Ediscovery Trends

Recently, a team over at CBS News uncovered a new potential security hole at many corporations – the digital copier.  Essentially, they purchased several copiers used, then managed to “scrape” documents off of each of the copiers hard drives, exposing sensitive documents previously thought to be deleted.  The question then becomes, what needs to happen to a modern printer in the event of a legal hold?

I don’t think that documents that require special software to extract should be produced during discovery.  During the normal course of business, these documents were copied or scanned and should reside in other, more accessible places.  Of course, this all changes if it turns out that a party is acting in bad faith.

I would also not be surprised if, as one result of increased ediscovery productions, companies started looking toward “dumb” technology in order to better serve their needs.  Attorneys still communicate with experts over the phone because electronic correspondence is discoverable in some circumstances.  Similarly, companies might decide that the added features of these new fancy copiers aren’t worth the bother if they’re just creating more headache (and expense) for the legal team.

Quick news on the ediscovery front – AccessData and CT Summation are going to merge.  Summation iBlaze is one of the more popular document review platforms around, loved and despised by many litigation support professionals – it all depends on who you talk to and what coast you’re on.  CT Summation has other tools as well, such as CaseVault and Discovery Cracker.

AccessData has typically been more focused on the data collection side of the EDRM model.  Their core business is focused on computer forensics and cyber security, but this acquisition allows them to expand a bit more into the ediscovery realm.  It will be interesting to see how they integrate their Forensic Toolkit (FTK) and incident response software into CT Summation’s review and processing platforms.

As courts are beginning to better understand the many issues surrounding ediscovery and electronically stored information, parties are more often being required to meet to discuss these issues.  In fact, a court in Michigan decided to dismiss a plaintiff’s case recently due to the plaintiff deleting emails after receiving a notification to preserve emails from the defendants.

Not only is this an ediscovery issue, but it’s also a computer forensics issue.  When an individual or company knows they will be a party in litigation, there is a duty to forensically preserve any documents like email immediately.  When there is delay, especially when dealing with an individual, other things often happen – people get new computers and throw out their hard drives, or a virus could force them to reformat in order to have a working computer.  The creation of a forensically sound image is of paramount importance if you wish to get through litigation without being sanctioned.

Clearwell has a post (though not on their own blog), outlining what they project to be the top five ediscovery trends of 2010.

The first is a focus on early case assessment.  Right now, smaller ediscovery vendors benefit from law firms’ lack of ECA tools.  Once the ESI is collected, firms are going to want to know right away what they have, and whether this data will lead to future litigation.  If a litigation support vendor controls this data and has access to a powerful search tool such as Kazeon or Clearwell, this can be done quickly and accurately.

Another imp ortant trend is the growing role that project managers will take on litigation.  While lawyers may like to think they know every aspect of a case, the reality is that a good project manager should be able to keep track of what stage litigation is in from an EDRM perspective.  Litigation support services and lawyers are going to need to open the channels of communication to effectively manage this vast amount of data and find the needle in the haystack.

We’re not at the point where one ediscovery platform can effectively manage every aspect of litigation.  There is still a need for forensic collection, culling, and document review.  Currently, there is no litigation software that can handle all of this.  However, vendors are able of offer multiple software solutions to fit their clients’ needs.  If the amount of ESI collected is small, a vendor can move it to a document review platform right away.  For larger collections, a vendor can offer a culling tool.  If the data collection itself may become a point of contention, ediscovery vendors will need to employ forensic experts willing to testify before the court.

This last point is especially important when it comes to implementing data from social networking sites into litigation.  Facebook and Twitter data is difficult to locate on most hard drives, and care should be taken when it comes to extracting this data.  Forensic collection becomes more than just an afterthought in the process.

Litigation support vendors will continue to evolve to meet the needs of clients in 2010.  Ediscovery and forensics firms will continue to merge and build symbiotic relationships.

Ajilon and Fios are teaming up to create a new ediscovery services partnership.  They are to be a start to finish solution, though according to the EDRM, it looks like they don’t address digital forensic collection.  That’s the only complaint from me – litigation support costs can be reduced by combining document review services with more traditional litigation support services.

Forensic collection still needs to be addressed in this scenario.    While some litigants don’t have the need for a permanent solution and can address this on a case-by-case basis, in the long term a dedicated document management system will prove to save money.

Project management will be another important piece to the Ajilon/Fios offering.  Overall, this is smart play in this market and I expect to see more mergers of complementary services in the coming months.

In email forensics, it’s important to realize the scope of the data that you are dealing with.  While I agree with some of this blog post on email collection, when important litigation is involved, a computer forensic expert is a must.

The main reason you do not want your internal IT admin exporting emails for you is that often the person who recovered the data will be called upon to testify before the court.  A certified computer forensics professional has the experience and proper methodology to refute claims (such as spoliation, for example) made by opposing counsel.  A reputable ediscovery or digital forensics shop should have certifications and the expertise to help plan the most efficient way to collect, cull, and review your documents.  Proper planning for litigation can ensure that you’re using resources wisely and not throwing good money after bad.

However, if your firm uses Exchange and is simply conducting some sort of internal investigation, then the DIY approach to data collection is probably just fine.  Make sure to know the limits of your IT staff though – data collection can be a long process and they may not have the resources to do the job as quickly as a dedicated forensics firm.

Here’s a short audio interview with Rob Fitzgerald of the Lorenzi Group.  He discusses the growing role of digital forensics in litigation.  E-discovery firms and forensic firms are consolidating services in order to better serve legal markets.  Many corporate clients are becoming more proactive with their use of internal document management software, reflecting their need to quickly and efficiently respond to litigation, investigation, and compliance requests.  This interview is a good quick overview of some current trends in forensics and e-discovery technology.