

A couple of quick comments: 1) I had NO IDEA how many times that predictions are re-posted by other sites, so it took some work to isolate each unique set of predictions.  I even found two sets of predictions from ZL Technologies, one with twelve predictions and another with seven, so I had to pick one set and I chose the one with seven (sorry, eWEEK!). If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Cloud and SaaS Computing: Six out of seven “prognosticators” indicated that adoption of Software as a Service (SaaS) “cloud” solutions will continue to increase, which will become increasingly relevant in eDiscovery.  No surprise here, given last year’s IDC forecast for SaaS growth and many articles addressing the subject, including a few posts right here on this blog.
  • Collaboration/Integration: Six out of seven “augurs” also had predictions related to various themes associated with collaboration (more collaboration tools, greater legal/IT coordination, etc.) and integration (greater focus by software vendors on data exchange with other systems, etc.).  Two people specifically noted an expectation of greater eDiscovery integration within organization governance, risk management and compliance (GRC) processes.
  • In-House Discovery: Five “pundits” forecasted eDiscovery functions and software will continue to be brought in-house, especially on the “left-side of the EDRM model” (Information Management).
  • Diverse Data Sources: Three “soothsayers” presaged that sources of data will continue to be more diverse, which shouldn’t be a surprise to anyone, given the popularity of gadgets and the rise of social media.
  • Social Media: Speaking of social media, three “prophets” (yes, I’ve been consulting my thesaurus!) expect social media to continue to be a big area to be addressed for eDiscovery.
  • End to End Discovery: Three “psychics” also predicted that there will continue to be more single-source end-to-end eDiscovery offerings in the marketplace.

The “others receiving votes” category (two predicting each of these) included maturing and acceptance of automated review (including predictive coding), early case assessment moving toward the Information Management stage, consolidation within the eDiscovery industry, more focus on proportionality, maturing of global eDiscovery and predictive/disruptive pricing.

Predictive/disruptive pricing (via Kriss Wilson of Superior Document Services and Charles Skamser of eDiscovery Solutions Group respective blogs) is a particularly intriguing prediction to me because data volumes are continuing to grow at an astronomical rate, so greater volumes lead to greater costs.  Creativity will be key in how companies deal with the larger volumes effectively, and pressures will become greater for providers (even, dare I say, review attorneys) to price their services more creatively.

Another interesting prediction (via ZL Technologies) is that “Discovery of Databases and other Structured Data will Increase”, which is something I’ve expected to see for some time.  I hope this is finally the year for that.

Finally, I said that I found serious predictions and analyzed them; however, there are a couple of not-so-serious sets of predictions here and here.  My favorite prediction is from The Posse List, as follows: “LegalTech…renames itself “EDiscoveryTech” after Law.com survey reveals that of the 422 vendors present, 419 do e-discovery, and the other 3 are Hyundai HotWheels, Speedway Racers and Convert-A-Van who thought they were at the Javits Auto Show.”

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Myth of SaaS Insecurity Finally Busted

Eleven years ago, when I first began talking to attorneys about hosting document collections online to manage the review and production process for discovery, the typical response that I got was “I would never consider putting my client’s documents online – it’s just not secure”.  Let’s face it – lawyers are not exactly early adopters of technology… 😉

These days, few folks seem to have that concern any more when it comes to putting sensitive data and documents online.  Many people bank online, buy items from Amazon and other “etailers”, share pictures and other personal information on Facebook, etc.  As for business data, SalesForce.com has become the top customer relationship management (CRM) application and many business users are using Google Docs to share documents with colleagues, as just two examples.

What do all of these applications have in common?  They are Software as a Service (SaaS) applications, delivering data and functionality via an online application.  As noted previously on this blog, a new IDC study forecasts the SaaS market to reach $40.5 billion by 2014, an annual growth rate of 25.3%.  Also by 2014, about 34% of all new business software purchases will be via SaaS applications, according to IDC.

SaaS review applications have also become increasingly popular in eDiscovery with several eDiscovery SaaS applications available that provide benefits including: no software to install, intuitive browser-based interfaces and ability to share the collection with your client, experts, and co-counsel without distributing anything more than a login.

As for security concerns, most litigators have come to accept that these systems are secure.  But, do they realize just how secure they are?

As an example, at Trial Solutions, the servers hosting data for our OnDemand® and FirstPass™ (powered by Venio FPR™) platforms are housed in a Tier 4 data center in Houston (which is where our headquarters is).  The security at this data center is military grade: 24 x 7 x 365 onsite security guards (I feel sorry for the folks who have to work this Saturday!), video surveillance, biometric and card key security required just to get into the building.  Not to mention a building that features concrete bollards, steel lined walls, bulletproof glass, and barbed wire fencing.  And, if you’re even able to get into the building, you then have to find the right server (in the right locked room) and break into the server security.  It’s like the movie Mission Impossible where Tom Cruise has to break into the CIA, except for the laser beams over the air vent (anyone who watches movies knows those can be easily thwarted by putting mirrors over them).  To replicate that level of security infrastructure would be cost prohibitive for even most large companies.

From the outside, SaaS applications secure data with login authentication and Secured Sockets Layer (SSL) encryption.  SSL encryption is like taking a piece of paper with text on it, scrambling the letters on that piece of paper and then tearing it up into many pieces and throwing the scraps into the wind.  To intercept a communication (one request to the server), you have to intercept all of the packets of a communication, then unscramble each packet individually and then reassemble them in the correct order.

Conversely, desktop review application data could be one stolen laptop away from being compromised.  No wonder why nobody talks about security concerns anymore with SaaS applications.

So, what do you think?  How secure is your document collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Holidays from all of us at Trial Solutions and eDiscovery Daily!

eDiscovery Tips: SaaS and eDiscovery – More Top Considerations

Friday, we began talking about the article regarding Software as a Service (SaaS) and eDiscovery entitled Top 7 Legal Things to Know about Cloud, SaaS and eDiscovery on CIO Update.com, written by David Morris and James Shook from EMC.  The article, which relates to storage of ESI within cloud and SaaS providers, can be found here.

The article looks at key eDiscovery issues that must be addressed for organizations using public cloud and SaaS offerings for ESI, and Friday’s post looked at the first three issues.  Here are the remaining four issues from the article (requirements in bold are quoted directly from the article):

4. What if there are technical issues with e-discovery in the cloud?  The article discusses how identifying and collecting large volumes of data can have significant bandwidth, CPU, and storage requirements and that the cloud provider may have to do all of this work for the organization.  It pays to be proactive, determine potential eDiscovery needs for the data up front and, to the extent possible, negotiate eDiscovery requirements into the agreement with the cloud provider.

5. If the cloud/SaaS provider loses or inadvertently deletes our information, aren’t they responsible? As noted above, if the agreement with the cloud provider includes eDiscovery requirements for the cloud provider to meet, then it’s easier to enforce those requirements.  Currently, however, these agreements rarely include these types of requirements.  “Possession, custody or control” over the data points to the cloud provider, but courts usually focus their efforts on the named parties in the case when deciding on spoliation claims.  Sounds like a potential for third party lawsuits.

6. If the cloud/SaaS provider loses or inadvertently deletes our information, what are the potential legal ramifications?  If data was lost because of the cloud provider, the organization will probably want to establish that they’re not at fault. But it may take more than establishing who deleted the data. – the organization may need to demonstrate that it acted diligently in selecting the provider, negotiating terms with established controls and notifying the provider of hold requirements in a timely manner.  Even then, there is no case law guidance as to whether demonstrating such would shift that responsibility and most agreements with cloud providers will limit potential damages for loss of data or data access.

7. How do I protect our corporation from fines and sanction for ESI in the cloud?  The article discusses understanding what ESI is potentially relevant and where it’s located.  This can be accomplished, in part, by creating a data map for the organization that covers data in the cloud as well as data stored within the organization.  Again, covering eDiscovery and other compliance requirements with the provider when negotiating the initial agreement can make a big difference.  As always, be proactive to minimize issues when litigation strikes.

Let’s face it, cloud and SaaS solutions are here to stay and they are becoming increasingly popular for organizations of all sizes to avoid the software and infrastructure costs of internal solutions.  Being proactive and including corporate counsel up front in decisions related to SaaS selections will enable your organization to avoid many potential problems down the line.

So, what do you think?  Does your company have mechanisms in place for discovery of your cloud data?  Please share any comments you might have or if you’d like to know more about a particular topic.