This information management focus comes from a perfect storm of problems that companies are facing right now.  Regulatory compliance is at the forefront of most technology-related decisions, but other factors play a role in deciding how to get a grip on how information flows within an organization.

One important aspect that any information management system must account for is the ability to create a legal hold.  When an employee or company may the subject of litigation, it is important that documents are properly preserved to avoid evidence spoliation.  Having a single appliance that can defensibly handle this task would be of great benefit to any company.  Most solutions we are seeing deployed now are much more patchwork, as companies also worry about things like DLP (data loss prevention) and the security of proprietary information.

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First, let’s start with market size: it appears that the overall ediscovery market grew in 2009, up 10% from 2008.  This is modest growth in good years, but in these lean times it shows that law firms have found value and are actually saving money by using ediscovery services.  Expect to see beat-the-market growth from the vendors who do the best job of culling document sets down, leading to less attorney document review work.

However, another recent trend may be pushing documents out of the hands of ediscovery vendors.  Targeted collection and preservation has made some of these document culling tools less useful, as attorneys gain experience in requesting specific documents during litigation.  The usefulness of the blanket “all documents relating to XYZ” request is outweighed by the cost of culling those documents down and then reviewing them.  This will be especially true as the data deluge continues, with ediscovery document sources becoming more numerous with no end in sight.

This is good news for many law firms engaged in litigation.  Instead of paying contract attorneys to review large swaths of varied documents, you can have those lawyers (and your experts) focus on a smaller set of documents, reducing cost.

Next post (later this week!) we’ll include some information on how the 2010 Socha-Gelbmann Electronic Discovery Survey relates to information management, and we’ll discuss a few other trends that we expect to continue in 2010 in the ediscovery market.

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Clearwell is taking advantage of the law firms who have slowly been migrating to the iPhone as their preferred mobile platform.  While the once-ubiquitous Blackberry continues to be a major player for many reasons (IT support and familiarity being important, not to mention a keyboard with tactile response), development and visibility for iPhone apps remains a distinct advantage for Apple.

Time will tell if this means that Clearwell is likely to develop for that other important mobile OS, Android.  I think Android has a bright future, but the full computing power of the OS has yet to be harnessed in the corporate world.

This new app is also a great marketing tool for Clearwell – it shows that they are responsive to the market, and makes Clearwell data easy to manipulate, display, and ultimately show off to clients.  CW’s web interface looks nice and everything, but this gives a legitimate reason to show off your new iPad!

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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.

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This is a bit of a new challenge – while most companies think about the challenge of culling large data sets (email archives, for example), a new emphasis will also need to be placed on the collection of small amounts of data from disperate and uncontrollable environments.  Company XYZ may be able to cull and produce responsive documents within their possession, but who is responsible for the collection of relevant information that may be posted to Facebook?  What if that information is set to “private” – is it discoverable, and how do you go about collecting it?

Just some ediscovery food for thought…

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Many companies are what I call “semi-prepared” for ediscovery work – the tools may be in place but they’ve never all been under the same ediscovery umbrella.  For example, informal internal investigations may be launched if an employee is suspected of embezzlement or theft of IP, but that may result only in the termination of the employee and not in any criminal charges (depending on the severity of the crime, of course).  IT workers may know how to capture packets across the network, but may not follow a certain set of steps that make the process transparent and able to hold up in court.

CompTIA is in a very good position to create and manage an eDiscovery certification shortly.  They released a paper called “Ediscovery Trends and Practices” at the end of 2009, which at the least demonstrates that they recognize the eDiscovery market as a growing market worth paying attention to.  I’d be curious as to see what the requirements are if CompTIA is going to offer a certification – there are quite a few separate and important tasks that could all be classified as ediscovery (data collection, document review, computer forensics, etc.), but I would hope it wouldn’t just be a generic “Ediscovery project manager” type of cert.  I’d personally want the cert to be a bit more technical and to demonstrate a thorough understanding of all necessary steps.

Of course, this is all under the assumption that CompTIA is going to offer Ediscovery certification, and they may never even do that – just speculation on my part!

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After all potentially responsive documents are preserved, then any documents that are not relevant to the litigation may be discarded.  This is called culling, and can be done with a number of litigation support software packages.  Most of these document review platforms come with some kind of search functionality, so you can reduce the number of documents quickly by only find docs authored by a certain person, or within a certain date range.

Finally, until the litigation has been resolved, the litigation hold is ongoing, so any documents that are produced that relate to or reference the litigation may be discoverable.  In addition, if any data is found to have been deleted or otherwise altered, sanctions may be imposed on legal counsel for a failure to properly issue a legal hold.

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First of all, any site collection is now able to be targeted by Sharepoint’s Legal Hold functions, not just the Record Center site.

Sharepoint will also now be able to search your site collections for data that could be subject to a legal hold.  Finally, Sharepoint Server 2010 will also be able to export these search results into a separate repository for review and analysis.  No word yet on whether you will be able to export into a document review platform or EDRM XML.

For more info on ediscovery and Sharepoint 2007, check out this link.

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Essentially, during the course of ediscovery in this case, defense counsel decided they were going to produce some privileged ediscovery in a password-protected format.  Plaintiff (not plaintiff’s counsel) then proceeds to crack the password (if you don’t know much about password-cracking, let’s just say that it can be more trivial than one might think), and then informs his attorneys about it, with an email titled, “Password protected files – Unlocked!”

Yeah, that’s going to anger some people, namely opposing counsel, who moved for sanctions.  As it turns out, everyone was at fault.  The plaintiff obviously shouldn’t have been cracking open privileged documents, plaintiff’s counsel had never even read or noticed the email, and defense counsel really shouldn’t have been producing privileged documents anyway.

I suggest you read the whole post – it’s a very good case-based analysis of ediscovery ethics.

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One important thing that happens when parties agree NOT to preserve certain data is that their costs go down.  Instead of worrying about litigation holds on a multitude of complex systems (tape backups, voicemail, email, network traffic, browser history and cache, logs, etc.), the parties agree not to preserve certain things so that the company can continue with day-to-day operations.

I’m not sure this solution is ready to be widely implemented yet, but it’s a good start when it comes to reducing overall legal costs.  Some electronic discovery sources are not going to necessarily find you information pertinent to litigation, or are simply too costly to recreate in a meaningful way (like backup tapes).  This approach is keeping ediscovery sources confined to the realm of documents “kept in the ordinary course of business” and without placing a burden on that business.

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Well, cloud is all going to continue to provide a lot of the benefits. I think that proponents have always spoken up which is a lower TCO, less resources and less management overhead for the companies that utilize the cloud. I think the challenge will always be to ensure that the solutions are of equal and similar capabilities as the on-premise solutions, which I don’t, again, I don’t feel that there’s any reason for there to be any difference. The trend going forward will be this. I think that you see, especially, in this economic climate you have a lot of companies, which are really focusing on their costs.

And because of that, cloud computing makes a lot of sense for them. But once they make that decision, once that sort of let’s say for example, its cost in this case that gives them that impetus to get over the edge and say, okay, we’re going to go cloud. What we’ve seen is once they decide to cloud in any fashion, maybe initially it’s just a storing a little data out there, the application’s still internal but they’re using cloud storage to store the data. It’s actually a very small hump for them to go over and push everything out there.

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The Posse List is reporting that a congressional committee found that Toyota “deliberately withheld relevant electronic records that it was legally required to produce in response to discovery orders in litigation”. This story will surely develop further, but it seems that the electronic evidence was not produced, and it’s doubtful that steps were taken to preserve this ESI.

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The judge also differentiated between negligence and willful misconduct, claiming that only in cases of willful misconduct was the offending party required to prove that their negligence did not harm the opposing party.

This case sets an important precedent for future parties, and possibly lays some groundwork that other judges will be able to follow.  When it comes to ediscovery spoliation and tampering, the courts will not take this issue lightly.

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Incidentally, the ABA does have a nice little Legal Technology area that caters to experts and newcomers to the legal-tech community.

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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.

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Load files, for example, come in many different shapes and sizes.  Summation load files in particular can be problematic, and every law firm handles Summation databases differently.  Be sure to specify to your vendor what fields you want included, how you will load full text, and how you want the images for your documents numbered.  Summation load files have changed over the years, and you can bet the vendor that provided the file to you is probably up on the latest litigation support technology, so be sure to ask them why they did things a certain way.

Concordance load files are relatively simple, with separate files for the images, metadata, and fulltext.  This makes problems relatively easy to troubleshoot.

The point is not that one document review platform is better than another, but rather that your ediscovery vendor is probably very familiar with the software that they provide load files for.  If you’re having trouble, be sure to ask them for help – most vendors will do almost anything to retain a client!

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First, I definitely agree that more firms should be taking advantage of early-case assessment tools.  Firms that do not take advantage of these tools are going to waste valuable time reviewing documents for a case that may or may not be worthwhile.  ECA tools can help a firm decide what a case’s scope will be, so they can be better prepared to handle it.

Again, we touched on this point earlier, but project management roles are going to become much more important in the litigation support community.  These roles could be a hybrid of litigation support and legal, who can keep track of all the electronic data requests surrounding a case and know which data is relevant to the attorneys.  I think the term “litigation analyst” might be a better term, as when I think of a “project manager” I usually wonder how they can “manage” to stay on the payroll!  zing!

I disagree with point six though – single platform solutions are still further down the road, as much as I’d like them to be an ediscovery trend.  The cold hard reality is that ediscovery professionals still use versatile tools like LAW and IPRO.  While there might be newer, shinier ediscovery software out there, the switching costs are too high for most vendors to consider, especially during a rough economic patch.

Linear review is dead – ha!  See above paragraph.  Plenty of firms that need document review are still locked into Summation or Concordance.  Those that are able shift towards more efficient document review methodologies will probably prosper like the first-movers they are, but unfortunately the old ways are still good enough to just barely get by.

Will EDRM be phased out?  If you think that lawyers are going to lay down their swords and start collaborating because it’s efficient, I’ve got a bridge I’d like to sell you.  How does collaboration increase billable hours again?  Sorry, but ediscovery rules are going to be established the hard way – lengthy brief after lengthy brief – until proper precedents are created.

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