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eDJ Contributor: Greg Buckles
Independent corporate legal technology consultant focused on reasonable, defensible process solutions.
Date Post Title Post Summary
2018-01-08 Translating eDiscovery to Teens = iPhone Forensics A teacher friend asked me to give a presentation on forensic science to her high school class. I agreed thinking I had so many eDiscovery 101 decks in my files that it would be easy to pull something fun together in an hour. My presentations for sales teams, venture capital investors, new lit support techs and such really did not seem to be that relevant to teens. It was easy enough to throw together slides defining forensic science, funny pics from my CSI days and the ‘CSI effect’ with the gratuitous Gil Grisham headshot. But even the basics of criminal/civil/investigation workflows seemed out of touch to their world. Then it hit me – iPhones! They all had iPhones and things on those phones that they did not want anyone to access.
2018-01-02 Corporate Mobile Preservation Kit – Follow Up I received some good commentary and recommendations from your peers that I wanted to share with my own perspective. Credit for the good points goes to peers, any mistakes are obviously mine. Keep the feedback coming. • Examiner downtime – Several peers commented about the exorbitant cost associated with examiner downtime during scheduled collection days. It doesn’t help to have the leverage of 5 or 10 acquisition stations if custodians are late, or worse fail to show up to deliver devices. Apparently it was a chronic problem for laptop image collections that unexpectedly extended into MD images when the custodian had to sign off.
2017-12-14 Corporate Mobile Device Preservation Kit For several years I have monitored the slow recognition and rise of mobile device content in civil discovery. I have run annual surveys, market reports and even put on mobile eDiscovery boot camps. Although it has taken longer than I expected back, I am now encountering substantial vendor charges to acquire, process and review text messages, chat conversations and other ‘business communications’ from Android and iOS phones during my annual ‘eDiscovery Cost/ROI Savings’ reports for long term clients. They are often surprised at how clever providers low ball the collection fees down to $250-400/device while burying exorbitant forensic tech time charges in the processing fees. My clients thought they understood the cost to agreeing to add phones to the accessible ESI source list, only to get sticker shock when I add up all the subsequent forensic time and data processing charges for an average $2,500+ per device total cost just to get it into Relativity. I encourage clients and peers to think through and demand estimates for the total cost associated with what I call 3rd generation ESI data sources before acquiescing to the typical overly broad discovery request. If you embrace the classic, “preserve broadly and review narrowly” model, you may consider investing in basic software and training to enable your corporate legal support or data security teams image unlocked mobile devices when the content is potentially relevant. So how much will that cost?
2017-11-20 eDJ Update: O365 Compliance Center Holds-Productions Several months back I wrote a very careful piece detailing some potential errors or unexplained behavior seen with clients using Office 365’s Compliance Center (E3 license level) to apply holds and export search results. I was careful not to ring the ‘O365 is broken’ bell without full explanation and giving Microsoft the chance to debug the behavior. I have been a product manager and had to put out reputation fires sparked by well-meaning customers who fundamentally misunderstood the system or with unstable data/infrastructure. Luckily for me, we had redundant data repositories and although it would have been nice to shift to O365 for some things, it was not required. That meant we wanted to get to the bottom of the behavior, but it was not high client priority. The first line tech support did their best, but really could not understand why we cared about result sets that did not match up exactly. A friend in Redmond caught wind of things and got the tickets escalated. I would love to say that I was 100% sure that we understood the source of all the search behavior, but I do have a much better appreciation for the recent changes to the Office 365 search architecture and data sources. I covered some of the information dump in my recent RelativityFest 2017 blog and I wanted to circle back on the actual search/export issues.
2017-11-13 Empower Client Decisions
2017-11-07 eDJ Rant - How Not to Sell/Buy eDiscovery I took a long break from managing RFP’s for clients while eDJ tilted at the market analyst windmills. Those long five years of research prepared me to define client requirements, budget ROI support and to manage the subsequent Request for Proposal (RFP) process. Unfortunately, they also let me forget how few sales organizations/reps are mature enough to view an independent consultant as anything more than an impediment to converting the prospect to a closed deal. Too many modern reps are sales speed daters focused on creating an artificial relationship with the ‘decision makers’ that they can leverage into an emotion based sale. That perspective transforms my role from facilitator to duenna. They are so busy trying to bypass the imaginary gatekeeper that they miss the opportunity to educate and cultivate an advocate who deeply understands the client pain points, politics and goals. Below are some carefully anonymized sales tactics to be avoided by reps AND clients. Love to hear some of your pet peeves.
2017-11-06 eDJ Does RelativityFest 2017 How to describe talking shop with CEO Andrew Sieja, Shawn Gaines and Jacque Flarherty after the team has spent days hosting two thousand peers and customers? Frenetic comes to mind. Our briefing topic hopped faster than a sexaholic swiping right on Tinder (see Andrew’s hysterical keynote malapropism below). I always enjoy these meetings and since I already caught you up after my ILTA briefing, we focused on what made Relativity Fest different from LTNY and the traditional trade shows.
2017-10-26 Decommissioning Servers Under Hold – Georgia Election Spoliation Several peers sent me links to the unfolding spoliation scandal regarding the Georgia election server that was wiped shortly after a suit was filed. There is not enough information yet to ascertain the context of the wipe, but the FBI took an image in March as part of their own election tampering investigation which hopefully preserved the critical evidence. As many have observed, “It’s not the crime, it’s the cover up.” Former BP engineer Kurt Mix discovered that the hard way with a 20 year sentence after destroying 17 text messages regarding the 2010 Deepwater Horizon spill response. Maybe the technician’s at the Center for Elections Systems at Kennesaw State University acted in good faith and were just decommissioning the server and back-ups. Maybe. Many of my clients have legacy hardware and applications that have never been properly decommissioned because they are under active legal hold(s). IT execs are racing to shut down their data and CoLo centers in their flight to the Cloud. So what do you do with a legacy server that was put under legal hold for perpetual serial litigation or criminal investigations where the authorities refuse to issue a formal release for decades?
2017-10-19 RelativityFest 2017 – See You In Chicago Just a fast reminder that I will be at RelativityFest Monday and Tuesday. This year I have decided to actually hit sessions and am only scheduling a formal briefing with the Relativity team. That gives me more time to socialize and talk shop with peers old and new. Email me at if you want to try to cross paths in the chaos. I always love to hear new perspectives and make new friends. Please take a second to do my short Relativity Consumption Poll. I am interested in getting a better idea of how real consumers are buying and using the Relativity platform. Sorry that life, storms and other crazy adventures have slowed my usual writing pace, but I am back at the keyboard and want to know how or if you use the market dominant technology. Next poll with focus on O365.
2017-10-16 Microsoft O365 Faces Hard Questions at EDI Back in July I cautiously reported some potential issues encountered while running normal acceptance/validation testing on client’s Security and Compliance Center. I am sad to report that despite opening several MS support tickets, we are no closer to understanding why large PST exports will unexpectedly crash without reporting an error or why items on hold seem to be disappearing from search results. In the intervening months, I have been deluged with similar stories from Microsoft partner products, fellow forensic consultants and sharp corporate litigation support techs who follow my ‘trust but verify’ maxim. I did not make the EDI Summit last week, but I did get some interesting reports from clients and peers about the O365 sessions.
2017-09-18 Viral Photos – A Personal Reminder of How ESI Spreads Excuse me for hijacking my professional musings to share some personal moments that went viral. It is at least a good reminder of how a picture, email, text or other ESI can propagate beyond our illusions of privacy and controls. All it takes is a camera phone or a well-placed Reuter’s photographer to be surprised by your own pictures in your feeds. Rather than retell the story of our tiny efforts in the larger Harvey response, here is the local write up. And here are some of places our pictures showed up:
2017-09-18 Don’t Let Self-Preservation Inhibit Growth I am proud of how Texas and Louisiana civilians jumped into the floodwaters to help neighbors, strangers and first responders. This contrasted sharply to how institutionalized disaster relief seems to take longer and longer to deliver effective support where and when it is desperately needed. That is not a criticism of those who have so freely shared their possessions, time and money through charities and other NGOs. Instead, it is a broader professional observation about the potential loss of focus and effectiveness that accompanies the transition of a group effort into an organizational entity. To quote Samuel Butler, “Self-preservation is the first law of nature.” Over time, organizations tend to become more concerned with justifying their growth, budget, authority or other self-interests over the actual goals they were created to serve. So how does this apply to our world of eDiscovery?
2017-09-04 eDiscovery During a Disaster I am one of the lucky Houstonians whose home survived Harvey relativity intact. We were fortunate to be able to shelter friends, help rescue those stranded and contribute to the recovery effort even as the run-off water put other areas under water. It has been hard to get my head back into work, but I wanted to call attention to my friend Craig Ball’s blog on post flooding data recovery and share a couple thoughts on disaster planning for eDiscovery. We make the “in case you get hit by a bus” joke about that one paralegal or lit support tech who knows where everything eDiscovery lives. But what happens when a bus named Harvey, Katrina or Sandy takes out the team and all regional support services? When a natural disaster costs upwards of $190 billion, you can bet that there will be reasonable disagreements over decisions made before, during and after that disaster. And our society generally resolves such disputes in the courts. A good example of reasonably anticipated litigation is the flooding around the San Jacinto river that some think resulted from the decision not to pre-release water from the upstream Lake Conroe dam. But what happens when your legal staff are either refugees or volunteers helping clean up their community?
2017-08-21 ILTA 2017 eDJ Outtakes ILTACON 2017 has wrapped up and I managed a lightning pass of briefings, meetings and socializing in Vegas. Overall, I am impressed at how ILTA has grown up and may even have stolen the crown from LNTY for best consumer legal technology event. I broke down the sponsorship number comparison in a recent blog. It will come as no surprise that ILTA’s 5 day event in a Vegas casino complex feels a lot less crowded than the 3 days of LTNY in a Manhattan hotel. Neither event really publishes attendance numbers (LTNY site claims 10k+). ILTA seems to attract the consumer/practitioner while LTNY has evolved into more of a provider/sales event. The ILTA exhibit hall had steady foot traffic and actual buyers on my forays. As one sponsor noted, tech partners and support services dominated the floor more than giant Relativity channel partners trying to snap up the dwindling supply of big cases without a dedicated review team. In visual terms, blue dominated the exhibit floor instead of kCura orange. Several attendees remarked that the show was well organized with lots of opportunities to talk with other practioners instead of just being talked at by provider panels (yep, those same panels I was moderating until recently). Most of my meetings were client RFP driven, but here are some non-confidential briefing/meeting outtakes and photos:
2017-08-14 Trust But Verify, Especially with Cloud Sources & Tools Whether we are talking about custodial preservation, journal archiving or any collection/export technology, my moto has always been, ‘trust but verify’. We all learn from our earliest mistakes. Mine was trusting some Microsoft consultant’s that helped me build an email search tool to respond to the first Enron related subpoenas. That drove home the lesson that every environment, data stream and software version need validation testing and ongoing QC checks. Believe me, I hate finding bugs or non-compliance at my clients. I know that I will end up having to write the plain language explanation of any potential data loss or incomplete productions. Enterprise IT departments generally have a lab environment and perform documented acceptance/compatibility tests prior to moving a new application/version to the production environment. Too many legal and compliance professionals have relied on their providers without performing similar validation tests with known data sets and consistently checking different phases of processing, review rules, redaction settings and productions. Now that enterprises are migrating live data under legal hold to Office 365 or other cloud platforms, testing is critical to demonstrate your reasonable faith in these ‘inaccessible’ systems. By that misappropriated term of art, I mean that you no longer have direct access to the storage and databases. So what are some of my basic validation test?
2017-08-07 Guidance & inData Acquired The consolidation of the eDiscovery niche market continues and venture capital money seems to be gushing. If you back track some of recent acquisitions (Discovia by Lighthouse eDiscovery and inData by Ipro), you will notice that they both took VC money shortly before the announcements. OpenText has a long history of acquiring software with a strongly established customer base. In this case OpenText put down $240M for Guidance. That is a roughly 2X multiple of Guidance’s $115M expected revenue (operating at a net loss). That is well below the target 4-6X revenue multiple that most technology firms seek, but Guidance Software is not your typical startup.
2017-07-31 No, Microsoft Is Not Limiting Office 365 Legal Searches/Holds Seconds into a provider briefing, I got hit with, “Did you see that Microsoft is ending legal holds?” based on a blog by Tony Redmond in Petri IT Knowledgebase. I work hard to keep up with my feeds and search engines, but this one slipped by me. A bit of digging made it clear that Microsoft is just deprovisioning the legal search and hold capability in the Exchange Administrative Center (EAC) and the SharePoint Admin Center to push Office 365 tenants to the new Security and Compliance Center portal. Your existing holds and incremental searches will continue to be effective, but you will not be able to create new searches in these portals. The disappointing news is that as of this date Microsoft does not seem to be providing a migration mechanism for early adopter corporate legal departments with extensive holds or active compliance searches. Migrations are always tricky and I am betting that I will have to QC and sign off on some in the next year.
2017-07-19 Has Iltacon Eclipsed LegalTech? LegalTech New York came first. It dominated the software/marketing development cycle. The vast majority of major version releases were timed for maximum impact at the show. My clients scheduled their budgets and RFP projects around LegalTech. My eDJ Matrix was created to categorize and track providers at LTNY to support my insane briefing and demo schedule in those early years. But has ILTACON become more relevant to consumers and providers? I have been tracking LTNY exhibitor and sponsor numbers since 2008. Although I have been a regular speaker at ILTA and ARMA, I neglected to track their exhibitor/sponsor numbers as they gained momentum. My return to solo consulting gigs has pretty much taken me off the speaker circuit. My first briefing requests for ILTACON 2017 rolled in and peaked my curiosity as to how sponsorship compared to LTNY. Wow.
2017-07-17 Who Pays for eDiscovery Tech Training? Life as a consultant means following client trends and hot topics. This year has pushed me to get more hands on with client provider and invoice management systems as some of my favorite clients work their way down the eDiscovery lifecycle. Provider billing practices and the lack of supervision by retained counsel never cease to astound me. Clients negotiate hard for competitive processing and hosting rates only to discover that their PM and miscellaneous tech charges had gone through the roof. They saved money on the data, but lost the budget as both provider and firm burned hours planning, managing and training the review. I am the last person to discount the value of a sharp PM and lead paralegal guiding contract reviewers through complex relevance and issue coding. But is it ethical for providers and counsel to bill for their personnel to learn the technology before using it? Too many times I have dug into large bills only to determine that personnel had been put in the position to ‘learn on the job’. Even before the bills, I get red flags when key players start to push back on proposed tech for more ‘traditional’ systems. Our industry makes it hard for professionals to admit that they don’t know every new system. No one wants to tell the attorneys ‘no’ or I don’t know. If you are an expert in one collection or review platform, you can probably figure out how to run the competitive packages. While this is true, is it ethical to bill your client for the time you wasted digging through manuals and watching downloaded training videos?
2017-07-10 DTI v. LDiscovery – Round One to LDiscovery For industry insiders who have been following the fight over four top Epiq sales reps recruited by LDiscovery, the various matters were consolidated to the southern US district court of New York, which issued a motion denying DTI’s motion for injunctive relief. To ‘mansplain’ from my own non-attorney perspective, Judge Rakoff’s 30 page opinion seems to drop the hammer on the legal basis of many of DTI’s claims, while confirming the basic sequence of events. All of us in eDiscovery should know that things are rarely black and white when large amounts of money are at stake. Here are a couple of my favorite take aways (remember, these are perspective from a non-attorney):
2017-07-07 Got Office 365 Compliance Search/Export Issues? Sorry for slacking off on blogs while I have been wrestling with tricky matters and systems. I am stealing a moment to carefully report some potential search and export issues with the new Office 365 Security & Compliance Center. Normally I would not write about any potential eDiscovery system issue until I fully understood the behavior and gave the provider time to debug the problem. Because the vast majority of my clients and readers are already experimenting with the new Compliance Center for holds, searches and collections, I felt compelled to at least raise a yellow warning flag of caution. Reasonable quality control steps in your eDiscovery workflow may catch the export issues we encountered, but they would not catch the inconsistent search results in our scenario without validation level confirmation tests. Before I detail the anonymized scenarios, it is important to reaffirm that circumstances have prevented us from more than minimal testing or even opening a Microsoft support ticket yet, though that is in progress. I was not able to reproduce this behavior in my own test O365 environment. All of this means that the issues may be related to corrupt data or other unique client variable – i.e. not relevant to your environment. Scenarios and behavior:
2017-05-30 Is LexisNexis Phasing Out Concordance Desktop? My recent research on the impact of merger and acquisitions in the eDiscovery market hit a nerve with many of you. One of the more interesting rumors that surfaced was that LexisNexis was “not taking new Concordance contracts” and not offering any alternatives. Two years ago I blogged on how successful technology like LAW seemed to languish after being acquired by global technology companies such as LexisNexis. I followed up that rumor by putting in an online purchase request. In past RFPs, I have gotten a call from a sales rep within a day at the most. This time no response. I asked around at the Ingenious Retreat last week and found at least one peer who had heard the same rumor from a friend working at LexisNexis. None of this is credible or confirmed news, but it reinforces the need to monitor your technology and service providers. Active tech companies should be releasing new versions or features on a regular basis to stay competitive. No matter how many copies of the old Summation iBlaze are still running in firms, it is no longer a supported product. Keeping client data or work content on it is like an airline running critical flight operations on a Windows 98 server vulnerable to WannaCry. I have no doubt that the LexisNexis team have some kinds of plan for Concordance desktop customers. The whole company seems to be phasing out software in favor of cloud services, so I am recommending that my clients keep that in mind when deciding if they are going to renew Concordance support or look at migration costs.
2017-05-18 Lighthouse Acquires Discovia – Merging Corporate & Firm Customer Bases I have always thought of Lighthouse eDiscovery as a stealth player in the eDiscovery market. In fact, I believe this is their first public merger/acquisition since Spire’s $30 million investment back in 2015. We never really covered them as market analysts in that 2008-2015 time period. Maybe their focus on developing corporate dedicated service relationship over chasing the big cases kept them under the radar. Now that they have won a couple of recent RFP’s for my own corporate clients, I have a much better appreciation for their capabilities and GTO strategy. Discovia seems to have a more traditional focus on matters and law firms. They are both Relativity shops, though Discovia seems to have partnered with some kCura alternatives such as IPRO and Brainspace. So how could this impact their existing customers?
2017-05-17 DTI-LDiscovery Suit Hits the News – Finally In my last opinion piece, I wondered if the eDiscovery news/marketing outlets would ever cover the fight between our largest global service borgs, DTI/Epiq and Kroll/Ldiscovery. I was happy to see the relatively unfiltered Above the Law article by Kelly Twigger yesterday. Ms. Twigger did not whitewash or bury any of the rather lurid accusations. Indeed, she highlighted the irony of top eDiscovery professionals using DTI issued devices to allegedly negotiate their quartet’s $24 million bounty for taking DTI trade secrets and customers to LDiscovery. Bravo. I wonder if this will cost them any DTI or KrolLDiscovery marketing dollars?
2017-05-03 Why Is Your Media Not Reporting the DTI-LDiscovery Suit? My thanks for the comments and reposts of yesterday’s blog covering the ongoing lawsuit between two of our industries largest global service providers. Read my blog (or better yet, go get the complaint from PACER) to get the allegations and the potential impact to provider non-compete clauses, security practices and even customers who may get caught up in the fight. A reader asked why they had not seen the case reported in any of their news feeds or media subscriptions. I would have missed this case if a peer had not sent me the cite. All of this begs the question, “Why are the media companies with names that include ‘News’ not covering this multi-million dollar dispute?”
2017-05-02 Fighting Over Customers: DTI vs. LDiscovery Lawsuit My thanks to a peer for shooting me this scoop. I dusted off my PACER password and found the attached complaint and final order transferring this fascinating story from Virginia to NY. Forgive my syntax, but the cite is Document Technologies, Inc. et al. v. LDiscovery LLC d/b/a KrolLDiscovery, Civil Action No. 1:17-cv-405-AJT/IDD E. D. Va. Complaints are only one side of any story, but DTI’s side of this story claims that LDiscovery solicited four top Epiq reps to download proprietary data and entice former customers to LDiscovery after their one year non-compete expired. All the M&A activity in the eDiscovery market (check my ITLA webinar) results in lots of personnel turnover and unfortunately gives rise to the temptation to take advantage of that uncertainty to poach top employees and their long term accounts. I am sure that I will do a more in depth dive into this case as it gathers steam, but I wanted to get you some of the fun claims from the DTI complaint:
2017-05-02 Will Legal Hold Own the eDiscovery Platform Market? Adapting a legal hold platform for a corporate client got me thinking about how Barry Murphy and the eDJ analyst team struggled with the definition of an ‘eDiscovery Platform’ for our eDJ Matrix. Eventually we made a Solomonian judgment and created two platform categories covering key upstream (Corporate) and downstream (Law Firm) functions. Arguably, the consolidation of eDiscovery point products from sequential silos to integrated platforms started when Summation iBlaze added processing and early timeline/matter management features. As much as we wanted those multidirectional arrows on the EDRM diagram to actually reflect an integrated lifecycle and technology, eDiscovery still is a reactive, single use fire drill for far too large a portion of the market. But this is slowly changing. Microsoft and enterprise archives now support real preservation in place with accurate (though limited) retrieval search. Since the 2008 recession, smart serial corporate litigants have fought to take control of their eDiscovery spend and manage their own matters, holds, collections and everything else up to the actual review. The long term eDiscovery nirvana is preservation through production in place from a single interface. We are not there yet. But we know that Microsoft is head there and will deliver basic functionality at a relatively low subscription rate. So why do I think that Legal Hold Notification may be the key to eventually owning the eDiscovery lifecycle?
2017-04-19 Craig Ball: Lack of Mobile Device Preservation = Malpractice I love it when other eDiscovery bloggers step up to point out industry ostriches. Yep, folks burying their heads in the sand rather than just tackle a tough problem. I read, “A New Paradigm in Mobile Device Preservation” by Craig Ball with glee. I am not an attorney and carefully stay away from anything that could be legal advice. It takes an attorney with balls like Ball to publicly opine that NOT instructing your clients to preserve mobile device content is malpractice. As you read his argument, remember that Craig Ball has been special master or testifying expert (mostly plaintiff) in some very complicated eDiscovery matters. As many of my clients will point out, most of their legal holds fall into well known categories without any issues that they think would involve text messages, browser histories or other unique mobile device content. The conversation goes something like this:
2017-04-17 ILTA Webinar In The Can – Managing Providers In a Shrinking eDiscovery Market As many of you know, I have been off the speaker circuit for a while. I expected to be a bit rusty and asked my good friend Duane Lites (Dir. Lit Support for Jackson Walker LLP) to co-host and help prevent the Charlie Brown teacher voice syndrome. I was pleasantly surprised at the registration, attendance and retention numbers (always hard to keep busy peers on for a full hour). Best of all, I had fun doing the research interviews and the webinar. Great questions from the audience and I felt like we managed to deliver practical tips for mitigating the impact of a provider being bought. The full webinar recording is now on the ILTA website here: I posted the deck and raw survey results on the eDJ Group site: ILTA is looking for some members to interview for a follow up article. So if your corporate policies allow you to be publicly interviewed, shoot me a note and I will connect you with the right resource. My next public event should be at the May retreat organized by Ing3nious. I will post topics and other information when available.
2017-03-30 DTI Invests in Valora Autoclassification It seems that I was not the only one interested in how Valora’s PowerHouse could address the sprawling corporate digital landfills. DTI has made a minority investment in Valora to provide the functionality to their Information Governance clients. In the M&A world, a minority investment from what is essentially a giant channel partner is ‘neither fish nor fowl’to use a 17th Century idiom for something that is not easily categorized. We understand acquisitions, but Valora remains an independent organization from DTI and maintains its woman-owned status. The real question is how this will affect the nascent partner channel that Valora had just started to cultivate. Will DTI competitors be willing to use PowerHouse when they imagine that DTI can undercut them on the license fees? Will Valora essentially become a captive technology that is resold exclusively as a DTI service? This is essentially what happened to Patterns when FTI acquired Attenex. I don’t think that DTI’s investment comes at the price of Valora’s independent status, but I do think that the Valora team will have to work a bit harder to reassure potential channel partners or non-DTI customers of that fact. This investment confirms my new webinar slide (below) that shows DTI having the largest number of acquisitions/investments in the eDiscovery market. Early M&A Impact poll and interview results are starting to paint a picture of the concerns facing consumers when their provider is acquired or takes a large investment that changes their Go To Market strategy. So take my poll to see the results and join the ILTA webinar by Duane Lites and myself on April 12th to hear our take on how the eDiscovery market is consolidating and how you can mitigate the risks.
2017-03-22 What If My Hosted Case Is Held For Ransom? While conducting interviews for my upcoming ILTA webinar on coping with eDiscovery provider acquisitions, a sharp litigation support manager posed a hypothetical scenario based on the ransom hack of Hollywood Presbyterian Medical Center. We were discussing contingency plans, liability and concern over loss of data when a provider went out of business or was acquired. Very few of my initial interview respondents were seriously concerned with data loss for a normal M&A event. But at least one raised the concern about all that email data being uploaded into Relativity. How many attachment zips and links could hold the same kind of ransomware that encrypted Hollywood Presbyterian? Most of the hosting/SaaS contracts that I have recently reviewed for RFP engagements have clauses that make the client responsible for the content of all uploads and specifically call out malicious code. Does that take the provider off the hook? Would the bench grant a production date extension or relief if 2 months of review work product was made unavailable due to criminal hacking? Who is liable to remediate any lost work or data? Who should pay the ransom if it is low enough?
2017-03-15 Got a Favorite OCR/Paper Solution? Tell Me About It It has been a long time since I last compared OCR platforms like ABBYY Solutions, Adobe and other proprietary/OEM solutions. As much as I would love to say that paper is dead, boxes of old, weathered paper seem to pop up in many regulatory requests or matters. For many years, we automatically discounted OCR quality for older paper collections. We sent all scanned paper straight for manual objective coding prior to actual attorney review. That adds up fast and the $/doc are hard to justify when only producing a small percentage of that paper. So where does paper belong in this modern world of predictive coding/TAR? If we could trust the OCR engines to report handwriting, recognition levels and other exceptions, then we might be able to at least use modern text analytics and search on a portion of paper docs. The best solution will probably be a hybrid workflow that uses technology to sort and group prior to some kind of manual pass over portions of the collection. Have you or your provider built such a solution? Then I want to hear about it.
2017-03-01 eDJ Brief: Valora Tech It always fascinates me to see service companies dare to transform themselves into technology sales. So many of the earliest eDiscovery companies started in firms or scan shops who hired developers to meet client’s requirements when there was no acceptable Off-The-Shelf (OTS) software available. I was one of those corporate clients writing functional product requirement documents for my providers when regulators made the first demands for native email productions. Doing a briefing with Sandra Serkes about the evolution of Valora Tech was a trip down memory lane. Valora was founded as a typical service provider with an emphasis on records management. They developed custom automated document data mining, categorization and analytics software to meet client demands. The trick for any small custom development shop is to rise above the individual client requirements to create a solution platform that meets the pain points of the broader market. In Valora’s case, they went from automatic BIB coding to create their PowerHouse data mining platform to process and categorize live enterprise data. This is a lofty goal and I am the last person to hype something that I have not seen function in a client’s environment. Too many technology giants have overpromised and underdelivered on enterprise automated categorization over the last decade. So take my briefing notes with my usual ‘trust but verify’ advice.
2017-03-01 Your Provider Just Got Bought, Now What? With eDiscovery providers large and small being gobbled up in the consolidation rush, the odds are good that one of your preferred providers will be rollup up into KrolLDiscovery, DTI or Consilio at some point. This trend has VC’s and investment banks trying to figure out how to minimize the multiples paid while maximizing the ‘synergy’ between companies. So what does that mean when your favorite sales rep is lost to the inevitable post acquisition RIF and the header has changed on your latest invoice? The reality is that no one can predict the fallout from a merger or acquisition (M&A) in mid review or post production defense of process. I have guided clients through migrations, renegotiated terms and performed ‘Humpty Dumpty’ exercises to reconstruct years of eDiscovery history after the primary players have moved on to greener pastures. Most of the time, it has been business as usual from the client perspective while provider employees scramble to figure out new protocols and technology from the parent company. All of this M&A activity makes a good research topic and hopefully a better webinar for ILTA on April 12th at 11am CST (link to be posted asap). So take my 1 minute survey and shoot me an email if you have provider M&A war stories to share. As always, if you want to see a good list of recent M&A activity, check out Rob Robinson’s Complex Discovery page.
2017-02-22 LTNY 2017 Photo Commentary This year I started snapping pics from the exhibit floor in reaction to the overwhelming use of kCura orange in booths (yes, I know that DiscoverReady had it first). Once started, it is hard to stop. So here are some of my show pictures with commentary. Orange is the new Black! kCura’s vivid shade dominated the exhibit floor booths except where contrasted with blue. I guess that the marketing palette is down to two shades now, ENERGY ORANGE and TRUSTED BLUE. [pics in full post]
2017-02-13 And Then There Was One – eDJ’s Mikki Tomlinson Takes Role With Exterro For those of you who have followed eDJ Group over the last 9 years, you will understand how bitter sweet this announcement is. My last business partner and analyst-consultant has accepted a role with Exterro. I know that Mikki’s friends and fans will join me in wishing her the best of luck at Exterro, a better fit for her expertise in matter management and legal holds. Being an independent consultant in the eDiscovery market demands constant research and outreach. I have watched too many of my peers hang out their shingle as solo practitioners, only to fold shop when cases unexpectedly settle, home builds go south or corporate client’s abandon projects. I and my clients will miss Mikki even as we wish her the best in her new role.
2017-02-13 Traveling with Client ESI? TSA Ramps Up Device Seizures Keeping this non-political, the fight over Trump’s travel ban has kicked over a privacy rock, customs demanding social media credentials for inbound travelers. If you work in eDiscovery, you probably have confidential client information on your phone and laptop. You have an obligation to protect that ESI. Time to update or create an overseas travel policy to identify and protect critical or sensitive communications, especially if you are traveling to or from Muslim countries. This Wired article has some basic guidelines or approaches, but bottom line is to move key communications to the cloud prior to border crossings. I still think that the risk of exposure for any business traveler who does not fit CBP’s racial/religious profile is minimal. But you can only assess risk and potential consequences if you are aware of Custom’s rights to seize/access your devices and educate your employees. Remember that most employees take their devices on vacation.
2017-02-09 Check Out – Thoughts About LTNY 2017 My friend Doug Austin at CloudNine solicited quotes from industry pundits (yours truly included) that generated some fun perspectives on the show. So do a fast read here.
2017-02-08 Microsoft Freezes New Searches on eDiscovery Center If you were an early adopter of the on-premise or O365 eDiscovery Center SharePoint site, it is time to migrate to the newer Security and Compliance Center. This article gives the history of in-place legal hold searches and Microsoft’s reasoning for pushing customers to the new platform. Given how many of my clients are still struggling with upgrades to Exchange 2013 (much less 2016), Microsoft has to play the tough parent to reduce global support overhead. For eDiscovery Center users, you need a plan to age off inactive matters/holds, migrate active matters in motion and start all new matters in the Compliance Center. Time to put in the late hours or get a manage service partner to do the grunt work.
2017-02-07 LTNY 2017 Wrap Up Notes Note to self. Politely decline future destination wedding invitations on either side of Legal Tech. That should explain the delay in getting out my remaining briefing/meeting notes. I usually clear the week after LTNY to decompress, digest all the information and follow up on the stack of biz cards from folks who I ran into at the show. This year I am juggling three hot engagements, while fighting for writing time. The briefings and social events on days Two and Three gave me a lot to think about, more than I want to publish without some retrospection. Below are my ‘filtered’ briefing notes for an early taste.
2017-01-31 LTNY 2017 Day 1 Notes I decided to just get you my raw notes and impressions from the exhibit hall floor, formal briefings and shop talk. First Impressions: • Orange continues to be the new black. Seems that everyone wants to imitate kCura • Automation is everywhere. Frequent flyer marketing terms include Simple, Efficient, Automated, Integrated. • What’s with all the empty booths? Kept seeing booths without reps. • Good size crowd of attendees, but serious reduction in the number of booths. The entire 3rd floor is empty. • Briefing sessions alternated between the Sheraton and the London. Problem is that several elevators were out at the Sheraton… • How do I know it is Legal Tech time? It’s snowing! • Don’t do videos or even demos beyond screen shots at conference. Save them for post conference online meetings.
2017-01-30 LTNY 2017 Kicks Off Back in the Big Apple for my umpteenth Legal Tech. I am eager to see what is hot and new with all the product releases for this year. Legal Tech NY is the traditional release date for new products, major versions and Go To Market (GTM) campaigns. This year the question for technology providers will be how competitors can differentiate themselves from the kCura juggernaut. I will be looking for service providers with Alternative Fee Arrangements (AFA) that depart from the $/GB addiction that has dominated our eDiscovery budgets. What else am I looking for? I want to see if anyone has come up with new OCR tricks for the old paper collections from my energy and mining clients. It has been almost a year since kCura acquired Content Analyst, so I expect announcements from Relativity competitors like Ipro shedding CAAT in favor of a clustering engine like Hot Neuron or Brainspace. The eDiscovery market is rapidly evolving and LTNY is one of the best places to spot the trends and meet with peers. Although my briefing slots have been booked up for several weeks, I can always find time to do a good karma introduction. So email me if you are at the show and I hope that our paths cross. I might have to run for my next briefing, but I always block out time to walk the show floor and talk with folks. I will try to publish raw briefing notes and impressions. Some of my briefings:
2017-01-23 How Do You Code for Doc Review? Before I can assess the potential improvement or Return On Investement (ROI) for process or procedure changes, we need the current average cost of discovery broken out by stages, providers and data sources. Someday a client will know what they are spending and getting before they ask for help. It has not happened yet. So we identify a couple recent matters as good exemplars covering the primary matter types and I get to match 6-12 months of invoices against tracking spreadsheets and Relativity reports to determine metrics like review rates, total cost per document, relevance richness and more. One thing that drives me crazy during my invoice analysis is differentiating time associated with document review into key buckets, especially for paper docs that require bibliographic and unitization coding. The ABA created the Uniform Task Based Management System (UTBMS) codes in the 1990’s and the Ledes Oversight Committee has continued to evolve eBilling codes for Tasks, Activities and Expenses associated with most legal work. I participated in drafting the 2011 LOC eDiscovery Codes as well as the revised 2013 Revised Activity and Expense Codes. All of this effort was meant to give timekeepers and clients consistent ways to measure and track the costs in modern eDiscovery. I just wish most of my clients and their firms actually knew about this and used them. Instead, I see counsel throwing everything under favorite basic UTBMS Litigation codes (generally L110-L140 & L320). To make matters worse, most service providers have not even considered coding their time based services performed under direction of counsel. Counsel considers service providers an expense, but many times they have associates training new TAR systems, performing QC or directly coding subsets of the collection based on search terms. So how do I untangle the invoices?
2017-01-20 VW Legal Hold Indictments: The Crime Is Always the Cover-up Going all the way back to Arthur Andersen/Enron, the cover-up is always worse than the original crime. Serious déjà vu as I read, How VW's In-House Lawyers Screwed Up a Litigation Hold. In VW’s case, counsel ‘leaked’ word of the impending legal hold to key custodians who scrambled to delete thousands of documents and even instructed an emissions related subcontractor to purge documents. All of this came to light when regulators started their inevitable interviews with key employees. I don’t know if you have ever been in the mythical hot seat as a witness or potential suspect of a criminal investigation. During my admittedly short years stint as a CSI, I enjoyed watching investigators and defense attorney’s crank up the heat, even when it was my turn. That heat hit BROIL during the Enron investigations and subsequent litigation. Watching those bad actors fold taught me that company loyalty only goes so far. I was lucky that my bosses at El Paso Corp took the high road thru those dark times. As the newly minted discovery manager, I had to find and turn over all the bad apples asap and sign off on the completeness of document demands. So once again we see corporate malfeasance transformed to criminal indictments when the guilty parties try to hide the evidence. So how do we cut off the instinctive cover-up reflex?
2017-01-16 eDJ Brief – TCDI Fox As I return to take briefings and monitor all my news engines, I am struck by the challenges faced by all of kCura’s competitors. There is no denying that Andrew Sieja has maneuvered Relativity into being the default hosted review platform for large discovery matters. The majority of recent eDJ RFP engagements for managed services have boiled down to what flavor of Relativity the client wants vs. whether they are willing to fight their retained counsel over using an alternative platform. Thus the differentiation theme I keep seeing in my provider briefings. They all trot out what they can do better and cheaper than Relativity as if that should convince AmLaw buyers to jump ship. We saw a similar hype cycle with Clearwell before the product went to hide in the Symantec portfolio. (to be fair, this seems to be the fate of EVERY eDiscovery product acquired by a software Borg) It will be interesting to see how this plays out against the Microsoft-Equivio team’s steady progress towards free in-place eDiscovery functionality. Returning to my briefing by the TCDI Fox team, let’s give you the highlights:
2017-01-11 Turnover at the Top of eDiscovery update their offering profiles. The eDJ Matrix contains over 500 companies with over 900 offerings. Every year, I blast all the profile managers with my reminder that it is eDiscovery/IG buying season, so update your profiles with your new product releases! And every year a larger number of bad email addresses bounce back as upper level marketing/product managers do the eDiscovery shuffle. I had roughly 50 from my Monday blast. The fun part is getting to see where they have landed for the ones that have already registered new accounts for their new roles. With all the acquisitions and RIF’s in the last year, I should not be surprised. Sufficient to say that I would not consider most eDiscovery providers to be a life-long career choice. Maybe that explains the resume roulette that we see every year on the exhibit hall floor. I used to make a game of checking under the keyboards at the booths to see how many had resumes stashed under them. Try it, you might be surprised.
2017-01-09 Gartner Gobbles Best Practices for $2.6B It looks like Gartner is looking to broaden their executive strategic services down the chain to more practical-tactical management best practices for HR, sales, finance and legal/compliance. Gartner is paying $2.6 billion for CEB Inc. CEB Inc. describes itself as, “a best practice insight and technology company. We have a unique view into what matters—and what works—when driving corporate performance. With more than 30 years of experience working with top companies to share, analyze, and apply proven practices, we deliver innovative solutions that help you unlock your full potential.” Some might be surprised at the price tag, but CEB Inc. expects roughly $950M in 2017 revenue, which makes this a 2.7x multiple acquisition price, pretty much what you should pay for a public services company. Back at LTNY 2008, Barry Murphy and myself sat at the Hilton Lobby Lounge and were inspired to start eDJ Group by the service gaps we saw in Gartner and Forrester. Right idea, we were just too far ahead of the market. Sad story of my life with start ups.
2017-01-06 In Situ eDiscovery – Myth or Reality? For decades eDiscovery practitioners have longed for the ability to find, preserve and even review communications and files in the live enterprise environment. Why do we have to make a preservation copy before even indexing the bulk of non-responsive custodial ESI for early relevance analysis? Back in the late 1990’s it was clear that bad actors, mailbox limits and unstable infrastructure posed a significant risk of loss for ESI during the ECA months. Frankly, the email and file servers could not support dtSearch crawling them while under their normal load. Modern Exchange, SharePoint and cloud platforms bring their own robust indexes to the table. So why do most companies still make full custodial/department/system preservation collections? Why do providers routinely advise clients to process EVERYTHING into Relativity? (besides the obvious financial incentive)
2017-01-05 LTNY 2017 Count Down As I finally come up for air after a whirlwind quarter, I realize that LTNY 2017 is around the corner and I have not even started booking briefings and social time. This is what happens when you go silent to get things done. I updated my LTNY tracking sheets and see that the consolidation trend continues to shrink the number of exhibitors and sponsors. Or maybe all the mid-tier providers have fled the high booth costs for lower cost suites in adjacent hotels? It will be interesting to see how many ‘mini events’ have sprung up this year to take advantage of eDiscovery’s largest gathering. The private customer panels run by Lighthouse last year reminded me of the early LTNY panels when I spoke as El Paso Corporation’s litigation support director. Much more transparent and down to earth compared to some of the sponsored panels I have moderated in recent years. I guess the small venue environment allows the panelists and audience to feel more intimate and comfortable. As you can see to the right, the numbers of LTNY exhibitors and sponsors continue to shrink.
2017-01-04 eDJ 2.0 - Back to Basics My name is Greg and I am a recovering eDiscovery consultant, market analyst, researcher and blogger. I hope my readers have missed my sometimes acerbic, always unfiltered commentaries while I struggled to complete my dream home last quarter. If you have ever contemplated building a house, DON’T if you value your sanity, savings and relationships. The good news is that I am back. The other news is the slow transformation of eDJ Group back to a pure consulting practice. In essence, Mikki and I have returned to what we do best, solving eDiscovery problems and saving clients money. It took a year for all this to shake out and for me to decide what to do with the eDJ brand and research engine that so many of you have participated in or used for research on trends, products and best practices. The good news is that we have wonderful clients who want us to stay independent, so I am not selling eDJ to one of the new eDiscovery borgs that have been Pac-Man gobbling up all the small providers. Instead, I am working with my old developer to convert the website to a completely free commentary hub. So what does that mean?
2016-09-07 EDRM Acquired by Duke Law Following the recent announcement that EDRM co-founder George Socha had joined provider BDO, the EDRM organization itself has been acquired by the Duke University School of Law for an undisclosed amount. This should not surprise industry veterans who have been watching EDRM for years as other education and standards organizations have gained market acceptance. From my perspective, the EDRM delivered great value and materials in the first 5-7 years when new practitioners needed a common vocabulary and process definition. It was never a true non-profit standards organization like the LTPI or the LTC4. Maybe moving under the academic umbrella will encourage participation without the agendas of commercial sponsors and partners. As our industry slowly matures we need more unbiased resources and authorities to keep up with our ever changing sources of ESI. The EDRM had a good run. Let’s hope that Duke Law gives it a new focus and solid foundation to serve the community.
2016-08-26 Still Buying eDiscovery by the Gig? Why? Old habits die hard. Consumers have been buying eDiscovery processing and hosting services by the Gigabit ($/GB) since the early 2000’s. I remember how the first copy shops with a Discover-e or LAW license struggled to estimate the hours required to process folders of MS Office files. In the beginning, volume pricing gave buyers a predictable cost to collections. Now the average $/GB has plunged as better technology and automation has commoditized the real cost, quality control. I got the chance to insert a poll question into the recent BNA webinar on Reusing Collections sponsored by Catalyst. With over 350 registrants, we got almost 50% attendance and a great way to get a fast metric on how attendees buy eDiscovery today. What surprised me was the 18% who purported to use enterprise systems to handle all eDiscovery processing in-house.
2016-08-22 Corporate Counsel Taking Control of eDiscovery Sometimes the second take is much better than the first. We ran into technical problems on the BNA-Catalyst webinar back in June that ate into our discussion about how corporate counsel are beginning to reuse collections and work product in mature eDiscovery lifecycles. It is a good topic and we decided to make another run at it with Tom Seymour from Redgrave LLP and Mark Noel from Catalyst. In the end, we completely redid the content and approack after the three of us geeked out with case studies and success stories from recent engagements. If you have time tomorrow 1-2 pm EST, please listen in as we get granular with real advice and strategies. Reusing Collections and Review Work Product across Matters
2016-07-27 And Then There Were Four…Epiq Acquired By DTI Owners Back when I was doing market analyst days for eDiscovery providers, I was frequently asked about the impact of taking a pure play eDiscovery company public. My opinion was and still is that it is a bad move. No matter how important to practitioners, I have never believed that eDiscovery is a long term market segment that stands alongside technology, Information Governance, legal services, etc. It does play vital roles in all of these mega-markets, but has a limited lifespan except for boutique service/tech providers. Sorry folks, but most of our preservation, collection and processing products/services are becoming default platform functionality offered by Office 365 and other systems. This process will take another 20 years to play out, but companies that go public quickly lose the ability to adapt to our changing market and redefine themselves to stay relevant to their customers. There are many global public corporations who have acquired or created eDiscovery offerings, but only a few pure play eDiscovery companies have gone public. My fast list of those left standing:
2016-07-11 Rebranding eDiscovery – Tracking Provider Names Ever wonder what happened to your favorite local or even national vendor? Last week’s rebranding announcement of UBIC/Evolve/TechLaw to FRONTEO forced me to do some overdue maintenance on the eDJ Matrix and got me thinking of brands. We all know that the eDiscovery market is slowly consolidating as it matures. Just watching DTI gobbling up regional shops like pac-man reinforces the “Join, or Die” message that I have blogged on far too many times. A couple quick searches and database checks revealed that most brands disappear in full mergers or acquisitions such as the formation of Omnivere or Consilio. So the FRONTEO rebranding is almost a hybrid merger/branding exercise. TCDI just renamed themselves CVFox and CSDisco is now just DISCO. As our market matures and providers try to differentiate themselves from every other Relativity partner, I expect to see more companies shed older generic name elements such as documents, solutions, services, copy and even discovery.
2016-07-06 Lessons from Hillary’s EmailGate So what lessons should C-suite officers take from the Hillary’s EmailGate? Whether you are or report to a CIO, AG, CCO or any other alphabet exec, you should realize that many or most of your board members and other key custodians under legal hold are using Gmail, Yahoo or even personal domain email and IM accounts to communicate with their peers and social network. Most of these communications, like our Sec. of State, will be purely personal and not contain anything relevant to regulations, active litigation, etc. After 25+ years of internal investigations, custodian interviews, regulatory requests and even congressional inquiries, I can assure you that buried in that sea of golf tips, shopping lists, illicit love notes, grandbaby pics and more are unintentional stock tips, early earnings numbers and worse. Life and network is just different at the top of the corporate feeding chain. Too many execs making 7+ figures do not believe that the rules apply to them. What is worse is the proven fact that they are right.
2016-06-22 SaaS/PC-TAR Distracting Consumers from Mature eDiscovery? As I was comparing the responses from my 2016 Multi-Matter eDiscovery Survey to the original 2013 survey responses, I found a surprising decline in consumer awareness and importance of multi-matter functionality. Given the very strong ROI from my 2013 interviews and case studies, I expected that corporate legal departments would demand cross case reporting and data management features to reduce custodian impact, reprocessing ESI and review errors. After consideration, I have a tentative theory that the hype cycle around SaaS platforms and PC-TAR has focused consumer attention on single matter efficiencies rather than overall eDiscovery management. Many of the new and established cloud review platforms have limited cross-case functionality. Providers such as Epiq, LDiscovery and Lighthouse have custom Relativity dashboards, reports and tools for customers, but my survey indicates that multi-matter functionality is not driving provider selection. It should make for a fun Bloomberg BNA webinar next week with Adam Barr (Catalyst) and Jaime Myers (Caterpillar). So join us for pain points and best practices of creating a true eDiscovery lifecycle next week.
2016-06-13 Arq – Epiq’s Managed SaaS Relativity Some time back, kCura enabled their service channel to essentially resell non-volume based enterprise ‘seats’ to customers on a subscription basis. This was the first crack in the traditional $/GB volume based consumption model outside of on-premise consumer purchase of the technology. Epiq’s Arq℠ is a productized example of a kCura channel partner reselling hosted Relativity as a managed service. Other kCura partners have similar formal or ad-hoc offerings with basic Relativity or with their own integrated reports, templates or other enhancements. Epiq just announced a ‘new’ version of Arq, which I hope incorporates the new interface released in Relativity 9.3. With kCura now directly selling Azure hosted Relativity to consumers as RelativityOne, it will be interesting to see how pricing stacks up when or if kCura makes the RelativityOne pricing model public. For any of you thinking that these SaaS versions of Relativity actually break the $/GB model, I am sorry to report that the monthly subscription rate still seems to be directly pegged to your total volume capacity on the system (based on recent RFP engagements). That is as close to pricing as I will get, but it seems to me that this must be related to kCura license fees as it cannot be attributed to Azure’s pennies/GB storage overhead.
2016-06-02 OpenText Buys Recommind – Fire Sale or Safe Exit for Investors? OpenText is a traditional enterprise document management technology company that has struggled to bring practical analytics and automated categorization functionality to the corporate market. The acquisition of Recommind for $163M is very similar to Microsoft’s acquisition of Equivio back in 2014, but for a much lower revenue multiple. Recommind stopped releasing their revenue numbers when they brought CEO Steve King on board to refocus on cloud based SaaS services instead of direct enterprise sales. Given that OpenText is only predicting $70-80M in Recommind driven revenue in 2017, I am guessing that Recommind’s investors only recouped a 2x multiple. That is practically a fire sale level in Silicon Valley terms and reminds me of Symantec’s acquisition of Clearwell. The article mentions several recent departures of high visibility execs from Recommind preceding the acquisition, which is usually a bad sign. My blog last September reviewed Recommind’s revenue history and plateau. My main concern for customers with active matters hosted with Recommind in the Cloud is whether OpenText will continue to support the SaaS model. I will be watching their 2017 GTM materials carefully and you will undoubtedly get my unvarnished opinion.
2016-05-09 Got a Multi-Matter Success Story to Share? Then I would like to hear about it. Several years back I conducted research on the impact and adoption of multi-matter functionality in review platforms that supported cross matter collections and review work product. I conducted 15 hour plus long interviews accompanied with a short survey. The research report gathered attention and I did a webinar sponsored by Catalyst that dove into the results. While wading through client matter costs on a recent ROI engagement, I was pleased to see law firm tech time charges for culling through prior collections, review and productions. I was happy to highlight how that savvy counsel saved my client time and money. It got me wondering whether smart consumers have up’ed their game in the last 2-3 years and are finally adopting a pro-active cross matter approach instead of the traditional reactive, fire-and-forget matter strategies. So take my Multi-Matter 2.0 survey and email me if you have a multi-matter success or disaster story to share.
2016-05-03 RelativityOne –SaaS Relativity on the Horizon At LTNY several providers asked me cryptic questions and dropped ‘rumors’ that kCura was going to ‘pull a Clearwell’ by undercutting their channel partners. Although I am now out of the market analyst biz, it taught me to always check the source when I smelled smoke. Sometimes you find a house on fire. Sometimes you find the BBQ party. The kCura team made all the right noises about their commitment to a healthy, happy channel and I don’t publish unsubstantiated rumors. At the kCura Spring Roadshow today, Andrew Sieja announced upcoming availability of RelativityOne, a SaaS version of the platform that was unveiled to partners at LTNY. The licensing options and details have yet to be disclosed, but I can see why any service provider who was already struggling with our quickly evolving market would get nervous when his customers could potentially host cases directly with kCura. What do I think:
2016-05-02 Ipro Innovations 2016 eDJ Take Aways Innovations 2016 was the best attended (450+) Ipro user conference to date. The addition of the Sedona Conference CLE sessions expanded the educational content. Overall, CEO Kim Taylor continues the slow conversion of diverse Ipro products into a centralized eDiscovery platform. If you have not kept up with the evolution, you can now buy the ADD processing thru production from Ipro channel providers, on-premise software and cloud IaaS. Last year, Ipro’s automated workflow and integration with Relativity took center stage. kCura’s recent acquisition of Content Analyst has forced Ipro to consider other analytics engines to power Eclipse visualizations and TAR. Healthy competition is good for our clients and the industry as a whole, so I will be interested to see which analytics engine starts to displace CAAT OEM customers. Below are my ad hoc notes from the keynotes and various sessions:
2016-04-27 If You Ask for Plutonium… So the complete quote from David C. Shonka, acting FTC GC, goes something like, “If you are going to ask for plutonium, don’t tell me that you cannot afford the containment system.” To be clear, all of Mr. Shonka’s remarks during the Sedona Conference session tracks at Ipro Innovations were made on his own behalf and not FTC policy. This particularly fabulous quote was in response to my question about the burden of effective security on solo or small firm plaintiffs for large electronic productions containing personal or confidential information. My take away is that proportionality, reasonableness and other factors do not waive counsel’s primary ethical responsibility to safeguard their client’s data or opposing productions. In the days of bates stamped boxes of paper, law offices and providers with man-trap hallways gave clients the illusion of security. Cloud email, mobile review, BYOD and demands for instant online access to massive ESI collections require a more formal diligence to secure and transport ESI. No wonder that some eDiscovery providers have begun to add security consulting and breach response to their offerings. The bottom line is if you ask for it, you have to be ready to provide reasonable protection for your ESI. More conference notes and perspectives after I have done my session on eDiscovery market trends.
2016-04-20 eDiscovery Relevant AI Acquisitions One of my favorite independent search market analysts (Stephen E. Arnold) found a blog by CB Insights Research listing recent Artificial Intelligence start-ups acquired by our favorite tech giants. Perfect timing for my presentation on 2016 eDiscovery Market Trends for Ipro Innovations next week. Only Nexidia’s $135M acquisition came directly from the eDiscovery market. Many of the acquisition targets specialized in analysis of images, video, social media or voice content. I have marked all of those with Natural Language Processing (NLP) or predictive analytics (i.e. more relevant to eDiscovery providers shopping for a CAAT alternative) on CB Insights timeline. I have to say that it is nice to see a market analyst company with an approachable pricing/content model.
2016-04-18 EDna Challenge Take Two I was glad to see my friend Craig Ball update his EDna Challenge on Friday. For faithful readers that missed the original small scale eDiscovery for Everybody scenario published almost seven years ago, it consisted of 50,000 mixed native electronic documents, scanned images and a $1,000 budget. Craig has raised the bar to 100,000 files occupying 12 GB for $5,000. The renewed challenge coincides with a recent RFP engagement that started as a small volume proactive ECA usage case that I shopped to 19 providers. You might say that I have a good viewpoint on small matter eDiscovery solution options, whether on-premise, hosted or SaaS. The primary difference between the new EDna scenario and my client’s requirements is the potential duration. The mythical Edna only has 90 days to review and produce, whereas my typical clients expect to need live access to collections for at least three years. In my opinion, it is the outdated and unreasonable monthly hosting charges that put eDiscovery out of reach for the majority of the SMB market. We (Mikki and myself) have always considered RFP pricing and specific bids to be confidential, so without explicit permission from my recent bidders I will keep my analysis more general. So what portion of RFP respondents could have met the EDna Challenge? The answer may surprise you.
2016-04-14 So Who Is Buying eDiscovery Customers? I got a bit side tracked while preparing my deck on 2016 eDiscovery Trends for the upcoming Ipro Innovations. I wanted a good graphic to visualize the customer buying frenzy happening as the service providers consolidate into global powerhouses and niche concierge shops. I maintain spreadsheets tracking eDiscovery/IG M&A activity (based on Rob Robinson’s excellent Complex Discovery list, the Fenwick M&A and my own search engines). So the question was which of the global service providers has acquired the most pieces of the eDiscovery market pie? In the last year, DTI definitely leads the pack with publicly disclosed acquisitions, but if you look back to my earliest market data (2010), Huron consistently absorbed small consulting shops for their talent until it was eaten by Consilio last year. So enjoy the graphic below and I hope to see you in sunny Phoenix later this month for a fun session.
2016-04-12 2016 eDiscovery Buyer Priorities Survey Results My thanks to all of our participating members who have taken surveys and supported our ongoing efforts to keep up with our dynamic market. I have closed the three question survey on eDiscovery buyer priorities and published the raw survey results. If you have not taken a survey recently, you can get immediate access by taking my new 2016 Multi-matter eDiscovery survey to upgrade your account to participating member for premium access. A couple fast comments on the survey results:
2016-04-07 Are You Hiding in an eDiscovery Fox Hole? It has been a busy week of RFP demos and meetings. Yes, I will try to write up my impressions on the finalist demos, but only after the client has a decision. Two things happened yesterday that got me thinking about how easy it is to get technology tunnel vision while dealing with critical cases or clients. A very sharp exec told me something along the lines of, “I don’t know how you keep up with the latest tech. A RFP is outdated before it is filled out.” Classic fox hole syndrome for eDiscovery professionals who are constantly under assault in high pressure cases. They literally do not have the bandwidth to poke their heads out of their safe place and evaluate new offerings on a regular basis. I lived in that same fox hole during my days in the corporate hot seat. As a consultant I have to devote serious time to reading press releases, briefing with providers and conducting my own market research to keep up with the changes. This kind of time is not practical for most lit support managers in Fortune 1000 corporations or AmLaw 200 firms. They are just too busy. This syndrome afflicts providers as well. Sales reps MUST believe in their offerings to be effective. Providers have limited direct contact with competitor products and generally only hear about competitor services when something has gone wrong.
2016-04-07 Babs Deacon Named Venio CMO & VP Fast congratulations on Babs Deacon being named Chief Marketing Officer and VP of Training & Education for Venio Systems. It is always nice to see former eDJ co-workers and partners doing well in the world.
2016-04-04 Ipro Innovations 2016 – See You There? If you can get to the ipro Innovations 2016 conference in Phoenix later this month, I will be doing a session on key eDiscovery trends on the 27th. This is one of my favorite user conferences and a great excuse for me to socialize while visiting great clients based in Phoenix. Unlike LTNY and others, admission to the sessions and social events are free. For CLE hungry attorneys out there, ipro has teamed up with the Sedona Conference to present a number of CLE-eligible sessions by several excellent speakers such as M. James Daley, David Shonka and Ken Withers.
2016-03-30 Want to Know How the FBI Unlocked the iPhone? Well, so did I in my last post. Thanks to a friend, I can at least give you a method that a forensics provider could have used to determine the 4-6 digit pass code on that phone. It is not pretty or elegant, but it is a practical solution with the right infrastructure. We all know that the forensic image of the phone will wipe itself if you put in the wrong passcode 10 times. The first five tries can be made without delay and tries 6-10 have increasing wait times up to 60 minutes. They could just make LOTS of copies of the iPhone image and make 6 attempts on each before deleting that image and moving to the next. With enterprise class storage, connectivity, virtual machines and some scripting software it would just take time to run through the 1,000-10,000 code combinations. If you think that making copies of the large forensic image would be impractical, a 64 GB file should take roughly 93 seconds on a SATA III drive pushing 6 Gbit/s. This kind of brute force hack takes resources, time and a certain level of scripting expertise, but it only works if the phone has not deleted the encryption keys already. This method is burdensome enough to put it outside the normal proportionality/reasonableness limits in typical civil discovery. It requires either a very long time or the resources of a global service provider/governmental actor. This reinforces the need for proper mobile device termination/upgrade policies and procedures to protect sensitive data when devices leave the company.
2016-03-24 Can Cellebrite Hack the iPhone? No, I don’t have any secret inside information confirming the Israeli newspaper report that Israeli based Cellebrite is the unnamed third party that is attempting to help the FBI crack one of the San Bernardino terrorists locked iPhones. So unless one of my unnamed, anonymous forensic friends has some insight to share, I will limit my speculations to the potential impact in civil discovery. So why do we care if the Cellebrite and the FBI publicly access an encrypted, locked current generation smart phone? Corporations with proper ActiveSync policies, MDM or MAM software already have the ability to force an administrative password reset or remotely wipe the device. Up until this point, counsel could only access encrypted BYOD devices that were either unlocked by the owner or had been altered to grant access (when the user first connected to corporate email). Furthermore, corporations were not concerned with upgraded/outdated devices as long as protocols were followed to wipe the old devices. Depending on what the proposed hack is, if it can bypass the stored encryption keys to access the device, we may have a problem.
2016-03-21 SaaS-Cloud Offerings Category Added to eDJ Matrix A recent RFP engagement reminded me how useful it is to be able to find SaaS-Cloud offerings without having to use the filters on my eDJ Matrix. So I created a new category for tech offerings that have a SaaS-Cloud purchase option. I am still updating listings for the new Online Purchase feature, but hope that providers will update their listings before I catch up.
2016-03-21 Your eDiscovery ROI, Fact or Fiction? My headline may be a bit of tongue-in-cheek fun, but it is founded in years of creating ROI calculators for both clients and providers. Sales reps and marketing execs have run amuck with all too many of my well-intentioned spreadsheets in their quest to secure capex budget for their products or services. “If you don’t buy EasyButtonDiscovery, Greg says that you will go broke in 5 years!” Not going to happen*. You are talking about Return on Investment (ROI) because someone has identified the cost of eDiscovery as a problem already. Mikki and I tend to get called in when a company has recently tried to respond to a savvy regulator, prosecutor or plaintiff who ‘rocked the boat’ by asking hard questions about their preservation and collection scoping process (or lack thereof). Suddenly doing eDiscovery ‘right’ when you have been coasting on pre-FRCP methods is expensive. You are already behind the eight ball with the requesting party that caught you with your procedural pants around your ankles. Now you may have to go beyond the standard of reasonable care to appease a distrustful magistrate.
2016-03-14 Did kCura Just Buy the eDiscovery Market? Last Friday kCura acquired the Content Analyst Company for an undisclosed amount. The CAAT® OEM analytic engine provides deduplication, email threading, clustering and other analytic visualizations for the majority of eDiscovery review and ECA platforms in the Market. kCura’s Relativity already dominates the hosted review market segment and most of their competition has CAAT powering their analytic functions. Are we going to see “iConect powered by kCura” branding? I doubt it. I am betting that the kCura team made a smart ‘cheaper to buy than rent’ analysis of the CAAT licensing fees derived from Relativity. It reminds me of the FTI acquisition of Attenex. Will kCura immediately leverage CAAT licenses against their competitors?
0000-00-00 Exterro Top eDiscovery Blogs List Just thought that I would share Exterro’s list of top eDiscovery blogs if it had gotten lost in the marketing noise. Nice to see eDJ on the list and to see resources provided without a marketing message or registration barrier.
2016-03-09 eDJ Brief: ESI Laboratry – Production Analyzer Good sales and PR reps know have a patient persistence that pays off. I try to respond to briefing requests, even when they are outside of my current research or client focus. Identification and analysis of production sets is generally at the wrong end of the discovery lifecycle for our corporate clients. ESI’s lab’s marketing rep put up with being put off through the hectic pre/post LTNY weeks and earned a briefing for his client. In this age of cloud platforms and corporate ‘everything-in-one’ document management multitasking systems, the Production Analyzer is a throwback to old school single purpose software. You point it at an incoming or outgoing TIFF-text production set and it gives you a report that flags all the redactions; black box, text overlay or hybrid. My eDJ Matrix shows at least 14 unique offerings with automated redaction features developed to address increasing concerns over PII and cross border privacy mandates. Some of them have good logs to track redactions, but none of them that I have demo’d enable you to compare across production sets or versions of documents. Here are my briefing notes:
2016-03-01 Why Blind RFI? Because Providers Can’t Follow Instructions Have you conducted an eDiscovery RFI/RFP exercise? Did your phone blow up for days as persistent sales reps had ‘just a couple questions’? Did you throw your hands up in despair as the responses trickled in bearing little resemblance to what you asked for? Sending out a RFI/RFP is like ringing the dinner bell while standing in a pack of hungry hounds. You can’t blame them for wanting any scrap of inside information that might give their response an advantage. You can blame them for not reading instructions or the customer requirements. As you might guess, I am in the middle of another RFP engagement and I want to share some of the lessons learned.
2016-02-22 Where Should Your eDiscovery Live? Ever have meeting deja vu? That realization that you are asking the same questions and delivering the same advice over and over again? That feeling drives me to write in hopes that my next client will have read my blog and we can skip the rinse and repeat cycle. Several recent engagements have kicked off with overviews on the three primary ways that eDiscovery processing, review and analytics can be consumed. On-premise software – Classic purchase/lease that is installed on your servers and you administrate/run the software. Hosted Repository – A service provider processes, loads and manages your collections within their private data center. You are generally paying per GB plus optional services. SaaS Cloud – The newest option where you create an online account, upload/ship your data and generally administrate/run the review with minimal tech support. Each of these solution approaches has wildly differing pros, cons, costs, risks, required skills and more factors to consider. Some software (such as kCura’s Relativity) can be consumed via all three approaches. Others (such as Logikcull) are a pure SaaS Cloud offering. My point here is to do your homework before you start asking your favorite donut provider to send you a bid for taking control of your matters. Write down your usage cases and relevant requirements. Know your needs and your limits. Get input from outside counsel without letting them dictate the results. Some questions to consider before starting:
2016-02-08 LTNY 2016 Perspectives Legal Tech 2016 certainly had a lot to say about the state of the eDiscovery marketplace. Back in December I sampled the sponsor/exhibitor pages to see how this year stacked up against prior years. Although the conference picked up one sponsor and twenty exhibitors in the final 45 days, The LTNY event demonstrates the provider consolidation trend that has seen more acquisition/investment capital in the last 12 months than the prior 12 years. For an industry supposedly becoming mainstream and integrating with the traditional technology powerhouses, only the newly rebranded Hewlett Packard Enterprise (HPE) went for the full sponsorship route. All of the other track sponsors, keynote providers, etc. came from pure play eDiscovery providers such as FTI, Nuix, LexisNexis and others. Ad hoc counts of badge colors at various times gave me a rough 3-to-1 ratio of vendors to consumers in the exhibit maze or landings. All of this is purely anecdotal because ALM has not released actual attendance counts or rations since 2008 that I can find. To me, LTNY is our biz dev/career fair/trade show, even if some marketers dress it up in CLE clothing. I had a good time in the unexpectedly warm weather. Here are some of my briefing notes and event impressions:
2016-01-25 2016 Mobile Discovery Survey Results If you missed it, I wanted to call your attention to the raw survey results for my 2016 survey on mobile device discovery. If you registered via LinkedIn or you used a work email address so that we can verify your market role (Corporate/Firm/Provider/Government), then you can access all premium eDJ reports, raw survey results, eDJ Notes, etc. by taking a short monthly poll. This converts you to a Participating member in our not for profit research site. I hope to do a full research report updating the state of mobile device discovery soon.
2016-01-25 Gearing Up for LTNY 2016? Are you planning on braving the icy sidewalks of New York next week? Well Mikki and myself will be there doing briefings, running down client requests and mostly catching up with friends old and new. Once upon a time, you could find our team anchoring the Hilton lobby bar through the days, but remodeling has made it challenging to find a good location to talk shop. Instead of trying to schedule peers and friends, I have decided to adjourn to the Old Castle Pub on Tuesday afternoon (4-6pm) before all the events kick off. So if you are worn out from your first day of sessions and exhibit hall crowds, drop through and visit with us.
2016-01-11 Can Former Guidance CEO Save AccessData? The forensic security software world has always been a bit strange and incestuous when you peek behind the PR curtain. The core code for modern forensic collection software was created by or for law enforcement or other government agencies. The customers were early CSI geeks like me back in the 1980-90’s. We did not have real budgets and were happy sharing hacks, root kits and command line scripts as we struggled to keep up with rapidly evolving data sources. From my perspective, AccessData has struggled with reclaiming their brand identity after acquiring Summation and launching their own eDiscovery services division. They have returned their focus to selling forensic and security software, but consumers do not follow sudden left turns of the brand like ex-analysts. So AccessData has needed something to reinforce the return to core offerings. They have recruited Victor Limongelli to be Chairman of the Board after a decade managing their primary competitor Guidance Software. Wow. More...
2016-01-05 eDJ 2015 Perspectives Enjoy my ad hoc observations and opinions on last year’s market and the trends that I am watching: • Dramatic, transparent M&A activity. >$2.5 B compared to $92M in 2014. Even if you remove $1.6B from acquisitions of Kofax and Aderant as being eDiscovery adjacent, we still had 800-1000% investment growth. • Massive, slow migration from enterprise data centers to outsourced private cloud, Office 365, Google Docs and other SaaS/IaaS solutions. More
2015-12-15 Got Your LTNY 2016 Pass? If you put off registering, you dodged the $50 late penalty that ALM used to bump up early registration this year. It vanished from the event site as the December 1 deadline passed. It will still cost you $99 to access the Exhibit hall and keynotes if you do not register before the show, so don’t procrastinate. Mikki and myself will be escorting clients on shopping missions, briefing with providers and generally catching up with friends old and new at the social events. I am running late this year filling my conference schedule, so shoot me an email if you would like to talk shop.
2015-12-10 My Only 100% PC/TAR Adoption Story If you missed my webinar today, I believe that the recording will soon be available on the EDRM and Ipro websites. My advance apology for the neighbor’s car alarm that cut off my last interview story at the end of the hour. Those of us who work from home understand that neighbors, construction, mailmen and worse create unexpected background interruptions. Never one to just leave an audience hanging, I thought I would finish the point here.
2015-12-09 PC/TAR Adoption Webinar Tomorrow Join me and Tammy Doss from Ipro to discuss my research findings on PC/TAR adoption tomorrow. Sorry for the slowdown in perspective recently, but back from my annual dive trip and working on some new blogs. State of the Industry: TAR & Analytics End of Year Report Dec. 10, 2015 at 1:00 p.m. CST
2015-11-18 Conned by Confidence Levels? Mea Culpa I trust my readers to take me to task and keep my blogs accurate with immediate feedback. In response to yesterday’s blog on acceptable confidence levels, I received several complementary emails and one that bluntly called the entire survey question and post “wrong-headed”. My expert friend and critic was right on the money when he pointed out that a confidence level or interval is a sampling measurement rather than a measurement of how accurate or stable your PC-TAR relevance model has become through the sampling/training process. I don’t want to dive back into precision, recall, F1 and other statistical jargon. The PC-TAR promoters have spent 2-4 years trying to educate attorneys and lit support practitioners on the wonders of machine learning with limited success. The smart marketers have dumbed down the ‘when to stop’ message and mistakenly promoted simplistic concepts of ‘98% confident’ because they resonate with consumers. I fell prey to this dumb-speak and promise to do better in future surveys and blogs. The question sought to understand whether practitioners had arrived independently at a standard measurement for completeness when using PC-TAR for typical civil litigation responsiveness retrieval. These are the kinds of questions that our consulting clients ask all the time, “How are others setting the defaults on Relativity Assisted Review training?” In fact, sampling confidence level is one of the first decisions that eDiscovery counsel have to answer. Essentially, how big do our sample training sets need to be for an acceptable level of confidence in the resulting recall, precision and stability? That is easy to understand, much easier than F1 stability, overturn rates and the other measurements that actually support the final ‘when to stop’ decision. No one likes the quenticential consultant/counsel answer to every question, “It depends.” But that is what every interview respondent said when pressed. There is no standard measurement of completeness for PC-TAR yet. Having one would speed adoption, but be wrong in too many instances. Thank you all for the feedback, good and bad. It helped further the discussion and clarified an important point. Keep it up!
2015-11-16 When do YOU Stop Training Your PC-TAR Platform? It started with a question at the last Today’s General Counsel Exchange in Houston that NO ONE answered. What confidence level or stability measurement is ‘enough’ for civil litigation relevance engines? Actually, all of the usual suspects on the speaker’s circuit gave the classic consultant’s answer of, “It depends…” So I asked a similar question in my 2015 PC-TAR Survey that just closed. Surprisingly, most of the respondents gave real numbers instead of all electing the ‘Other’ full text option. 42% said that they generally felt a 95% confidence level was acceptable while 27% thought 90% worked. Survey questions only tell half the story. That is why I have gotten in the habit of backing up my surveys with 10-20 interviews with eDJ Group participating members. I am always impressed and surprised by their acumen and savvy insight. Almost every interview respondent said something like, “Yeah, I would go for 90-95%, but really it depends…” Behind the survey numbers, their reality was much fuzzier and driven by the matter, jurisdiction, opposing counsel temperament and many more factors. Several reported 60-80% confidence when using PC-TAR to assess opposing productions or high speed regulatory requests when trying to appease an agency demand. I have compiled my updated research for a presentation to the Houston Association of Litigation Support Managers (HALSM) on Wednesday and I hope to find the time to create my formal report this week. Some surprising results, but overall confirmation of the trends highlighted in my 2014 Analytics Adoption report.
2015-11-11 Will Office365 Kill the PC-TAR Market? As I wind down my 2015 PC-TAR research, I have found some interesting trends driven by the new FRCP amendments and caselaw. Just like last year’s survey results, the numbers do not tell the whole story. With 82.5% of respondents (take the survey!) using PC-TAR to review documents, I could easily jump on the marketing bandwagon and say that it is being used by the majority of matters. I would be wrong. Just because a law firm or corporation has experimented with PC-TAR on a couple cases or been forced to use it due to time/volume constraints does not mean that they are using it for most of their matters. Instead of ramping up from last year’s usage estimate (5-7% of matters), many interviews revealed a laser focus on selective collections to produce proportionate, relevance rich reviews by a small inside/outside counsel team.
2015-11-09 eDiscovery Geeks - Off the Partner Track? Are you the go-to eDiscovery associate or counsel at your firm? Do they drop you into every meeting that contains esoteric terms like email threading, search criteria or clustering? You are wined and dined by hungry vendors and grateful client litsupport managers alike. But how do your partners and peers view your role and future at the firm? Guess what, you may now be pigeon-holed as the firm geek and your partner track may now lead in circles. Why? Because a good chunk of the money you save your clients generally comes out of the partners pockets. Your culling-processing protocol just cut the collection by 80%. That sent your fellow associates scrambling to find other billable tasks instead of coasting through the holidays at 40 docs/hour. I wanted to share these observations from my ongoing analytics adoption interviews. After a recent briefing with David Cowen, I added asked my interview respondents if they thought that analytics would help or hurt their eDiscovery careers. Several savvy respondents highlighted the general resistance to using PC-TAR for actual relevance/privilege decisions. That opened the door to the observation that generally partners are made based on their ability to recruit new clients and expand firm revenue. Very few firms have launched an eDiscovery practice group or actively promote their eDiscovery expertise/capabilities. These firms may reward and respect an eDiscovery all-star partner, but they seem to be the exception to the rule. It may be that the slow transformation of the U.S. legal economy through Alternative Fee Arrangements and new professional conduct rules will rescue associates with a technical fetish from a career dead end.
2015-11-04 Will Analytics Kill eDiscovery Careers? As I conduct my 2015 Analytics research, I am asking interview respondents how they think the trend towards analytics and automation will impact eDiscovery careers and roles in the next five years. I have just finished my first round of interviews and already have a couple interesting tidbits to share. We all know that technology has the long term potential to replace, reduce or transform jobs in any field. My initial respondents certainly felt that automation of technical collection, processing and culling tasks would reduce technician headcount, but not impact ECA, search crafting and other tasks requiring human discretion. Interestingly enough, they did NOT think that PC-TAR review would eliminate full time paralegal or counsel positions. Instead, they felt that the swollen ranks of firm associates and contract attorney reviewers were vulnerable to market pressure instead. Not from PC-TAR adoption, but from proportionate, targeted collections resulting from maturing eDiscovery teams empowered by the new Federal rules and caselaw. You don’t need PC-TAR for a single skilled practitioner to tackle a couple thousand email and files with a modern eDiscovery platform like Relativity, IPRO, CaseData or others. A decade ago, savvy paralegals loaded small custodial self-collections using Summation’s eDocs & eMail module (sidenote: the requirements for that module were done on bev naps at my favorite SF bar – Plouf). Despite all the technical limitations and problems, that desktop software met the self service needs for most small matters without a huge eDiscovery budget. It is my view that the use of analytics on in-place enterprise data to make proportionate, defensible collections will return us to those days for a large percentage of matters. There will always be massive class action, EEOC, regulatory or IP matters that require large scale PC-TAR or linear review, but these should be the exception. Smart providers and practitioners will adapt their offerings and skills to meet the new demands. More insight as my interviews continue. I still have some time slots open for corporate or firm practitioners willing to share their perspective on analytics in eDiscovery, so send me an email or at least take the survey!
2015-11-02 eDJ Brief: Relativity 9.3 There is no denying that kCura’s Relativity leads the online review technology market. Too many of our corporate RFP engagements start with, “Besides Relativity, is there anyone else we should consider?” eDiscovery consumers are incredibly risk adverse. They want a sure thing. In the software industry, I call that the IBM syndrome based on the old FUD sales strategy, “No one ever got fired for buying IBM.” Once a brand is perceived at ‘market leading’ it’s purchase becomes defensible. Clearwell rode this wave to dominate the service provider channel market until the Symantec acquisition in 2011. Knowing that Relativity is at the peak of brand dominance puts immense pressure on Andrew Sieja and his team to use the $125M round of funding to make that market perception of security a technological reality. Every startup has a tendency to ‘check the boxes’, i.e. put in bare bones features to meet RFP requirements. They are so busy trying to be everything to everyone that development cycles are robbed of usability and functional depth. Clearwell definitely fell prey to this syndrome during their time on the eDiscovery wave. The kCura team is very aware of the potential pitfalls of being the market leader and they seem determined to avoid them. Here are my take aways from my briefing with kCura last week:
2015-10-26 2015 Analytics Adoption – Gaining Speed About this time last year I wrapped up research to get insight into real world analytics adoption because I could not find any other objective market data. We ran a short survey (with some flaws) and followed up with roughly 30 interviews across eDJ subscriber groups – corporate, law firm and provider. The 2014 analysis report and survey results were published last November and can be downloaded by members who have participated in a survey within the last month. I ran an update survey (with 5 better questions) in June and published the early results without analysis. When the HALSM group picked analytics as a speaking topic from my list of recent research, I decided that the new survey results deserved another round of interviews to go deeper on the uptick in usage. So I have reopened the survey and will be conducting short interviews up for the next couple of weeks. I don’t expect the trends to change with the additional respondents, but things do move very quickly in eDiscovery, so it will be interesting to see if we can double the data with the interviews.
2015-10-22 eDiscovery Education - The Next eDiscovery Marketing Campaign I was scanning my search engine feeds and noticed a common theme dominating the usual product press releas, caselaw and Relativity certification announcements. I have always insisted that any sponsored webinars focus on real content, but I am now seeing more formal educational material being generated directly by providers. kCura’s launch of the Relativity Academic Partner Program at Relativityfest really caught my interest. According to the announcement, nearly 50 law schools have already signed up to get access to software, technical infrastructure and instructional materials. There is so much potential benefit and harm for provider driven content being delivered by formal academic institutions that it boggles the mind. I remember early debates at EDRM about these kinds of programs and frustration that we could not get the resources allocated. The more than $2.2 Billion (yes, I capitalize that B) in 2015 investment in the eD/IG market certainly is trickling down to the next generation of law students and technical colleges. California’s new requirements for eDiscovery technical competence and other compliance challenges (EU Data Protection) are raising the bar for counsel and giving marketer’s an audience. Let’s hope that the content is solid and peer reviewed to remove potential bias.
2015-10-14 Content Analyst PC-TAR Free For iCONECT Customers More than 50% of consumers (N=75) in my 2014 Analytic Adoption survey paid on a volume basis on top of basic processing/hosting charges. Content Analyst’s CAAT analytic engine has dominated the OEM market and generally required these volume based charges to their service provider channel partners. Last December iCONECT customers got to give away CAAT based analytics for pro bono matters. Today they went a step further and eliminated the analytics upcharge for all XERA customers and service channel partners. They are not the first Content Analyst OEM to do this, as Ipro made a similar ‘all in’ pricing announcement for Eclipse customers last December. We have seen clients push for unlimited analytics licensing in RFP engagements selecting preferred providers or managed service contracts, whereas it still seems rare in reactive, ad hoc matters. This has to put pressure on providers locked into volume based OEM license agreements. Does it have anything to do with Content Analyst’s foray into direct-to-customer SaaS sales of Cerebrant? Probably not. But it does confirm my belief that analytics are a requirement for any competitive eDiscovery platform.
2015-10-13 A Peek Behind the Gartner Magic eDiscovery Curtain Expect a barrage of press release headlines claiming triumph from Gartner’s new “Critical Capabilities for E-Discovery Software” ranking report. FTI is happy to furnish you a copy in exchange for your contact info rather than pay the $1,995 list price. The eDiscovery market has always been too broad to be realistically covered in one ‘Magic Diagram’ by either of the traditional analyst firms. That is why eDJ Group decided to focus on detailed market analysis of actual buying categories instead of over-simplified scatter graphs from the earliest days. Gartner’s new report ranks qualified providers (read analyst clients) in three eDiscovery usage cases by different weightings of rankings in six ‘critical capabilities’. Surprisingly, Gartner has actually published the raw and calculated scores along with the provider qualification criteria. My time as a ‘market analyst’ made me a serious skeptic of most analyst reports and ranking diagrams. It is nice to see a big firm make small steps towards the ideal of transparent, granular analysis aligned with consumer purchasing requirements.
2015-10-13 eDJ Quick Take on Relativity 9.3 With Relativity Fest in full gear, kCura has given us the first look at the new dynamic dashboards in Relativity 9.3 (GA release next month). Look forward to a full eDJ Brief late next week after the kCura team have recovered from the love fest. For now, here are my quick reactions:
2015-10-08 eDiscovery Investment Tops $2.2B for 2015 With the announcement of Roper Industries acquisition of practice management software provider Aderant for $675M, my rough tally of publicly disclosed investments in the eDiscovery/Info Gov market space hit $2.2B with a billion this week. Rob Robinson keeps a good chronological list of M&A activity here. A couple interesting notes for your consideration. 2014 had 34 announcements, but only quantified roughly $92M in press releases. I know that unquantified acquisitions of familiar private players such as Applied Discovery, TeamConnect and Falcon Discovery represent several times that total, but 2015’s higher rate of disclosure demonstrates more mature, outside investment in our market. We all discount HP’s 2011 $11B Autonomy acquisition as an aberration in the market, but 2015 shows that eDiscovery is slowly integrating into the global enterprise technology/services market space. Although Aderant does not publish their revenue, Roper’s bullish projection of $125M in 2016 revenue for Aderant leads me to ballpark their 2015 revenue around $100M. That give this deal a 6-7x multiple, which beats most deals that I analyzed in 2014. Nice to see the multiples creep back up and enough M&A to justify the $15B+ market estimates batted around between the ivory tower analyst shops.
2015-09-29 SharePoint 2016 IT Preview – the eDiscovery Perspective Corporate legal should keep an eye out for new Microsoft releases that may impact data sources on legal hold or native eDiscovery capabilities. Many of my ‘Good Karma’ inquiries start off with something like, “Our IT says that we don’t need ProductX because Microsoft’s latest release now does that functionality.” This may even be true since Microsoft introduced the SharePoint eDiscovery Center depending on your workflow and requirements. After a fast blog based on the early SP2016 release comments, I have spent hours digging through Microsoft and outside materials regarding the new SharePoint Server 2016 IT Preview made available recently. ‘IT Preview’ is Microsoft speak for beta release designed for test environments. The full release has been pushed back till next year and there is no upgrade path from this beta to the final version. So what new functionality might have eDiscovery impact for corporate legal and their outside teams?
2015-09-25 Managed Services Good Enough for SEC - $102M Annual Contract This headline scrolled through my feeds, “CACI wins $102M contract for litigation services.” So who is CACI and how did they beat out ‘market square leaders’ such as Epiq, DTI, D4, FTI and others with ample analyst budgets? CACI ranks 28th in the 2013 Top 100 Contractors Report, 12 slots below Booz Allen and 9 below HP. These are overall IT-Security service leviathans cruising the market depths for the big government scores while familiar sharks and killer whales battle for corporate and law firm victims. CACI does indeed do investigations and litigation support. They have an accredited forensics lab and their own cloud hosting platform (OMEGA) that stresses Section 508 security compliance for “specific collections” to supplement the usual tools – Relativity, Clearwell, Equivio, iCONECT, Axcelerate and Summation. This announcement is a good reminder that our view of the eDiscovery market can be a bit myopic. We live in the midst of the marketing trees and have to climb a government mountain to see the trees in proportion.
2015-09-18 Recommind – Changes Horses Midstream Recommind has always played the brand and marketing game better than many eDiscovery players. What started as a fast (and erroneous) blog based on my search engine serving up a 2012 video interview of Recommind CEO Bob Tennant ended up in the realization that Bob has just handed the reigns over to Zantaz veteran Steve King. A sharp reader caught my date error and blew away my original assumption that Recommind's revenue had been flat since 2012. Or did it? Recommind heavily promoted their rapid revenue growth in the 2009-2012 period taking them from $14.7M up to $70.5M as one of the first predictive coding offerings on the market. The steady stream of press releases giving hard growth and revenue numbers dry up in 2012 and the company took $15M in funding by the end of 2013. My interpretation is that Recommind rode the PC/TAR wave and sales to early adopters (especially government agencies) before losing momentum by investing in the IG market too early. Now they have refocused on a SaaS Go To Market model just as many hosted review companies are floundering with corporate customers demanding an alternative to volume based pricing. Newly crowned CEO Steve King has a solid track record and experience with SaaS. Maybe he can guide Recommind through their conversion. I will be watching and trying hard to not jump to conclusions (especially those based on outdated information).
2015-09-14 Microsoft SharePoint 2016 – Proactive Perspective on eDiscovery With so many of our global corporate clients moving to Office 365, I follow Microsoft announcements and releases closely. Buried in the SharePoint Server 2016 comments by Bill Baer, senior technical product manager, was the capability to perform “proximity scans” of SharePoint documents for PII, PHI and other query criteria to take actions. This functionality includes 51 “out of the box” templates for SSNs, CC #’s, etc. for Office 365 and on premise SharePoint implementations with the latest release pack. I fought to put this kind of ‘auto categorization’ functionality into enterprise archive products back in my own product management days. We saw little uptake because customers were not ready to ‘own’ classification and taxonomy. Maybe Microsoft has waited long enough for the customers to catch up to the technology. What is fascinating is how MS views this functionality as ‘eDiscovery’ vs. information governance. In the long run I believe that they are indeed one and the same thing, but we are talking decades down the road. MS has some very sharp people tackling eDiscovery in their legal department. That expertise may not have disseminated through the PM or PMM teams as yet. Maybe I am just being too picky. After all, the real solution to eDiscovery burden lies in the ESI lifecycle.
2015-09-14 TGC’s Houston Exchange – Worth It eDJ’s conversion back to full time consulting essentially took Mikki and myself off the conference circuit last year. Browning Marean’s open conversation format for the Today’s General Counsel Exchange has always been one of my favorites. I am glad that I found the time to make the event. It reminded me why all eDiscovery professionals need to fight for educational time and budget. I respect the event principal of ‘protected anonymity’ too much to attribute quotes, so consider the blurbs below my highlights. Day one kicks off with a round of introductions and ‘what am I looking for’ from ALL attendees. That’s right, you cannot hide in the back in this format. This intro session usually takes an hour and has some of the most interesting content from my perspective. The agenda rolled on and BYOD quickly derailed the IG session. Time for me to refresh my BYOD surveys and research.
2015-09-23 How Many Clicks to Review? XLS Jumps on Relativity Bandwagon If you are counting, Xerox Litigation Services now offers THREE different review platforms to clients with their announcement. My apology for the LTN link, but the XLS website is so confusing that I could not find the actual press release on an open page. If you have not been following XLS, they started with their proprietary OmniX™ review software and then acquired Viewpoint a few years back for an all-in-one solution option. Now they serve up Relativity, the current eDiscovery golden child brand. So how many review platform options does a provider need to compete?
2015-09-08 PC-TAR Adoption 2015 vs. 2014 I closed and uploaded our 2015 PC-TAR Adoption survey results to the site today. My analytics adoption research last year helped to push the 2014 survey participation (n=136). Even with a smaller participation (n=27) for the 2015 update survey you can see a 100%+ growth rate (graphs below) in participants who had actively used PC-TAR. That is a pretty incredible adoption surge rate. I would posit that this statistical surge is more about consumer awareness than an actual 100%+ increase in matters using analytics. Thanks to everyone who took the 2015 update survey and I have just uploaded a quick two question poll on matter management functions that you can take to get access to all raw survey results. That’s right folks, we don’t obfuscate the results by restricting access to the complete metrics, unlike the majority of ‘analysts’ and ‘education’ providers.
2015-09-01 Mitratech Strategy Response Now that I am no longer wearing a market analyst hat or doing formal paid briefings, I love getting feedback from the providers on my blog perspectives. Mitratech management responded promptly to my Pacman analogy blog with this quote, “Mitratech is continuing development on both the eCounsel and TeamConnect platforms as our flagship products for the corporate enterprise and SMB markets, respectively.” So their strategy seems to be TeamConnect for the big enterprise market and eCounsel for the SMB consumers. They also indicated that they have invested in migration tools to eCounsel for both Lawtrac (2014 acquisition) and CaseTrack. Mitratech may indeed have privately communicated their long term plans to phase out Lawtrac to existing customers, but that message in not apparent on Mitratech’s website and they are still advertising recent Lawtrac sales. How many matter management offerings with different code bases can exist in one company? My opinion remains that in the long run, you can only thrive when you have a single platform underlying your offerings to different market segments. That opinion aside, it takes years to migrate and spin down an acquired product without burning customers and your reputation. Mitratech has done a better job of communicating their intentions than the vast majority of providers that I have covered over the years. The important message to prospects and customers seems to be that Mitratech is focusing on TeamConnect and eCounsel development now that they own a much larger share of the matter management micro-market. eDJ will be pulling Lawtrac and CaseTrack off of our RFP materials and hoping that we get some more cloud based start ups to fill those spots soon. We like competition and options for our clients.
2015-08-31 CaseTrack Customers Gobbled Up By Mitratech PacMan Style More than 100 CaseTrack customers were essentially bought by Mitratech for an undisclosed price. These customers will have “a clear and straightforward path to upgrade to Mitratech’s award-winning enterprise legal and contracts management platforms, eCounsel, TeamConnect, and GettingContractsDone, as determined by each client’s individual needs and preferences” according to the press release. In just a couple of months, Mitratech has shrunk the case management market space and by my calculations has grown their client base from just over 300 to 750 – a 250% jump in 2 months when you include the Bridgeway acquisition. My quick revenue searches found that Mitratech was estimated at roughly $50M, while unconfirmed estimates report Bridgeway was $10-25M and EAG (CaseTrack) was $5-10M. I have to commend the Mitratech management team for not playing coy with CaseTrack’s customers like they have with Bridgeway’s eCounsel’s customers. When you acquire competitive products, only one can survive in the long run. I never understood executives who pretended that they did not already know which product was slated for the dumpster before they decided on the acquisition multiple (cost). When you buy a company, you value it for a number of factors:
2015-08-24 ACEDES Podcast SME Interview I participated in an ACEDES Metro New York Chapter 15 minute podcast by Joseph Bartolo (Kiersted) and Bradley Schaffel (Wilmer Hale) today. I will add a link when it is published to the regional or national ACEDES sites. They are aiming at 15-20 interviews covering ACEDES eDiscovery members, law firm lit support and other subject matter experts like myself. The series is pretty open format with the following topic questions and my answer points below.
2015-08-18 Please Don’t Feed the Vendors! My blog on the potential for a battle of the eDiscovery Borgs (consolidated national providers) sparked a fast and rather harsh perspective from Andy Wilson (Logikcull CEO). “When frightened, the herd naively rallies together as one to fend off the thirsty, ferocious, and evolved/mutated predator from plucking each doomed prey from the pack.” As a market innovator counting on disruptive pricing models, I can see why Andy views most vendors as herd animals. Instead of viewing the Borgs as predators, I see them as the last refuge for small and mid-tier vendors too addicted to the sweet profit margins generated by immature $/GB customers. The early EDD vendors had to be rough, feral omnivores to survive in a legal community that did not even acknowledge email as evidence until it was printed. Yes, I can recall arguments with a general counsel who said something like, “We have never produced an electronic file and they are not ‘documents’ on my watch.” Points to any colleagues who can privately name that GC.
2015-08-12 Fun Blog on the Newest ESI Source – Your CEO’s Car Although discovery on ESI sources classified as “The Internet of Things” are generally edge case scenarios, Bill Kellermann’s perspective on the recent Wired stories on hacking car infotainment systems is an excellent read.
2015-08-12 Veritas Acquired for $8 Billion Symantec is completely out of the enterprise info management game. In 2004, the software giant acquired Veritas for $13 billion in stock. I joined the product management team in 2006 during the golden years of rapid expansion. A recession and increasingly cloud based market kept the ‘Veritas’ segment revenue flat at roughly $2.6 billion. So Carlyle Group and the Singapore sovereign wealth fund G.I.C. have now paid a roughly 3X multiple for the newly spun off Veritas. Makes you wonder if the Symantec board had this in mind before the spin out. I am sure that major Symantec shareholders will ask those hard questions, probably through their attorneys. I still believe that the enterprise tech unit has the IP and internal talent to bring a real Information Governance solution to the market if they can break through the development log jams that plague most global technology providers. Good luck guys.
2015-08-12 Provider Consolidation – Impending Clash of the Borgs? LDiscovery LLC (AlphaLit|FlashData|RenewData|Turnstone) is the latest frankenvendor to announce another acquisition of a regional player, Credence Corporation. We seem to be hitting the tipping point in the market where regional or single shop providers without a unique value proposition (tech, licensing or boutique services) must die on the vine or join one of the national provider Borg’s. ESI processing and hosting prices are steadily dropping as these conglomerates leverage efficiencies of scale on these commoditized services. If you have not conducted an open RFP recently, you should. Mikki and myself are frequently surprised to find legacy pricing and terms in current invoices when we do assessments and strategic planning for new clients. I am no fan of the pricing limbo game, especially when I see buyers resorting to shuttle bidding. “Well, ProviderX will do that for $50/GB. How low can you go?” Volume based, commoditized services devalue quality and keep the market addicted to just-in-time buying models. Corporate buyers should invest in their provider partners with managed service contracts that reward quality and results over short term profits.
2015-08-11 When Will PC-TAR Be Assumed Instead of Disclosed? In my 2014 Analytics Adoption Research found a surprisingly low rate (5-7% overall) of professionals relying on PC/TAR systems to make relevance decisions without human confirmation. Now that Mikki and myself spend the majority of our time solving consulting client conundrums and have to fight for research time, I gobble up every survey I can find to track our fast moving market. Digital WarRoom blasted their 2015 IQ Meter survey out to 20,000 email addresses and got 400 responses for their 15 broad market questions. Any time you find a survey statistic quoted, you should check to see if the source actually published the raw survey responses (like we do). Why? Because it too easy and tempting for marketers to ‘summarize’ responses to fit their agenda. DWR survey Questions 11 and 13 take us back to PC-TAR:
2015-08-31 Expanding My Vocabulary – Presstitution ***Mild rant warning*** My thanks to Stephen E. Arnold for adding this oh-so-applicable term to my eDiscovery market vocabulary. The original Technonomy article titled “Are Media Companies One Native Ad Away from Becoming Presstitutes” defined ‘native advertising’ as publishing paid 3rd party content, presumably without a clear declaration that the external content was sponsored. I love the terminology and believe that it describes the core problem with eDiscovery ‘news’ and ‘educational’ resources. My belief is based on my own experiences starting almost a decade ago with my earliest sponsored blogging for DCIG. From the first briefing with sponsors I found myself fighting subtle or direct pressure to deliver their marketing messages. Very few experts can dedicate the time to research or write on our quickly evolving profession without direct compensation. The legal technology consumer base is unwilling to pay for independent research or perspective. Instead, vendor marketing budgets fuel content creation shaped by the key conclusions calculated to create leads and support go to market campaigns. That is my firm opinion of how our ‘news’ is shaped, filtered and broadcast. I have played my own part in this mess by writing sponsored ‘white papers’ and articles. Barry Murphy and I insisted that everything was researched and written independently before sponsors decided if they wanted to license our findings. We were sure that consumers would pay for real research and perspective once we had established a good track record and reached enough of them. We were wrong. I now believe that the old models of subscription news, market analysis, product research and others are essentially doomed. Most have quietly converted business models to the production of defacto ‘advertorials’, ‘infomercials’ and ‘PResearch’. I hope that you enjoyed the new terminology as much as I have. Be a savvy reader and buyer.
2015-07-22 Immaturity and eDiscovery Incontinence Andy Wilson’s call to “end eDiscovery” as we know it is not just a clever bit of guerilla marketing. His slings and arrows of outrageous fortune justly criticizes the stubborn immaturity of eDiscovery buyers compounded by the $/GB avarice from vendors. Been there, wrote that blog a few times. It is good stuff and good fun. Outdated approaches and purchasing models do drive up costs. I think that he missed one of the key causes to this ‘stain’ on our industry. Babies and puppies make messes because they do not know better. Immature eDiscovery buyers are frequently isolated by the adversarial and confidential nature of our art. So called educational webinars and other free resources are almost entirely created by marketing departments to support those same high margin offerings that we are criticizing. We need to break down the walls of self-censorship. Why can’t we publish pricing? Why do vendors refuse or ignore RFI/RFP forms that force them into clear apple to apple comparisons? Besides the usual update lag, why are there only 53 out of 886 offerings in my eDJ Matrix that have published pricing? We cannot expect providers to go against their own self interest, especially those with shareholders or investors to placate. So it is up to buyers to break down the barriers and help the entire industry become smart, mature practitioners.
2015-08-31 Map to Making a Data Map I was refreshing a presentation for a prospective client meeting and thought that I would share a fun slide. A ‘Data Map’ can mean many things, but I always just took it literally as a map to all of your potentially relevant ESI. But the physical locations of your data centers and local hordes of hard drives is less important than relationships to business units, custodians, retention categories and more. I actually enjoy profiling the systems, finding the legacy caches and essentially visualizing the data lifecycle of complex corporations. Every company has evolved a unique set of interdependent systems with their own ESI formats and content. If you are tasked with making a ‘data map’, I hope that this helps you see past the pretty software to the bigger profiling challenge.
2015-07-21 iManage Bought From HP By Management – Autonomy Iceberg Breaking Up? Just as I was lamenting the shrinking field of Matter Management offerings suitable for enterprise level customers, the founders/execs of iManage announced that they have extracted their product from Autonomy-HP borg. I hope that the developers did not drink the IDOL Kool-Aid and are able to revert the database/index/analytics back to something practical for customers to deploy. This on the same day as U.S. District Judge Charles Breyer approved a $100 million settlement between a Dutch pension fund and HP over the Autonomy acquisition. Catch the Courthouse News Service article title, “Pensioners Get $100M for HP’s Takeover Flop”. Nice juicy terms such as “disasterous $10.3 billion purchase of Autonomy Corp.”, “botched acquisition” and “blamed former Autonomy executives for misrepresenting its revenue”. Fun.
2015-07-20 Mitratech Acquires Bridgeway – Is Consolidation Good for Buyers? Matter management platforms that are suitable for large enterprise customers are not as common as a simple Google search or general software purchasing site would lead you to believe. There are LOTS of home grown Saas offerings suitable for solo or small firms, but very few with mature, customizable workflow actually designed for corporate legal departments managing hundreds or thousands of legal matters. When Mitratech announced that their acquisition of Bridgeway would benefit these enterprise customers, I immediately wanted to see how many viable competitors were left in the market, which is not as easy as that sounds. I created a matter management category in our eDJ Matrix that found 9 solutions, but experience tells me that our categories require some research to tune and nudge the providers to update their listings. My quick impression is that one of the leaders in enterprise legal management (ELM) just absorbed another primary competitor. That leaves providers with broader offering suites such as Thomson Reuters, HP, Exterro and IBM. eDJ’s clients now have fewer options for matter management functionality without all the baggage.
2015-07-13 Does Diversity Find Unanticipated Relevance? The ‘TAR Wars’ have argued incessantly over the different approaches to training the analytic engine to extract the 1-3% of relevant items from your raw collections. Proponents of true random sampling (Herb Roitblat of Orcatec) have criticized ‘Active’ sampling based on user provided seed documents because the active approach might miss unanticipated concepts or documents. In other words, some approaches are great at finding what you already know about, while others might find relevant documents that you never even considered and eliminate potential reviewer bias. Given the selective recall of many corporate custodians, diligent counsel will want to know the good and the bad before trying to settle a matter. Savvy counsel, providers and consultants have used multiple approaches in the primary review and QC stages to optimize recall while tackling ever larger collections. The conceptual navigation approach starts with a visualization or inventory of conceptual clusters to let the collection ‘speak’ for itself. Brainspace, Tunnelvision and other platforms have advocated this top down conceptual navigation to know what you have before you start training your relevance model. Catalyst has coined the term ‘Contextual Diversity Sampling’ to describe their system to find topics that reviewers might have missed in the Continuous Active Learning process. There are all kinds of jokes about how diversity can make us all PC. Call it what you want, I am pleased to see more mature, practical analytic workflows hitting the market. We all know that manual linear review of 100% of collections is neither accurate nor practical in the face of the corporate data hoarding juggernauts. So we need review solutions that even conservative counsel will get behind to tame skyrocketing discovery budgets. Keep asking hard questions and sending me feedback on both hype and success.
2015-07-13 eDiscovery Reference Materials Worth the Shelf Space You have heard my skepticism and concern about marketers in educational clothing. It is a nice change to call your attention to some solid reference material on eDiscovery developed for a formal, traditional law school program. Michael Arkfeld’s 3rd Edition now exceeds 1,700 pages (available in CD or through LexisNexis online). eDiscovery is a relatively young discipline and most courses, white papers or other resource materials are out of date before they are even published. Michael’s long term perspective tempers the usual overstatements made in the rush to ‘best practice’. His core reference book and four supplementary practice guides are a worthwhile investment for new practitioners and departments. Yes, Michael graciously sent me the latest release to review, but he took his chances on my somewhat acerbic feedback just like technology vendors who send me software to break. I could not find any discussion of the 2015 FRCP Amendments that will take effect at the end of the year, but we never really know how those will play out until argued before the bench anyway. As much as I shy away from spending educational budget on what are effectively ‘mail order certificates’, I will continue to recommend Arkfeld’s material to my corporate and law firm clients to help new personnel up to speed.
2015-07-02 Jack Halprin – We Will Miss You Big Guy Bigger than life. That was Jack. The big guy lost his battle against cancer this morning and the eDiscovery world is a smaller, darker place. Others can rightly expound on his contributions to our rather esoteric calling as a leader at Guidance, Autonomy/HP and most recently Google. Right now I just miss my friend. He never let go of that irrepressible intensity, irreverence and honesty that we all brought to our first job. If you are up to it, raise Jack’s favorite Jägermeister shot in remembrance.
2015-07-01 Analysis According to Palantir Back In 2007 Stephen E. Arnold caught this early (2007) Palantir blog entry attempting to explain what Palantir does (or did from a systems engineer’s perspective) to interview candidates. Although this is incredibly dated, the explanation of the functional components of ‘analysis’ and the human role in them still has merit in light of our eDiscovery relevance challenge. Worth a fast read. Here is my extracted interpretations: Three core disciplines for large data set analysis:
2015-06-30 RIF’d? Join the Club and Dust Off Your Resume With all the VC money flowing into the eDiscovery market right now, why are providers, companies and firms cutting experienced practitioners? The combination of a large professional network, accessibility and independence puts me high on many people’s call list when they land on the Reduction In Force (RIF) list. The last month has had my Inbox bombarded with a wave of long term friends hitting the job market at the same time as I am seeing $400+ million in investor capital injected into our market. I get the energy company legal departments downsizing to show theoretical savings, even when I bet that they are spending MORE on outside services from case budgets to cover the lost headcount. I do not mind the time to mentor, make connections and review resumes. Others have helped me when I made my many transitions between law enforcement, law firm, provider, corporate, analyst and back to consultant. We should all remember those who found even one opportunity when it counted and pay it forward. As for the eDiscovery market, I believe we are experiencing a long delayed maturity catharsis in providers and consumers. Firm partners and corporate counsel have demonstrated a remarkable recalcitrance in the face of new methods, technologies and billing models. Many have clung to treating ESI review like 1980’s paper discovery. While outside investors see the maturation of eDiscovery as proof that it is time to get in the game, adaption to a mature, efficient business process requires massive reorganization for both providers and their clients. That puts good professionals on the street looking for their next employer. If you have found yourself suddenly unemployed, use that free time to catch up on market and send me a blog. I am happy to publish it and get your name out there IF it is genuine, relevant and entertaining – like I try to be. And if you are looking for an experienced eDiscovery professional who has worked with me at some point in my 25+ year journey, shoot me the job description. eDJ is not a placement agency and I don’t give recommendations/connections to folks unless I have worked with them.
2015-06-30 Certifying Analytics – Marketing vs. Substance As my 2014 analytics research demonstrated, analytics has become a marketing buzz word like ‘smart’, ‘intelligent’ or ‘predictive’ to imply new technology to make something easier or better. Press releases like “Mitratech Launches Certified Legal Analytics Partner Program; HBR Consulting Earns First Certification” make me ask hard questions like: “What does this actually mean?” – “What is legal analytics in Mitratech speak?” – “What does certification mean to customer? Guarantees? Standards?” I think you get the idea. My take after digging through the release and Mitratech’s public material is that Mitratech has a consulting partnership with HBR to help customers use their dashboard and reports. I get this and frankly Mikki and I do a lot of similar technology enablement projects following up on solution design and RFP engagements. Good for Mitratech, HBR and their customers. But it is not ‘Certified Legal Analytics’ in my book (based on public materials). Everyone wants to work smarter and needs analytic tools to visualize relationships, trends, clusters, differentials, averages, etc. Providers will insist that dynamic reports and dashboards featuring charts and graphs check this functional box. Maybe they are right. But we have checked that same box using Excel, Access and customer SQL apps for decades. Show me something new.
2015-06-25 Palantir – $20 Billion Giant or Another VC Balloon? Palantir has been on my radar for a couple years after spending an hour at their LTNY booth. They have neat toys and a much higher level of sophistication regarding the practical applications of their visualizations and analytics than most start-ups. They throw around customer success stories from well known pharma and financial names along with ‘un-named’ government agencies. Their market valuations have shot through the roof since 2009, hitting $9B (yep, BILLION) at the end of 2013, $15B at the end of 2014 and now $20B in just seven months. If they are that successful, why are they still taking rounds of funding? If they want to play in the eDiscovery space, why not just buy up key IP from small players and produce a COTS eDiscovery platform that actually works in a large enterprise environment with their petty cash? The hype and tech mystique around Palantir remind me of Autonomy in their hayday. My only hope is that all those “failure is not an option” secret customers provide the Palantir team the motivation and funding to actually deliver on all the eye candy. The market has been hungry for a practical analytic platform that can tackle the diversity and scale of today’s corporate ESI.
2015-06-24 Another Desktop eDiscovery ECA Steal – Intella P.I. for $99 Australian Vound software is offering a version of their Intella ECA/investigation tool with a 10 GB/case volume cap for $99. If their Solution Comparison Chart feels a bit redundant, it is. The only real difference that I could see in versions is about whether it is a solo desktop or a shared discovery platform with multiuser access. All the other versions are just volume caps and packages. So what does Intella do? Process, search and investigative review of collected ESI. Sounds a lot like where Nuix started out, an Australian forensic tool built for volume and speed. Maybe my friend Craig Ball spotted other up-and-coming Australian eDiscovery tools suitable for his EDna Challenge while he was down there recently. In the US market, we seem to have lost affordable desktop ECA tools in favor of enterprise class processing platforms with hefty price tags. The low entry Ipro Eclipse SE offer took me back to the old Summation iBlaze suite that allowed my clients to run small matters without a dongle or having to worry about billing back $/GB charges. The big boys may have the marketing money to buy their way into an analyst’s mystical diagram, but more nimble players are starting to bring right sized solutions to the SMB market for affordable and reasonable eDiscovery functionality. Keep’em coming and I will keep telling it as I see it.
2015-06-17 First Chink in Relativity’s Armor? kCura’s Relativity has dominated the hosted review market. But when EVERYONE has Relativity, how can service providers differentiate themselves beyond the race to the lowest $/GB? Think back just a couple years to when Clearwell seemed to own the channel market. Clearwell seized the consumer brand recognition and national service providers quickly had certified Clearwell PMs running searches and supporting small reviews. kCura captured that same brand recognition with a new level of scalability and review usability that gave legal process outsourcing (LPO) providers like DTI a non-proprietary platform to host large, multi-party reviews. DTI has invested heavily in Relativity (creating a custom redaction tool and being a Relativity Best in Service Orange partner). I am sure that DTI is not walking away from that investment and all those hosted cases. However, DTI is expanding their ipro partnership to offer PC/TAR review hosted on ipro Eclipse. Why would DTI offer TWO review platforms with CAAT powered TAR? I am guessing that ipro’s ‘all in’ pricing and new workflow automation are a strong motivation. Customers are tired of the analytic sticker shock (and yes, I am still seeing $200/GB fees for CAAT analytics). They want predictable costs and ‘one click’ processing. It will be interesting to watch the other big national players to see if they too expand their review platform options.
2015-06-16 Caustic Critique Better than Mystical Square on Enterprise Search Many market analysts covering enterprise search, archiving or other Info Gov technologies may have mixed feelings about search specialist Stephen E. Arnold and his completely unfiltered blog, Beyond Search. Mr. Arnold seems to have a positive disdain for the products and opinions published by what he calls the ‘azure chip’ consulting-analyst firms. Luckily for eDJ Group, we were too young and focused on the eDiscovery market segment during our tilt at those same institutional windmills to attract his attention and frequently caustic commentary with our research reports and perspective. Secretly, I always admired his style, even when I did not agree with Mr. Arnold’s conclusions. His blog rehashing Gartner’s 2014 “Magic Quadrant for Enterprise Search” is positively peppered with pithy counterpoints and observations. Retroactive criticism of a firm’s mystical square or wave is kind of like watching early reruns of the Daily Show, amusing but dated and out of context. These ranking visualizations are a good indicator of the competitors who have the funds and/or maturity to pay for a sufficient block of ‘analyst days’ to market their tailored messages to the captive analysts. Dig through the suits by ZL Technologies or NetScout for fun background. In the end, analysts publish opinions and I still believe that they are entitled to them, however arbitrary or biased they may be. It is the consumers’ responsibility to winnow the wheat from the chaff. I hope that you enjoy Mr. Arnold’s blog as much as I did. His unfiltered perspective helps remind me why we left the ‘market analyst’ field to resume full time consulting.
2015-06-15 Less than $400 for Desktop Discovery? If you are a legacy Summation iBlaze, LAW or even more esoteric desktop processing user, you should check out ipro’s limited time offer for 50% off of your first copy of their new Eclipse SE. The word on the street had a single user annual subscription starting around $750, so this offer brings it low enough for most to just expense it. As always, I am not a paid marketer and I have not done any analyst days for ipro since we shut down the market analyst group early last year. I just know that there are a LOT of old Summation iBlaze customers out there looking for a replacement and this might meet your requirements. Have fun and let me know how it works for you!
2015-06-15 Vendors in Educational Clothing? Not sure if you heard about all the rain and flooding down here in Houston, but that is just one reason for my recent hiatus from blogging. Once life takes you away from your routine, it is hard to get back in the saddle, but press releases like this one from OLP give me all the incentive I need to write. Now you know that I hate to pick on any one vendor when my real concern is a broader trend that I want to call your attention to. In this case, it is the way that some for-profit providers effectively cloak their true nature and revenue source by presenting themselves as ‘organizations’, ‘associations’, ‘reference models’, ‘institutes’ or other labels intended to convey academic authority. eDiscovery is such a young and cross-functional discipline that many new practitioners indiscriminately consume ‘best practices’, certificates and purchasing guidance without understanding how the source of that self-proclaimed authority makes money. I happily include myself in that ‘self-proclaimed’ group, because in my opinion there were and are no classic non-profit or academic standards bodies out there to grant anyone eDiscovery authority. Others can and will disagree with me, but all I am asking you is to ask the question, “Show me the money!” before you allocate educational time or budget.
2015-05-05 My Take on Ipro Innovations 2015 Downsizing eDJ from a market analyst firm back to boutique strategic consulting pretty much took Mikki and I off the speaker’s circuit for 2014. So besides escorting key clients through the LTNY maze back in March, this has been my longest hiatus from conferences in a long time. At last week’s Ipro Innovations event, I did a short 20 minute session on who is moving to the Cloud on the main stage and then a fun session on my key 2015 eDiscovery trends. Both slide decks have been uploaded to the eDJ Group site for members who have taken a survey in the last 30 days.
2015-04-20 IG vs. Discovery in the Cloud – 2015 Survey For the last several years, eDJ has conducted surveys that confirmed the accelerating trend of companies moving their messaging, collaboration and other IG systems to the Cloud. This year I am interested in whether consumers are starting to actually conduct discovery in the Cloud as well. My ongoing eDJ poll ‘Where do you conduct eDiscovery’ has yet to turn up anyone who ‘knows’ that their eDiscovery is being conducted in the public Cloud out of the 16 respondents so far. I know that many popular hosted platforms and well known channel providers use the public Cloud (Amazon S3, Microsoft Azure, etc) for secured servers and storage. This makes me wonder if most customers are either not asking the right questions or if savvy providers have figured out ways to ‘rebrand’ the public Cloud with ‘private instances’. Sounds like I need to add some new features and categories to the eDJ Matrix to separate the apples from oranges.
2015-04-17 Risk vs. Reward - Read Receipts We had a customer question on whether they should/could disable read receipts in corporate email. There was little business value in their vertical for active use of read receipts (i.e. they did not have a large sales division) and a smart attorney on the stakeholder team thought that they posed more risk than reward. Doug Austin’s blog about Fox v. Leland Volunteer Fire/Rescue Department Inc. is a good read on the potential risks of ‘automatically authenticating’ the fact that a custodian saw a specific message, even if I can think of a dozen scenarios where read receipts falsely report custodian awareness. Shutting down read receipt functionality on Exchange or Office 365 is a simple Powershell Cmdlet:
2015-04-13 Is IT Being Jettisoned in Cloud Adoption? Something occurred to me while working on my upcoming Ipro Innovations session on ‘Who’s Making the Jump to the Cloud & Why?’ The fundamental role of IT was to create and maintain the dynamic technology infrastructure that supported the applications, connectivity and storage required by the business users. Over time, simple server-client applications evolved into customized enterprise platfoms that made strong IT department essential for competitive corporations and firms. Long standing virtualization and centralized storage trends have made these enterprise platforms relatively hardware agnostic, a key requirement for migration to a public Cloud environment. Now that CIO’s everywhere seem to be sending pilot balloons into the Cloud, is there a role for the traditional IT administrator? Many traditional processing/hosting service providers are asking the same question about their future role in the eDiscovery lifecycle. Are they needed when the ESI is created, collected, processed, reviewed and produced in the Cloud? Because that is the direction that companies small and large seem to be headed. It will be a couple years before Microsoft is giving away fully integrated Equivio Zoom functionality to all Office 365 customers, but sharp providers and IT should be looking at that road map and redefining their own roles if they want to stay relevant and employed. I will share some high points from my session or you can participate in person if you happen to be in Phoenix next week. Meanwhile, here is a fun graphic from my deck.
2015-04-08 Iris Acquired for $134M by Epiq A quick back of the envelope calculation shows that Iris Data Services was acquired for a roughly 3.5X multiple ($134M / $38M revenue) to Epiq. That is neither good nor bad for a services business when compared to the rumored 8-10X multiple Microsoft paid for Equivio. Iris certainly jumped early into the managed services market and has kept their marketing focused on that. Epiq has seemingly struggled to break out of the golden ‘big case’ trap into a business model with better growth potential. It will be interesting to see how this culture marriage works out. I see it as ‘bet the company cases’ vs. ‘everything you can eat eDiscovery support’. I will be looking for health reports from current Iris managed services customers in 6-9 months to see if the wheels are still on the cart.
2015-04-08 Gartner Leader HP Bails on Cloud? Reality Checked I love it when my search engines turn up evidence that the left hand rarely knows what the right is doing. This morning brought me contrasting articles with the HP press release announcing ‘Gartner again names HP Autonomy a leader in eDiscovery software’ and the NY Times blog indicating that HP is ceding the public cloud market to Amazon, Google and Microsoft. Of course, it is very easy to misconstrue even a media-trained executive’s statements instead of just echoing them without a bit of diligence. The first distinction to draw is the difference between HP’s attempts to convert their physical hardware business into a direct competitive offering to Microsoft Azure/Amazon S3 VS. HP Autonomy software-as-a-Service offerings such as cloud backup, HP LiveVault, etc. Not directly competing with Amazon S3 is very different from shutting down their relatively nascent Autonomy-as-a-service offerings. HP’s quick clarifying press release trying to make it clear that ‘not competing head-to-head with the big public cloud players’ does not mean that HP is leaving the public cloud market. With HP hardware due to split with Autonomy enterprise software later this year, the HP play in the cloud infrastructure market does not really matter that much to the typical eDiscovery/IG consumer.
2015-04-07 Desktop LAW Replacements? Good Luck I had almost thought that the venerable Yahoo LitSupport list had finally died when a classic question arrived this morning seeking replacement options for LexisNexis’s LAW. Although the poor poster will now undoubtedly get a wave of sales rep responses, they were probably prepared to deal with the spam. The good news is that there are LOTS of processing/EDA/ECA tools on the market, but most are server based platforms instead of desktop apps. The main difference is the sticker shock you will get looking at ‘modern’ Processing/ECA tools compared to the old school LAW flat purchase price. LAW’s low cost and lack of volume caps/costs is why it is still around. Responding to the request (yes, I still answer posts on the list and direct questions) got me thinking about how the classic small firm or private company solo lit support power user has been caught in the market transition.
2015-04-06 DTI Acquires Merrill Legal Solutions Group – But Can They Convert Customers? I hate to say that it is not surprising that Merrill Corp. decided to sell their legal services group while the international customer base still held significant value. This lets Merrill drop a division that felt like it had lost momentum and market differentiation. As the eDiscovery service market evolves, traditional providers must either grow, innovate or die. DTI has steadily acquired stalled regional providers for their clients and talent, but this is their largest acquisition to date. DTI moved early into outsourced discovery managed services and now I am watching to see if they can convert these acquired litigation customers into long term management subscriptions.
2015-04-02 Cerebrant: SaaS Analytics from Content Analyst Following up on the recent press releases, I wanted to get the scoop on the new Cerebrant offering straight from Content Analyst. As a reminder, Cerebrant is Content Analyst’s first direct offering to end consumers instead of adding analytic functionality to one of their many eDiscovery partner solutions. Content Analyst is working hard to hammer home the message that Cerebrant is NOT intended for the eDiscovery market and that they will NOT be competing with their eDiscovery OEM partners. Having now demo’d Cerebrant, I can reassure you that it is not designed for eDiscovery. So what is it? Cerebrant is a hosted SaaS analytic interface enabling conceptual/similarity search and visualizations. That is what it does, but how can it be used? Content Analyst is focusing on supporting Pharma and Talent Management verticals initially, though customers can upload processed text and delimited metadata fields to the standard version. Below are my briefing notes:
2015-04-01 BYOD Story - Have Data, Will Travel Several years ago a good friend still in law enforcement shared the disturbing trend of international hackers buying used corporate smart phones for their stored credentials. Most of my clients have implemented basic BYOD security requirements that ‘can’ limit the damage from a lost, stolen or sold smart phone packed with customer PII, confidential pricing data or worse. A Buzzfeed story popped up in my search feed that shows the lighter side of unsecured smart phones. It is a warm and fuzzy tale that includes gobs of pictures and stored iCloud credentials that is worth a quick read. After you have recovered from your emotional sugar coma, let’s look at how easily this story could have turned dark and scary.
2015-03-26 Understanding Office 365 & SP2013 Search Extensions I found this nice chart that details the file types/extensions that default SharePoint 2013 and Office 365 will index. The “FH” column indicates the important content indexing. If it is not marked as “FH”, then you are limited to searching by the name, location, file type, date or other metadata. Mike Smith’s blog closes with a nice link that details the process for implementing a custom iFilter to index specific file types. From a discovery perspective, I always want to confirm the exact list of iFilters that some helpful admin may have added or removed. Here is a link to the get that list. Too many times I have been debugging a strange search behavior only to find out that the system was ‘tuned’ to optimize performance over search retrieval.
2015-03-25 Let the Relativity Hosting Wars Begin! Back in December I wrote a blog about my opinion on monthly hosting charges in this age of cloud storage. Safe to say that I think that the typical market rates of $10-15/GB/month for hosting your collection in a review platform is highway robbery. Many providers have shed their private ‘data centers’ and moved their servers and/or storage to the public (encrypted) cloud (Amazon or Azure). Some regulated or highly litigious customers need the illusion of security provided by provider ‘data centers’. Why do I keep putting ‘data centers’ in quotes? Because a locked room with redundant power and HVAC in a strip mall is NOT more secure than encrypted cloud storage. A small subset of providers have invested millions into the very infrastructure and certifications that most CIO’s are trying to jettison, the rest make up the difference in marketing. When I received Evolve Discovery’s latest promotional email (below), I assumed that they could safely make this half price offer based on moving to cloud vs. privately hosted infrastructure. Oops. I work hard to verify assumptions before they make a ‘you-know-what’ out of me. Evolve is proud of their SSAE 16 certified private data center. So either they have negotiated a serious Relativity hosting discount from kCura (unlikely) or they are feeling the pricing pressure and want to lock in as many of the whales (big customers) as possible, even if means paying the transfer costs to their competitors. Fun times to watch the price of Relativity hosting plummet.
2015-03-24 Logikcull Closes $4M in Funding A fast update to my recent briefing on this pure play SaaS eDiscovery provider to the SMB market. While chatting about the $370M+ in recent VC investment into the eDiscovery market, Andy Wilson hinted at an upcoming announcement. Little did I know that Nick Mehta of Gainsight (my prior boss and favorite startup entrepreneur) was participating in the investment. Understandably, Andy was seriously jazzed about getting Jason Lemkin of Storm Ventures on his board. If $4M in capital feels tiny compared to kCura’s $125M round of funding, then just put their customer markets in perspective. kCura and the vast majority of eDiscovery technology/service providers are all fighting over the tip of the iceberg, namely the corporate and large enterprise defendants. A relatively few providers like Logikcull provide scalable, low overhead cloud service solutions for the SMB parties lurking under the surface. You can bet that I will be watching Logikcull closely now that Nick Mehta has put his toe back in the eDiscovery market.
2015-03-24 IDG 2015 Big Data/Analytics Survey – It’s Not What You Think Having run a lot of these annual surveys, I can understand how the market focus evolves over time into something that does not quite resemble the title. That does not diminish the value of the response metrics. So my take from the excerpts of IDG’s “2015 Big Data and Analytics” survey is that ‘data driven initiatives’ are more about smart migrations and legacy clean up than ‘Big Data’ IT makeovers. One interesting note is the increased confidence in enterprise security. Security concerns were perceived as one of the largest hurdles for cloud data initiatives in our 2013 eDJ surveys. This feels like progress as on-premise and cloud infrastructure and systems become more mature.
2015-03-23 Zapproved & Amazon – Betting on eDiscovery in the Cloud I keep an eye out for eDiscovery announcements/events that partner with core infrastructure or IG players. The upcoming webinar by Zapproved and Amazon Web Services (AWS) on Cloud E-Discovery caught my attention. Zapproved’s recent round of funding ($15M), acquisition of eCloud Collect (rebranded to Data Collect Pro) and hiring spree all signal their intent to push the ‘cloud only’ SaaS solution. Only a few players (X1 Rapid Discovery) have made the technological/business investment to make their offerings available directly from the AWS store. This webinar makes me wonder if Zapproved is headed in the same direction. What does that mean to a consumer? Imagine spinning up your own private, encrypted discovery service in Amazon with just a corporate credit card to cover the subscription and AWS costs. Most customers are not there yet, but with large Microsoft Office 365 migrations cloud SaaS eDiscovery makes sense. Take my survey on eDiscovery in the Cloud to get access to the raw survey results.
2015-03-18 DJ Survey Results – Evidence vs. Collection & 2012 Cloud Survey Just a fast note to alert readers that I have been trying to get recent and historical survey data loaded to the eDJ Research Report page. Please excuse the slow login and page display speed. We are working on some database cleanup, but you can get access to all reports (ignore the old purchase prices) by logging in and answering five quick questions on where you conduct your eDiscovery. We have made a lot of changes in the last year and it is worth a quick recap. Now that we have phased out our analyst and subscription divisions, eDJ Group has returned to focusing on strategic consulting and client driven research. We continue to blog and publish research on the eDJ Group site, but have converted to a participation model. To access the eDJ Matrix, research reports, survey results and more, just log in with a validated account and take a quick survey to get 30 days access to all premium content. The 2015 Evidence vs. Collection Survey has some interesting metrics and a good distribution of respondents (n=53). Previously, we only published raw survey results inside of eDJ Research papers, so I am slowly pulling survey data from 2011-2013 period to give you full access as we run 2015 updates.
2015-03-18 eDJ Brief: Logikcull It has been almost a year since Andy Wilson, Logikcull’s CEO/Founder. I have to confess that we spent more time talking about the evolving eDiscovery market than digging into the SaaS platforms new features. Andy’s team has done a pretty good job of keeping their eDJ Matrix profile up to date, so I guess that the real news is how their public pricing subscription model has taken off. Sometimes the consumption model is a more important differentiator than the latest, greatest machine learning black box. Here are my briefing bullet points:
2015-03-16 CAAT Steps from Behind the eDiscovery Curtain Two press releases from Content Analyst caught my attention and generated discussion with CAAT OEM partners. Last week, Content Analyst announced the release of Cerebrant, a direct SaaS analytic software “designed to enable subject matter experts to create an online workbench with large collections of content from disparate sources, and navigate and explore their content sets in a matter of hours.” Digging into the details, it appears that customers will upload zipped collections of native files that will be processed/stored in AWS for triage and analysis. I did not find the term ‘review’ on any Cerebrant materials, so Content Analyst appears to be avoiding the lucrative relevance review/PC/TAR market. Although Content Analyts may not want to directly complete with their OEM partner network (which includes kCura, IPRO, iConect, Mindseye and many more), I cannot see how their partners could view this any other way. The cloud based review platform market segment in under incredible pressure to lock in customers before Microsoft can integrate Equivio and give away in-place analytics.
2015-03-06 Venture Capital Continues to Flow into eDiscovery Market It feels like the Microsoft acquisition of Equivio rang the dinner bell and has VC investors salivating at the chance to pump cash into the eDiscovery market. We have seen $400+ million flow into our little market in the last quarter alone. Clearview’s acquisition of mid-tier service provider Xact Data Discovery for an unspecified amount is just the latest announcement. Here are a few examples:
2015-03-03 Draft eDiscovery ISO/IEC Standard 27050-1 I enjoy your feedback, especially when my readers can point out something I may have missed. My thanks to both Shelley Podolny from H5 and Brandon Leatha from IDS for drawing my attention to the international standards giving an overview of the eDiscovery process that have been under development for some time. As you can see from the page, the standards are still in the working draft stage. The full title is ISO/IEC CD 27050-1 and it has been put under the Security techniques (27050) classification. I remember the fanfare and discussion around this project back in 2013, but it had slipped from my radar without any subsequent public releases or project insight. At least this initiative is part of the established, formal international standards system. Even if this Part 1 standard does nothing more that codify definitions and re-affirm existing concepts, it will be a step in the right direction. Here is some draft introductory language that was so kindly provided to me:
2015-03-02 Question Authority: eDiscovery Education Providers One of my old clients asked my opinion on where she should spend her hard fought 2015 eDiscovery education budget while we were catching up at LTNY. A few minutes into the conversation and I realized that those talented marketing spin doctors had done a fabulous job of confusing consumers about the realities of eDiscovery certifications, standards bodies, continuing education and actual higher education courses. Since the arrival of the 2006 FRCP amendments, eDiscovery practitioners have struggled along without any governing standards body handing down practical methodologies, practices or any kind of formal educational path for neophytes to get up to speed. Most industries have non-profit 'Standards Developing Organizations' that bring together diverse process participants in a transparent, formal system to publish definitions and guidelines by consensus. In my opinion, provider product marketing has funded and driven the vast majority eDiscovery education that is available today. The Sedona Conference gives attorneys 10,000 foot level principals, but never intended to teach the litigation support tech how to process email from a PST. In 2005, a bright group of folks put together the Electronic Discovery Reference Model as a visual model of the typical workflow from that time period. Although I contributed to the subsequently formed EDRM working groups for many years, I was disappointed to read the notice at the bottom of the December EDRM Update:
2015-02-27 Escalate - Start Up SaaS Review - Worth It? Several year's ago, my friend Craig Ball put forth the Edna Challenge, a quintessential small matter with minimal ESI and a $1,000 budget. Earlier this week I posted a blog about SaaS providers and concluded with an opinion that the eDiscovery market is not friendly to smaller litigants, namely non-public companies and boutique firms without litigation support teams. One of the new providers that I called out stepped up to own the fact that they only cover a narrow slice of the discovery lifecycle. Escalate did not dodge my unfiltered take. Instead, they sent me a demo login and asked for my feedback, good and bad. Well here it is:
2015-02-26 Kmart Decision Further Validation of Defensible Expiry Trend K&L Gates' summary of the opinion in United Corp. v. Tutu Park Ltd., No. ST-2001-CV-361, 2015 WL 457853 (V.I. Jan. 28, 2015) is worth a fast read. I believe that it constitutes continued confirmation that corporations are not expected to keep electronic files beyond a reasonable retention period. From the bang of Judge Sheindlin's gavel back in 2004, corporate counsel have hoarded every email, file and digital scrap in fear of spoliation sanctions. Up until two to three years ago, we saw few client counsel willing to approve expiry of any ESI, even when it was not specifically under legal hold. Now we are supporting 'defensible deletion' initiatives in most of our corporate engagements. The CIO pressure to consider migration from unstructured file shares to on-premise SharePoint, Office 365 or other cloud repositories offers an excellent opportunity for funding 'smart migrations' that clean up these digital landfills. Decisions like the Kmart case help bolster GC confidence that they can make common sense decisions and stop being a road block for good corporate information governance.
2015-02-24 But is Recommind Even in the KM Market? "Recommind Named to KMWorld's 100 Companies That Matter in Knowledge Management." Really? How does an eDiscovery SaaS provider matter to corporate knowledge management (Information Governance in the current colloquialism)? My impression has been that Recommind has completely refocused on chasing direct eDiscovery hosted review revenue. The sale of Decisiv email technology/team to NetDocuments in January certainly supports the market buzz that they had stopped investment in the IG market. My take is that this announcement speaks more to Recommind's long standing relationship with KMWorld than an active role in the IG market. My favorite quote: "Recommind's inclusion the past twelve years conveys the company's unwavering industry leadership in eDiscovery and information governance through product innovation," said Hugh McKellar, Editor-in-Chief, KMWorld.
2015-02-24 Rex Tomlinson 1948-2015 After more than a year, Rex Tomlinson lost his fight against leukemia on February 12, 2015. A rich lifetime of family, students and friends packed his memorial service and reception at the family home last week. Please join me in wishing Mikki Tomlinson and her family sympathy and condolences. Rex's obituary cannot convey the impact that his life had, but I wanted to share his philosophies of life: • Know your terrain • Pace yourself • Timing is everything "No whiney babies." - Rex "Wrecks" Tomlinson
2015-02-23 Wind/Escalate, More SaaS eDiscovery Providers Hit the Market As part of an interview request, I did a fast review of SaaS processing, hosting providers suitable for small firms looking for fixed price service. The market does not make this easy for you or for me to make sense of in the eDJ Matrix. The line between software, SaaS and professional services continues to blur as providers create web interfaces to upload/download ESI with hidden 3rd party tools and manual tech time behind the curtain. We originally differentiated between the traditional software and hosted service offerings with the assumption that the hosting providers were using a publicly available technology, example: Catalyst CR by Lighthouse eDiscovery listing indicates that Lighthouse manages/hosts the Catalyst CR platform. There are 115 eDJ Matrix SaaS technology offerings for the Small-Medium Business (SMB), but only 40 Managed Service SaaS offerings for the SMB. Frankly, this is because we only expanded the eDJ Matrix to cover service providers in our last year of analyst work. I started the eDJ Matrix to track and compare technologies many years ago and that is still the most mature data. Updating the Everlaw listing after my briefing last week was easy because they claimed to be free of 3rd party code. My check turned up two relatively new players in the SaaS eDiscovery market, Wind Legal and Escalate. Neither one gives enough hard information on their minimalist websites to confidently categorize them, but at least Wind discloses that they are a custom interface for Relativity.
2015-02-18 What Does Provider Accuracy Really Mean? I had one of those 'What the heck does this mean?' moments when I read my morning web feed. The headline is, "Electronic Discovery Leader Discovia Achieves 99/7% Accuracy Rate." Don't get me wrong, I am all about using metrics and measurements to improve process efficiency and quality. Discovia obviously has invested in automation, formal procedures and documentation (required for ISO 27001 certification). I see this kind of over-simplified marketing spin on metrics all the time since predictive coding (PC) became a selling point. Metrics and statistics can be used or abused to support many assertions. In the case of PC, I see providers using 'accuracy' to up-sell analytics without acknowledging the complex trade offs in precision and recall that impact the production size and composition. Attorneys have always known that if you want to produce 100% of the relevant collected documents, then forget relevance review and produce everything. Misunderstood or oversimplified metrics have become eDiscovery 'black magic' that reminds me of the early days when techno babble could be used to obfuscate human or process failures from a baffled bench. Getting back to translating this particular press release, let us look at the language:
2015-02-17 Another Appliance Cluttering Up Your eDiscovery Kitchen? When all else fails to get market traction, package your technology into a laptop-desktop-server form factor. That worked for Clearwell and clearly AccessData hopes that it will work for them. The old Summation did not need to be pre-installed or configured. But AD Summation is powered by MS SQL, not the old MS Access (Jet) database. Too be fair, the appliance is supported by a substantial chunk of training and support to help die-hard iBlaze users make the leap into modern eDiscovery technology. I get that an appliance tends to take the IT infrastructure arguments out of the picture, but that assumes that your IT group wants an exotic server in their data center or even has a physical data center any more. Nothing like finding a HP server sitting on a paralegal's desk when the client wants you to debug intermittent shut down issue. This happens with IT wants nothing to do with the new legal department solution. AD Summation checks almost all the requirement boxes for a corporate eDiscovery platform and the previously published pricing was very competitive. I just cannot recommend appliances because of all of the fire drills that I have been put through when neglected appliances hit their storage limits or otherwise have normal, expected server problems. They make great sense for global corporations with remote EU privacy reviews or government agencies who need a fire-and-forget solution for investigations.
2015-02-17 eDJ Brief: Everlaw - Plaintiff Driven eDiscovery Ever heard of them? I had not until they nicely persisted in trying to get on my schedule for LTNY. I was not able to accommodate them in New York, so we did a follow up briefing to get me up to speed. Everlaw unabashedly focuses tackling the traditional eDiscovery downstream from collections. They claim to be completely homegrown, but I have heard that too many times to give it credit for more than 'we are not reskinning a third party product'. They are one of the very few providers who acknowledge plaintiffs as a major part of their customer base. Plaintiff counsel needs good technology, but few have the budget to pay the market $/GB rates up front and most providers do not dabble in the contingency game for long. So how can cash strapped plaintiff firms afford Everlaw for matters like the Apple e-book antitrust matter or the GM ignition safety recall? With flat monthly pricing ranging from $20 down to $9 per GB, even David could process Goliath's production. I like seeing disruptive startups, even when I know that my service provider friends will feel the pain in their sale's quotas. It is good for the market. In my new-old leaner, meaner truth telling blog style, here are my take-away notes and some screen shots.
2015-02-13 10 Things Not to Do at a LegalTech Meeting When I was wearing my 'analyst' hat, LTNY briefings with providers had a consistent level of marketing fluff and dancing around my questions while they did their best to get free market insight. Now wearing my consulting hat again, I filled my LTNY 2015 time arranging client meetings with potential providers for active initiatives. I did my best to proactively weed out sale's demos on autopilot by sending providers three key bullet points and limiting meetings to 30 minutes. Call it 'best intentions' while underestimating the seductive power of the temptation to spiel. I found myself making notes on what NOT to do while presenting to a prospect instead of my usual key take-away bullets. So here are some of my slightly tongue-in-cheek pointers. If we did a meeting in NY, just assume that I am talking about someone else for the sake of your ego.
2015-02-02 Headed to LTNY 2015? See You There! I hope that you have managed to justify the time and cost to join the rest of our eDiscovery peers in chilly Manhattan. I got a couple notes from clients and friends flying yesterday or this morning saying that their flights were delayed, but so far my Houston to Newark hop shows on time. So what do you want or expect to gain from LTNY 2015? My clients are laser focused on short meetings with potential providers of services and technologies for short term projects. I have blown off my traditional ‘analyst briefings’ to support these meetings and keep the providers on target and off script. We have banned actual product demos at the show, as those can be done much more effectively onsite or via Webex. For every meeting, I have supplied a very narrow set of topics to make sure that the clients leave with enough information to include/exclude that provider when the projects hit the RFP stage. The years have disillusioned me with the value of canned ‘briefings’ where a senior exec delivers a scripted deck packed with feel good marketing bullet points. The best source of information is frequently other customers at the evening ‘social networking’ events. My goal this year is to connect new, old and future clients and peers together as possible. LTNY means many things to the eDiscovery world. Some consider it the industry’s largest job fair, with resumes hidden about every exhibit booth. Investors and cash flush companies see it as an opportunity to speed date potential acquisitions. eDiscovery marketing staff see LTNY as their annual ‘make or break’ for branding and splashy product releases. Whatever it means to you, make the most of it, stay warm and flag me down to say hello.
2015-01-29 Business Intelligence? Recommind Review Dashboards LTNY has become THE season for major product and pricing releases. My search bots and daily Google digests are blowing up with press releases ahead of the show. I doubt that Recommind’s divestiture of their Decisiv email analytics product/IP to NetDocuments caught the eye of most Axcelerate customers. So today’s big show stopping announcement leads with the headline: “Recommind Adds Enterprise-Grade Business Intelligence to Industry-Leading eDiscovery Platform”
2015-01-28 Ipro – eDiscovery Wallflower Finally Hitting Stride? The eDiscovery market was founded on stories of rapid growth and big sales. Usually these kinds of stories come from mid-tier service providers who land a couple clients with those ‘bet the company’ matters that have unlimited budgets and incredibly short deadlines. Sudden growth spurts can stress small or young companies as they try to balance overwhelming demand against capacity. It is nice to see one of the earliest eDiscovery companies, Ipro Tech, announce record sales in 2014 based in both reseller subscriptions (service providers using their products) and direct software sales. Unlike a young startup or regional provider, Ipro has a mature infrastructure that has been selling imaging and eDiscovery tech for over 25 years. I know because my very first big consulting gig was a technology makeover of an energy company back in the early 1990’s. Jim King, Ipro’s founder, sold me on an Ipro 1.5 image management suite running on SCO Unix (yep, that long ago) with actual laser platters. What makes this revenue growth announcement interesting to me is that it appears to be based displacement technology sales to some very large and savvy providers; DTI, LSI and DOE Legal. At LTNY 2013, DTI’s CEO, John Davenport, briefed me on the increased performance and volume capacity from their conversion to Nuix for processing. Service providers can make fickle technology partners in a market with steadily falling commoditized volume pricing and massive virtual/cloud infrastructure that makes it relatively easy to switch brands behind the scenes. The national deployment of Eclipse SE (desktop version) by the U.S. Department of Justice is a feather in Ipro’s cap just in time for LTNY. Now the growth numbers:
2015-01-28 Veritas is Back! This is a strange time in the eDiscovery/IG market. While the giant software companies seem to be spinning off or splitting up, I am starting to see successful niche players attract funding to acquire or develop broader targeted solutions. Symantec announced today that the standalone information management business will be called Veritas Technologies Corporation, resurrecting the venerable Veritas brand that was acquired in 2005. It will be interesting to see if the old/new Veritas management can create a development/sales culture more appropriate to the still nascent IG marketplace. On a personal note, Veritas acquired KVS’s Enterprise Vault back in August 2004 and I definitely recall the distinct cultural groups coming from the start-up, the data center and the security companies. Having just been recruited to bring in the corporate eDiscovery perspective, I did not really understand how different their product/sales approaches were at the time. Although I did not remain with Symantec long, I always valued the ‘Big Software’ product management experience and the amazing customers that broadened my perspective and inspired me to return to consulting as a problem solver. I never enjoyed the whole sales cycle, but I hope that this spin off will enable the newly minted Veritas reps to get back to selling value over portfolio.
2015-01-27 Collecting from the Cloud – eDiscovery Prerequisite? Last year’s eDJ Cloud adoption survey confirmed that our ‘early adopter’ consulting clients were not the only ones piloting or actively migrating email and files to Office 365™ and Google Vault™. My early research and the new Office 365 Collection category of the eDJ Matrix only found 3-4 products that could connect to and collect from Office 365 mailboxes and SharePoint sites. A year later that same category now shows 14 products with O365 connectors. I expected the ‘big box’ tech players like IBM, Symantec and Xerox to lead the integration efforts because their archiving offerings already had cloud infrastructure on their roadmaps. The old school forensic players, Guidance and Access Data, had to support the law enforcement collection requirements, so they would be right behind or ahead of the big boys. You know that a data source has become a ‘requirement’ rather than an option when the mid tier cloud Saas players such as @ Legal Discovery add Gmail™ and O365 to their remote collection capabilities.
2015-01-26 Exterro –SaaS Legal Holds for $65? Exterro announced their new Legal Hold Foundation SaaS on-demand offering with 30/90 days free service for 1/5 year subscriptions. Phrases like “Issue Legal Holds within minutes of signing up” and a per matter cost “as low as $65 per hold” lead me to believe that Exterro has set up a relatively automated onboarding system for small-to-medium sized customers. Not that many years ago, there were only two options for a centralized enterprise class legal hold platform, Exterro and Atlas. Whether hosted or on-premise, these offerings required dedicated infrastructure and commanded price that put them out of reach on the SMB market. Launched in December of 2009 by Zapproved, Legal Hold Pro filled that void and was quickly copied by other providers. Recently, eDJ Group has seen global clients increasingly considering SaaS subscriptions in RFP engagements. With some or all of their key enterprise ESI moving to Microsoft’s Office 365, Google Docs or hosted virtual data centers, legal stakeholders seem to have lost some of their hesitancy of putting key discovery systems into the cloud. This Exterro offering let’s them compete down the customer size ladder and lowers the threshold for adoption, just in time for LTNY. Now let’s see what Zapproved announces for the show.
2015-01-20 PC/TAR Coming to Office 365 Customers? Equivio Bought by Microsoft After the early letter of intent was announced last October, Microsoft today announced that it has acquired the small eDiscovery analytics company, Equivio. A couple perspective points to mull over. Equivio was the only analytics solution provider in my 2014 Analytics Adoption Report with clear IG case studies and formalized offerings for using machine learning to categorize unstructured data repositories. I found lots of providers who talked the talk, but only Equivio seemed committed to finding practical applications of their technology to tackle corporate ROT (redundant, outdated or trivial files). Office 365 adoption, migration and integrations seem to come up in every 2014 eDJ strategic consulting engagement. The acquisition announcement was made by Rajesh Jha, Microsoft Corporate Vice President of Outlook and Office 365. That tells me that Microsoft wants to add Equivio workflow and analytics to the new SharePoint eDiscovery Center. If Microsoft follows their normal adoption strategy, Office 365 customers may get the early Equivio functionality for NO cost for a time period. This is definitely a shot across the bow of the eDiscovery provider armada. My last point is the purchase price. Microsoft is not disclosing the final number, but the Wall Street Journal originally reported a possible $200 million offer and subsequent reports have the number in the $150-200 million range according to If you give Hoovers or Owler revenue estimates any weight (and that is always tricky with privately owned companies), Equivio could have just pulled off a 15x or greater multiple. This kind of profit may finally inspire the venture funds to get off the fence and put real money into this market for players who have a compelling IG-eDiscovery solution story.
2015-01-20 Indirect Evidence – Value and Risk Every Monday night, almost the weekly eDJ digest fires out to roughly 6,000 members. I expect to clean out 2-10 dead email addresses every Tuesday morning, not a bad rate for such a volatile industry. Occasionally I get a burst of dead addresses from a single company, which I interpret as a potential indicator of layoffs, downsizing or other M&A activity. As our industry increasingly uses analytics to spot changes in trends, chronological email gaps and other indirect evidence, we should remember the hard lessons learned by criminal prosecutors who have relied entirely on circumstantial evidence and inference. While bursts of bad addresses have previously enabled me spot layoffs by Recommind, I could not find anything on the web to explain the eight email addresses from that went bad in the last week. Maybe their email administrator finally killed off inactive accounts or they migrated to Office 365 (like most of my corporate clients) over the holiday weekend. It definitely got me thinking about how our focus on analytics, trend spotting and indirect evidence can lead us down the wrong path if we do not validate leads with hard, direct evidence.
2015-01-19 When the Court Steps In – Search Terms and Sworn Statements When the bench has had enough discovery bickering from the parties, it can ‘divide the baby’ and impose it’s own discovery plan. In the case of Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014), the court appears to have lost patience with both parties and decided that a set of 13 search terms run on ALL of the Plaintiff’s corporate ESI will retrieve actual responsive content. I have served as an expert and defense strategist in too many cases to pretend that anyone outside of the matter can actually determine whether these terms will be effective. So my perspective on the case should be taken as a more general commentary than a professional, informed opinion on this specific case. The K&L summary is a fast read and has a couple interesting points.
2015-01-14 LexisNexis – SaaS or Software? In this pre-LTNY season, we expect every software developer in the eDiscovery market to launch their major product releases for the year. LTNY long ago set the product release schedule for maximum customer awareness and impact. LexisNexis launched version 11 of CaseMap today, touting a familiar, modern user interface modeled on Microsoft® Office 2013 and a customizable user ribbon. It is 2015 folks. CaseMap first hit the market in 1998. Are basic usability features like new tool tips, customized user ribbon and report menu really worthy of a major product version release? LexisNexis has acquired some decent products over the years and this made me curious about what has happened with them after their acquisition. It takes quite a bit of digging to figure out some trends. My interpretation is that some products come in to LexisNexis with a strong development team and keep their momentum. Other eDiscovery products coast without significant investment. This CaseMap presentation is probably the best indicator of consistent product management that is able to produce a major version every 1-2 years. The rest of the product line seems to be on a much slower cycle.
2015-01-12 LTNY 2015 – IG Taking Over? Are you ready to brave the NY weather and traffic in three weeks? I am certainly not ready. As an analyst firm, eDJ started booking LTNY briefings as early as November. This year I am just now nailing down our consulting client’s priority providers for meetings and looking forward to escorting them through the exhibit hall and social events. As I reviewed this year’s sessions, exhibitors and sponsors, it quickly became apparent that eDJ Group was not the only one adapting to the changing market. I have written a lot about the provider consolidation trend as we track M&A announcements large and small. The chart of published 2008-2015 LTNY Exhibitor counts below shows a steady 10% decline since the 2013 peak. ALM will be the first to tell you that the website exhibitor list is never complete, but it is a consistent indicator of the number of providers who committed the $8,000+ for a booth. Yep, our beloved, bloated, frozen eDiscovery job faire is changing. Just look at the Tuesday session tracks below and realize that only 2 of 8 tracks directly address eDiscovery. Information Governance is slowly taking a dominant role in the sales cycle, which is reflected by the themes, topics and speakers that providers select for the sessions that they fund.
2015-01-07 Recommind Out of the IG Market? Recommind continues to transform itself from a seller of traditional enterprise analytics software for eDiscovery and InfoGov into a pure-play SaaS cloud provider with the sale of the Decisiv Email technology and development team to NetDocuments. The Decisiv email filing recommendation functionality will give NetDocuments a strong differentiator after they have managed to get it integrated to their cloud infrastructure. I am curious to know how the Decisiv core technology relates to Recommind’s Axcelerate predictive coding technology and infamous patents. Will this sale have any impact on legacy Recommind Axcelerate installations? I doubt it. But on-premise customers should carefully watch to see if Recommind makes yet another major go-to-market about face. My wild guess is that investors from the last round of funding ($15M in Q3 2013) might have pushed for some kind of return on a lagging line of business.
2015-01-06 A New eDiscovery Market Quadrant, Just Like the Old? eDJ Comment As a consumer and former creator of these over-simplified market mash-ups, I am always fascinated by how analysts pick the ‘players’ to profile. Radicati Group’s new eDiscovery Market Quadrant 2014 report features 13 providers with one common trait. Each and every one of them has a strong analyt/marketing budget and has a track record of spending it to make sure that they are well represented. I am not commenting on the content of Sara Radicati’s research or conclusions. Rather I am calling out a larger problem with the defacto ‘pay for play’ system that dominates market research. See current and past lawsuits against Gartner, Inc. that spell out the inherent ethical conflicts in doing for profit research on providers who are actively paying clients. I am frankly happy to be out of the analyst game and back to pure consulting. Most analysts work hard to fend off provider marketing pressure and deliver good work product, especially early ‘pure’ researchers such as John Bace. In my opinion, market analysts today are all too often isolated from real world customers and innovative startups in a classic ‘mushroom management’ trap. So be an educated, cynical consumer and read these mystical diagrams and reports carefully to extract the valuable nuggets.
2015-01-06 eDiscovery Blogs, Are They Worth Reading? I don’t know about your 2014, but it certainly presented me with lots of challenges. The holidays gave me a chance to think about eDJ, our renewed consulting practice and our goals from the site. Barry Murphy and I started blogging on the eDiscovery Journal during the 2008-2009 economic downturn in response to a blogosphere dominated by ‘experts’ with thinly disguised marketing agendas. Business was dead and we both wanted to ‘speak truth’ to eDiscovery veterans and neophytes alike. We founded the eDJ Group as a niche eDiscovery market analyst firm with the intent to sell research licenses and reports directly to corporations and law firms. Last year, we realized that our target audience needed practical strategic consulting more than pure market research, a reality confirmed by other former analysts who have left the market. The demands from corporate and law firm clients have cut into our time devoted to our ‘perspective blogs’ and forced me to re-examine whether they are worth the loss in billable time. My conclusion is that the market needs independent, expert perspective more than ever in a format that is easy to consume and fosters civil debate. So we will be playing with the format and content while opening the eDJ Group site to broader perspectives. Expect shorter, more frequent comments from eDJ and others, especially through the LTNY 2015 product release cycle. We solicit your perspectives, topic request and feedback as we work out how to keep valuable and relevant in our new/old role. Welcome to 2015 and I hope to see you all in New York!
2014-12-29 eDiscovery 2014, an eDJ Retrospective New Years and the rising tide of LTNY briefing requests tell me that it is a good time to look back at 2014. The year included a complete transformation of the eDJ Group from a niche market analyst team into a much smaller strategic consulting team. Mikki and I continue to conduct independent market research, but it is now driven by active client engagements and requests. I at least wanted to comment on several themes from my 2014 market overview decks. Most of these were created for corporate, VC or provider clients trying to better understand the rapidly changing market drivers.
2014-12-15 Are You Still Paying Hosting Charges? Amazon and Microsoft cloud storage and servers have driven the Total Cost of Ownership (TCO) for online data storage down into the 10-15¢/GB/month range depending on whether you need a dedicated, encrypted appliance or other special security for your sensitive data. The bottom line is that this has eDJ Group clients challenging traditional $15-30/GB/month hosting fee proposals. Why pay 100x the market rate for a provider or law firm with a dedicated data center? The response to my fast survey on the pro-portion of evidence vs. collection size has been great (lots of folks wanting to download the 2014 Analytics Adoption Report), so with Mikki’s 2014 legal hold surveys wrapping up, I have created two fast surveys (consumer/provider) with a couple simple questions to get some insight into the changing hosting fee market. For more than a decade, monthly $/GB hosting fees have provided a surprisingly large portion of provider revenue and profit. AWS and Azure have challenged that model and we all want to understand how customer attitudes have changed. What is a fair price for the expertise and liability of managing cloud storage for discovery collections?
2014-11-30 More 2014 eDiscovery Survey Results Kroll just released conclusions and limited data from a short eDiscovery survey covering trends such as Predictive Coding (PC/TAR) use, Social Media, BYOD, the ‘Internet of Things’ and Security. With over 550 law firm and corporate respondents, Kroll has certainly managed to get a statistically significant sampling, though they were the first to acknowledge that their questions were very basic data points. I just wish that they would publish the raw questions and response data so that readers could form their own interpretations with full confidence. I did find a couple of items interesting in light of my own recent research on analytic adoption. Without the full context/text of the original questions and response options we can only make limited observations. My interviews quickly pointed out problems with my own Analytic Adoption survey questions that I dissected in a blog.
2014-11-17 Analytics Adoption: Processing vs. Review One of the fun parts about publishing a new market perspective report is the hours of calls where I get to see what resonated with colleagues like Michael Simon and others. I don’t expect critical readers to agree with all of my conclusions. In fact, I enjoy the counterpoints as much as the congratulations after a long research cycle. One point keeps coming up over and over again that is worth extracting from my 26 page report. The report calls out pre-review processing and organization as the current market sweet spot for analytics, mainly because of the strong resistance to actual machine learning (PC/TAR) review methodologies reported in my expert interviews. So is there a real difference between a tech filtering collections based on clustered concepts or rules and an attorney training a predictive coding system? The market definitely sees them differently. Counsel rarely wrangle over exclusion of lunch notices, FaceBook messages or other non-relevant categories when they are even disclosed. Why not?
2014-11-10 2014 Analytic Adoption Report - A Last After almost six months I have finally wrapped up my research report on analytic adoption in the eDiscovery and Information Governance markets. The report covers two surveys, twenty in depth interviews and focus briefings with eleven top technology providers. I started this research because I could not find any credible information that did not originate with or was sponsored by analytic providers. Most of my interviews went over an hour and revealed surprising resistance to reliance on machine-learning PC/TAR review systems.
2014-10-20 Key Evidence vs. Discovery Collection Volumes Craig Ball raised a good point in his latest blog, Does the evidence we use derive from discovery?. Where he seems to be questioning the value of the entire discovery/eDiscovery process, I am more interested in getting some ad hoc metrics from you about what portion of preserved or collected paper and ESI could be considered actual ‘evidence’. My recollection from my earliest scanned paper productions and trials back in the 1990’s was that our exhibits always seemed to boil down to a single box (roughly 3,000 pages). It did not seem to matter how many boxes we scanned, reviewed and coded, the trial team always came up with a single box of printed exhibits to take to trial. Extensive depositions, expert analysis or third party productions would throw off this rule, but my impression was that the volume of key exhibits related more to the number of significant issues and the volume of documents that lead counsel was comfortable juggling in his/her head. I do remember a brilliant regulatory defense counsel from Baker Botts who had the ability to keep hundreds of trader email and voice conversations on instant recall as a good exception to the one box rule. So how does that ‘one box’ rule hold up 20+ years later?
2014-10-14 Software Giants Repositioning Around IG Market My apologies for anyone who could not access the site last week. The legacy WordPress site was under attack and it took us quite a while to track down the resource drain. It was a big week for eDiscovery related M&A announcements. In brief; Microsoft is buying Equivio, Symantec is splitting, HP is splitting and Epiq facing a potential proxy fight. What’s next? Will IBM spin off Watson after pumping so much into it? You could say that MSFT is following their usual conservative go-to-market strategy by allowing smaller players innovate and take the risks of ‘jumping the maturity gap’. Symantec, HP and IBM all made eDiscovery acquisitions 2-4 years back. From my personal perspective, the acquired eDiscovery products (Clearwell, Autonomy and PSS Atlas/StoredIQ) all lost brand awareness and development momentum while being integrated into larger product portfolios. The Symantec/HP splits seem to buck the market consolidation trend until you look closer at the dividing lines drawn within each technology collective (everyone fears the Borg).
2014-09-30 A Look at Yammer Collection It is the middle of discovery interviews and you are going though your interview form checking off data sources with a key witness. You get to the final question, “Are there any other data sources, communication or collaboration systems that might be relevant to this matter?” You hold your breath, hoping that you can avoid collection of texts, Lync or other esoteric data sources that will blow up your processing and review budget estimates. “Well, the team started using Yammer back with Microsoft bought it. I think that we have a topic on that contract and I know that we have had several conversations about those pricing spreadsheets.” Ugh. Yammer? You take notes, get login credentials and the admins name. You have no idea what the system contains, how it is accessed or what you will get when you shoot the export request over to the Yammer administrator. Here is what it might look like…
2014-09-22 Why NOT Use PC-TAR? Mike Simon’s recent blogs really resonate with my take-aways from all of my interviews and survey results. The market is over-saturated with promises like “Review only 5,000 items!” and “Save 75% of review cost!” Although all of my cutting edge corporate eDiscovery interviewees had used some kind of machine learning in a few cases, none felt that PC-TAR was appropriate for ALL of matters. The dominant reason for using PC-TAR was to meet impossible deadlines or overwhelming volumes of raw ESI. PC-TAR was not considered easier or cheaper when you factored in the cost of the up front analytic processing ($130-200/GB extra), technical experts to manage the process and the cost to negotiate the protocol with the opposing party. So why did they go through all that trouble if they did not anticipate real savings? Because they did not have a choice. Many cited very tight time frames in recent regulatory requests. Others talked about being ‘dump trucked’ by huge opposing productions with bare weeks before depositions. My law firm interviews revealed a struggle between conservative partners and progressive litigation support evangelists. The eDiscovery providers gave me explicit descriptions of conversations with law firm partners with quotes like, “Your ROI for this stuff comes out of my pocket!” So here are my Top Ten Reasons Why NOT PC-TAR:
2014-09-04 Non-business ESI Under Hold – BYOD Privacy vs. Preservation Management of traditional business information assets was relatively straight forward when the company owned and supplied everything but the phone service to employees. As we move into a cloud based, Bring Your Own Everything world of remote employees and mobile personal access, the conservative custodial legal hold approach throws such a wide net that it will certainly catch personal communications and other ESI. For smaller U.S. companies, this has driven up discovery costs without causing much concern over the inadvertent trampling of non-existent employee privacy rights. Global corporations are wrestling with segregating ESI from countries with serious civil and even criminal penalties for the same cavalier email harvesting, especially in the European Union. The June 25, 2014 decision by the Supreme Court of the United States (No. 13-132) soundly affirmed the expectation of privacy on mobile devices against law enforcement inspection without a search warrant. While this decision applies only to criminal ‘discovery’, a non-attorney interpretation can easily see potential impact for corporate discovery dragnets. Now that Microsoft’s new eDiscovery Center and most enterprise archives support ‘hold in place’ based on legal hold searches, custodians may lose the ability to ‘clean up’ their personal email and files that have accidentally been archived or migrated to SharePoint. So what can corporate legal and IT departments do when custodial privacy rights demand that their personal ESI be removed or excluded?
2014-08-19 PC-TAR, Oversold and Under Adopted? Between my Analytic Adoption surveys and my 15+ extended interviews with cutting edge litsupport, attorneys and providers actively using analytics, the vast majority of consumers and cases are not yet ready for to use PC-TAR to make relevance decisions on productions. This goes against all everything that we have seen at Legal Tech and every other marketing channel in our industry. I am not questioning the potential effectiveness of the technology or the expertise of the subject matter experts that seem to be required to manage these machine learning reviews, whether active, passive or just plain black box driven. Instead, I asked my survey respondents to tell me about what percentage of cases they actively used analytics in. The initial numbers seemed quite encouraging (as seen below) until I started my live interviews. That was when I rediscovered the old axioms about Garbage In Garbage Out (GIGO) and Lies, Damn Lies and Statistics. Remember, this is my own data I am talking about.
2014-08-11 Yammer eDiscovery? In 2012 Microsoft acquired Yammer, one of the top enterprise collaboration platforms. Think of it as business Facebook with document and conversation sharing functionality. Enterprise class Office 365 customers got the first Yammer integration back in November 2013 and Microsoft just extended Yammer to midsized business and education plans. A sad fact of innovation is that businesses can and will adopt new technology well before the corporate caretakers (Legal, Compliance & Security) have the tools to handle the new source. Last year, I spent a lot of time researching discovery of ESI from mobile devices from an enterprise perspective. The primary goal of many mobile discovery strategies is to minimize the unique ESI stored on those devices to make them essentially irrelevant to typical civil litigation. As much as I would love to use that same ‘duplicate source’ exclusion strategy on files uploaded to Yammer, the broad collaboration functions add critical context that will clearly be relevant to some matters if they are allowed to persist for anything beyond a few months. So have your users found Yammer and started using it with IT’s blessing or on their own? If you have opted for the enterprise system with limited administrative functions, have you had to preserve or collect from it?
2014-07-23 What Flavor of TAR is Right for You? My recent research and surveys have made it abundantly clear that ‘Analytics’ means many different things to the broad eDiscovery market. Even terms like Predictive Coding or Machine Learning can involve an infinite number of combinations of technologies, sampling strategies, training iterations and much more. Every provider seems to have a different take on how to leverage analytics in review. So what flavor of PC/TAR is right for you? For most consumers, the first priority is to differentiate between the major approaches that are offered as alternatives to traditional unorganized linear review. Here is my simplistic break down based on my active research, though I am excluding most pre-review culling methods.
2014-07-14 New Analytics Features in eDJ Matrix As I have been wrapping up my briefings with analytics providers and hearing them describe their ‘differentiating features’, I have been expanding the key features to support the new market categories for the eDJ Matrix. The surveys will run for another week or two, so if you want to get access to the direct results or the report, just log in and answer seven quick questions for Participating Member access when they are published. I have conducted roughly 15 focus interviews with active consumers and service providers. This is where you learn the really interesting bits. I have another week or so of briefings and demos of the latest technology releases. I will try to put out eDJ Briefs on these sessions, but expect them to be completely focused around user workflows and differentiating functions. There could be more analytic features if someone brings me a real game changer, but I feel pretty solid on the coverage when mapped against my new buying categories. That’s right. My intent is to only create categories that align with the way real people are consuming this technology, instead of the way that marketers seem to think that you should buy it.
2014-07-10 BYOD - Selling the Keys to the Corporate Kingdom? The overwhelming majority of corporations allow users to connect their personal smart phones to access work email and apps, called a Bring Your Own Device or BYOD policy. As I was publishing the results of my 2014 Mobile Discovery Survey, I ran across a rather inflammatory blog by security software company Avast! that detailed all the personal information retrieved from 20 Android phones that users had sold on eBay. I have heard stories from several security specialists concerning overseas hackers who set up web sites to troll for used phones from users with email addresses that match to company domains. I have never been able to corroborate those stories with any published stories or studies, but I long since updated client termination and BYOD policies and practices to make sure that outdated phones were wiped properly. The crux of Avast!’s bit of fear mongering is that a simple factory reset or even a remote ‘wipe’ will NOT actually delete or overwrite data on an Android OS phone. Ars Technica has a nice plain language explanation though some of their information was a bit out of date. The key point is that without encrypting the phones, the information is still there and can be recovered with forensic or even simple commercial software. Given that 21.4% of survey respondents (N=28) rely on users to manage mobile device security and access, this does raise a serious concern for corporations.
2014-06-24 eDiscovery Analytics in the Trenches With over 50 survey responses and my first round of focus interviews under my belt, some trends are beginning to surface about how and why consumers and providers use advanced analytics. Early feedback and product briefings led me to launch separate consumer/provider surveys to better understand the different markets. The initial survey results have validated that decision, while I have tried to keep the 7 questions as close as possible to enable a merged market overview. The surveys will stay up for a couple more weeks while I go into another round of focus interviews. I target interviews for 15-30 minutes, but these keep running long with excellent insight from cutting edge practitioners. Right off the bat you can see below that providers and their customers have very different perceptions of the primary usage case for analytics.
2014-06-11 New Study Mired in the TAR Pit? The worlds of academic research and eDiscovery do not collide often enough. All too many practitioners assumed that first generation eDiscovery processing, search and collection technology were accurate and effective. I will stay off of my soap box on validation testing, but my long term readers know my passion for defensible, transparent process and tools. All too many ‘academic white papers’ in eDiscovery are funded from provider marketing budgets and even academic organizations such as the governmental Text Retrieval Conference (TREC) can have their results ‘reinterpreted’ by spin doctors to sell products to consumers desperate for reassurance. The hype cycle around Predictive Coding/Technology Assisted Review (PC/TAR) has focused around court acceptance and actual review cost savings. The last couple weeks have seen a bit of blogging kerfuffle over the conclusions, methods and implications of the new study by Gordon Cormack and Maura Grossman, “Evaluation of Machine-Learning Protocols for Technology-Assisted-Review in Electronic Discovery”. Pioneering analytics guru Herbert L. Roitblat of OrcaTec has published two blogs (first and second links) critical of the study and its conclusions. As much as I love a spirited debate and have my own history of ‘speaking truth’ in the public forum, I can’t help wondering if this tussle over Continuous Active Learning (CAL) vs. Simple Active Learning (SAL) has lost view of the forest while looking for the tallest tree in it.
2014-06-05 eDJ Brief: C2C Systems Overview: This briefing focused more on C2C’s strategic vision of ‘Pragmatic Information Management’ than my usual deep dive into a new release or technical foundations. If you have missed C2C, they provide enterprise software to manage Microsoft email, file and messaging capacity, discovery, retention and compliance needs of the mid market. They entered with email archiving market with ArchiveOne back in 2003. C2C’s value proposition is to enable customers to manage their unstructured data across live systems and archives from one interface. That now includes Office 365 email, but no mention of SharePoint or other non-email cloud data. They challenge the value of ‘integrated platforms’ for mid-market companies as being too expensive, complicated and difficult to implement. C2C seems on course to deliver non-disruptive tools for IT to tackle specific pain points such as migrations, defensible deletion rules and federated search/retrieval across unstructured data on premise and in the cloud.
2014-05-19 eDJ Brief: CAAT-Content Analyst Analytical Technology Content Analyst is one of a very small number of companies supply the OEM analytics embedded in the majority of early case assessment, review and processing platforms. Content Analyst has expanded on its original Latent Semantic Indexing (LSI) system with many additional text analytics algorithms. The full suite now spans conceptual search, dynamic clustering, auto-categorization, email threading, text near-duplicate identification, language identification and automatic summarization. As a consumer, you have only seen the CAAT functionality exposed through their partners’ interfaces. Most CAAT partners such as kCura Relativity, iPro Eclipse, iConect Xera and Mindseye TunnelVision only leverage selected analytics capabilities. Founded in 2004, Content Analyst has 13 patents and is one of the earliest analytic engines designed for integration into discovery products.
2014-05-12 eDJ Brief: Xera Launched in 2012, Xera is a web-based review platform available as a direct purchase or through their hosting partners. iConect continues to invest in user accessibility, mature workflow and new partner integrations for their HTML5 web interface. What does all that mean? The iConect team is betting that the market wants a dedicated review point product accessible by any level of user from any device. This bucks the ‘Platform’ trend that has had providers bolting processing, collections and legal hold code onto their review programs. Clearwell started this ‘feature sprawl’ race to the mythical Unified eDiscovery Platform more than five years back, but the market still seems to gravitate to ‘built for purpose’ tools that have feature depth as well as coverage breadth. Thus new functionality added to Xera such as the free iView metrics visualization module, customizable dashboard tiles, seven new localized languages (including Russian, Japanese and German) and classification by drag/drop.
2014-05-05 Who Consumes Analytics Anyway? While working on how to define the analytics market space, I quickly realized that the consumers of analytics comprised many different market segments with unique pain points, feature requirements and even consumption models. Marketing and sales directors abhor a complex market space because of the challenges it presents to create a simple, clean brand and value proposition for their offerings. Thus the annual cycle of eDiscovery buzzwords splashed across LTNY booth banners and LTN ads. However, oversimplification and high pressure sales of the latest PC/TAR/IG/LSI/NLP variation can easily lead to buyer’s remorse. Thus the client requests to break down the analytics market(s) and players into something easier to understand. Take the eDJ analytic adoption survey to give me some real metrics to share. That brings us back to who is actually buying and using these new technologies. I am breaking the buyers into three initial segments: Corporate, Firm and Provider.
2014-04-28 Analytics – How Are You Using Them? Predictive Coding (PC), Technology Assisted Review (TAR), Auto Categorization, Social Networking, Chronological Analysis and now even Topic Modeling are all based on data engines that identify and extract patterns, exceptions and visualizations from large collections of relatively similar data sources. The market has long lumped all of these usage cases under the Analytics label, starting back with the earliest enhanced review offerings from Attenex and Stratify back in 2001 and 2006 respectively. Jason R. Baron and Bennett B. Borden wrote a nice law review article that lays out a good perspective on how analytics have crept into legal practice. That has clients asking eDJ to filter out the marketing buzz and tell them how other law firms and corporations are REALLY using these new toys. Thus we have created a new survey to get some solid metrics to share with our consulting clients and all of you Participating Members who have taken a survey. The goal of this research cycle is to understand how analytics are used, consumed, delivered and their benefits. Beyond the survey, I will be conducting focus interviews over the next month to get your perspective from the trenches. So please shoot me an email if you would be willing to share your experiences, successes and challenges with cutting edge analytics.
2014-04-21 Upstream eDiscovery = Info Governance The corporate perspective on eDiscovery has slowly matured from ad hoc reaction into the desire to proactively manage discovery costs through proactive business processes. This evolution to a mature Information Governance lifecycle has been at the heart of my consulting practice. It makes me happy to see BigLaw firms recognize the market opportunity and launch practice areas focusing on the upstream data lifecycle. We need more counsel who have a firm foundation in eDiscovery and who are comfortable with technology to guide clients. eDJ consultants are not practicing attorneys and we frequently work with client’s retained counsel on data maps, preservation systems, migrations and other enterprise initiatives. It is rare to find a litigator who ‘gets’ enterprise infrastructure and the complexities of Big Data systems. They are out there and it looks like law firms are starting to recognize their expertise by launching new practice areas focused on information governance, compliance and eDiscovery for the enterprise. Several calls, press releases and a quick Google helped confirm this trend.
2014-04-14 Ongoing eDJ Polls – Snap Insight While reviewing the results of ongoing eDJ polls, I spotted a couple interesting items that I wanted to share and discuss. First of all, thank you for taking our short polls for premium access. The new system is working great and the number of Participating members is going up every week. Validated non-provider members can take a 5 question poll to get immediate access to research reports, survey results, eDJ Notes and more. We are about ready to close down the Cloud Adoption poll and should have a new Analytic Adoption poll up in the next week or so. Here are insights from our 3 active polls:
2014-04-07 eDJ Take on Proposed FRCP Rule 37(e) – Loss of ESI Under Preservation Ever since the 2006 Federal Rules of Civil Procedure were amended to address Electronically Stored Information as potential evidence, practitioners have struggled to interpret them. The public comment period closed February 18, 2014 and latest round of changes to the potential rules have been published in the Agenda Book for the Advisory Committee meeting to be held on April 10-11, 2014 in Portland, OR. Now these proposed rules cover a lot of ground, so I am hammering on the FRCP 37(e) changes to understand their potential impact from my corporate client perspective. Overall, I feel that the proposed changes do a good job of clarifying the court’s job and their curative measures available for ESI loss. However, I am not sure that these rules will actually accomplish that stated goals of reducing the over-preservation burden on litigants. Reducing the fear of ‘sanctions’ does little to clear the ‘fog of war’ that envelopes most companies trying to scope and enact reasonable litigation holds. I hoped that the proposed rules would address the potential reliance on new analytic technologies to develop selective preservation criteria, but the committee kept the guidance on principles rather than concrete prescriptives.
2014-04-02 Migrating ESI on Legal Hold In the age of Cloud services and agile technologies leapfrogging each other, Electronically Stored Information (ESI) has become increasingly mobile. But what does the Legal department do when IT wants to migrate ESI on hold to the latest and greatest platform? The economic, accessibility and management advantages to Cloud systems such as Office 365 and Google docs have almost every CIO considering or piloting them. Legal should participate in the solution, rather than resisting this wave of change. There are many different strategies for meeting the company’s preservation obligations while migrating or transforming email, files and other ESI on hold.
2014-03-27 Turning on a Dime - eDJ Group is Here to Stay We have made no secret of fact that the eDJ Group has stepped out of the analyst arena and refocused our much leaner team on strategic corporate consulting. We bid a fond farewell to Barry Murphy in his new role with X1. Although we have worked hard to keep our clients, readers and professional network up to date with the changes, but the ‘Telephone Game’ can mangle even the clearest message when it is passed second hand. Twice this week I received job inquiries because, “We heard that eDJ was shutting down.” I appreciate the inquiries, but eDJ Group is here to stay, albeit playing a different role in the market place. I wanted to take a moment to spell out the new eDJ Group in simple terms.
2014-03-20 Office 365 – The Good, The Bad and the Unusual The Houston Association of Litigation Support Managers (HALSM) invited me to speak yesterday on a topic of my choice. Discovery on Office 365 has dominated recent inquiries and engagements for the eDJ team, so I decided to condense my blogs, research, testing and accumulated Office 365 information into an hour presentation. We almost made that 60 minute mark by moving at full speed, but I was happy to detour for all the great questions. Every week brings a new twist as corporations are enticed to migrate their users and ESI to the Cloud based on the potential savings in cost, overhead and infrastructure. The topic definitely resonated with the HALSM membership based on the high attendance, good questions and willingness to run a bit over the normal lunch hour. This material will eventually end up in one or more research reports, but I thought that I would share a couple of the better discussion points.
2014-03-14 Calling for Your BEST/WORST Stupid eDiscovery War Stories! Attendance at the Houston bDiscovery gathering fluctuates wildly based on weather, spring break and many other factors. This evenings gathering was small, but rich in experience with a wild variety of clients, partners and employers. As happens so often at LTNY or anywhere eDiscovery professionals and alcohol mix, the conversation quickly devolves into carefully sanitized stories of bonehead mistakes, amazing bills, print parties, Luddite partners, cookie bearing copy reps and more. eDiscovery old-timers know better than to name names or give any specific details that could even hint at the identities of the parties, but these stories are more than entertainment. They comprise our tribal wisdom. They can educate the next generation of eDiscovery professionals so that they are not doomed to repeat the same mistakes we made in the 1990’s and too many of our clients continue to make today. Somewhere around the third round of stories/drinks (take your pick), my long time friend Joni Miller at DiscoverReady remarked, “Oh, the stories we could tell…” That inspired me to solicit your stories with a pledge to render them anonymous and compile them into fictional comedic tales for our mutual edutrainment (yes, I made that word up. In fact I did it during a dot-com pitch session once upon a time). Below find a story that I will neither attribute nor claim other than the obfuscation and deliberate exaggeration for effect. ***The following completely fictional. EVERYTHING has been changed to protect the guilty***
2014-03-03 When Your Key Corporate Custodian Walks One of my favorite client’s just put in her notice and that got me thinking about managing legal holds with our increasingly mobile workforce. We all know those key custodians who are the “go to” person when you need to understand the history and critical details on ESI data sources. These ‘system ’ or ‘perpetual’ custodians are named in almost every legal hold. Their departure can have a disproportionate impact on discovery events unless they can properly document and transfer knowledge prior to their departure. It took me a solid month to create the ‘discovery bible’ documenting process and sources when I left my last position as the ‘corporate custodian of record’ back in 2006. We had a contract in place to cover any future calls, affidavits or testimony that was reviewed and approved by Symantec’s legal department. That gave my old team confidence that they could call if stuck or needing confirmation. Not every custodian has that flexibility and many do not depart on friendly terms. So how can you mitigate the potential impact of legal hold custodian departures when you know that they are going to happen?
2013-07-03 Will Dodd-Frank Requirements Drive Mobile eDiscovery? Preparations for our eDJ webinar on the Dodd-Frank Act’s impact on IT next Thursday pushed me to dig further into the new CFTC record keeping requirements covering mobile devices, social media and mobile phone calls from the perspective of our guest legal speakers. As analysts, we tend to prioritize the technical, practical and market implications of new requirements over their potential strategic litigation impact. We are lucky enough to have former U.S. Magistrate Ronald Hedges and Pillsbury Winthrop Shaw Pittman’s eDiscovery Partner David Stanton to add their perspective to our webinar discussion. Although the new rules only cover communications directly relating to pre-execution of trades (see rule language below), they will require market participants to invest in capture, retention and retrieval capabilities that are clearly relevant to corporate eDiscovery obligations. This may result in a new wave of burden and accessibility arguments before the bench. Essentially, Dodd-Frank ‘could’ blow the lid off of the BYOD/cloud Pandora’s box. Too many litigants rely on a Don’t-Ask-For-Mine quid pro quo strategy to ignore these new, complicated data sources. When global corporate hedge and pension management exceeds the end-user exception threshold, corporate legal departments may suddenly find that their custodian’s mobile phones, IM and even phone calls migrate to active, accessible sources of ESI that must be preserved and collected. My experience is that discovery trends and expectations follow regulators and the big boys.
2013-06-17 Will the Cloud Compound the Dark Data Syndrome? My definition of Dark Data differs from Wikipedia: “Data relevant to a discovery request that is either never disclosed or is produced without contextual information that could affect the interpretation of that data.” My first interview on cloud sources as discovery targets turned up surprising frustration from the savvy eDiscovery Counsel for a national plaintiffs firm. I expected to hear about immature collection capabilities and defendant’s who struggled to preserve or collect from Office 365, SalesForce or other cloud systems. I did not expect that requesting parties might be completely in the dark about where a production comes from or how it was collected. eDJ’s consultants have had too many recent engagements supporting the evaluation or migration of email and files to the cloud to doubt the trend. Microsoft has been touting the rapid adoption of Office 365 with corporate and public sector verticals. Many corporations seem to have moved critical ESI to the cloud without a clear plan to meet eDiscovery and Information Governance requirements.
2013-06-04 You Can’t Run Away from Dodd-Frank When a client recently asked my opinion of the impact of the Dodd-Frank Act on corporate IT, I had to do that thing that consultants hate and admit that I had not even considered it. I knew that the ‘Wall Street Reform and Consumer Act’ was passed in reaction to the 2008 economic downturn, but the new requirements that I had researched all applied to my financial clients; banks, hedge funds, broker dealers or others already regulated by the SEC or CFTC. Then Dodd-Frank came up in an analyst briefing with a provider who was eager to burn analyst credits to get our perspective. That was enough for Babs Deacon and I to subject ourselves to large chunks of the 2,300 page law signed July 21, 2010 as well as an incredible array of secondary analysis scattered amongst the 13.3 million Google hits. The lack of blogs, reports or articles that actually applied to non-financial corporate IT gave the initial impression that the majority of public corporations were off the hook. Then I found an SEC statement that described the Act as “a framework that will support an entirely new regulatory regime”.
2013-05-16 Federated Search – Behind the Covers Businesses of all sizes are migrating files from unstructured file shares to onsite and cloud based content collaboration systems at a remarkable rate. Microsoft’s SharePoint 2010 and 2013 are finally seeing rapid adoption and eDJ working analysts have seen increasing inquiries on managing eDiscovery and compliance risks in these new environments. Almost all of these new ESI repositories come with search indexes to support the end user experience and to satisfy new information governance requirements like the 2010 Dodd-Frank Act. We will be publishing a research report on the IT impact of the new ‘corporate transparency’ mandates shortly, but I wanted to explore the risks and benefits of leveraging the ‘in-place’ search indexes.
2013-05-07 The First Step - Know Your Data I cannot remember how many consulting clients have asked me to review their retention policy/schedule without having any hard data on their unstructured digital landfills. Typical corporate records manager, “We’ve been working on this retention schedule for over a year. We have over a hundred categories identified. We just need your help defining our software requirements and defining the user process.” Even well intentioned clients frequently get the cart before the horse. Tell me about your data sources and the content profiles before we try to determine whether an archive, content management or other system is appropriate to enforce retention policies. Last week I participated in a webinar with Jim McGann of Index Engines on Data Profiling to control risk and cost. Index Engines has had onsite and service offerings for relatively low cost inventory/profiling of tape collections, shares, SharePoint and more when compared to typical eDiscovery processing costs. We are hearing the big data players like Symantec, IBM and HP-Autonomy push the business intelligence message, but that CIO-level pitch can fly right over the heads of legal, records management and IT admins who are struggling with the day-to-day data glut. So how can data profiling drain these corporate backwater data swamps?
2013-04-23 Symantec Vision - Buckles Perspectives on Symantec 4.0 It has been over six years since I left Symantec’s product management team, but that has not kept me from the annual Symantec Vision conference. This year’s theme was the massive “Symantec 4.0” reorganization and strategic overhaul initiated this January by the new CEO Steve Bennett. In the keynote, Bennett acknowledged that Symantec has great individual business lines and assets, but has fallen short of customer’s needs for integrated solutions. I won’t even try to cover all of the changes in leadership, business units, products and road maps. Instead, I will stick to my perspective on the potential eDiscovery impact for current or prospective Symantec customers. Keep in mind that Symantec has never been known for fast and nimble development cycles. I believe that Symantec 4.0 needs to deliver an initial round of functional, coherent offerings in the next six to nine months convince a skeptical market that the changes are working.
2013-04-11 Lessons From My First Bootcamp
2013-03-05 Losing Your iPhone While Under Hold – Sanction Bingo
2013-02-19 Managing eDiscovery Momentum – It Takes Time to Turn the Ship
2013-02-06 LTNY 2013 – The Aftermath According to Buckles
2013-01-23 LTNY 2013 Survival Guide
2013-01-15 Meet the New eDiscovery Matrix
2012-12-06 Go Buy eDiscovery!
2012-11-19 Not Your Grandfather’s Restoration
2012-11-14 Cloud Providers and the Fog of War
2012-11-05 Outsourcing eDiscovery – Firms vs. Corporate
2012-10-30 SharePoint Migrations – The IT Bulldozer
2012-10-16 Legal Holds in Office 365
2012-10-03 Emerging Breed of eDiscovery Conferences
2012-09-12 Are You Playing the eDiscovery Telephone Game? The inFusion 12 conference next week has me thinking about the differences between the platform and point product approaches to in house corporate eDiscovery. Preparing slides and panelist questions for my sessions brought one challenge of the traditional eDiscovery relay race into focus for me. The obvious performance and strategic advantages to a centralized corporate platform include early direct access to ESI in the wild, single instance collection storage, shared indexes, cross matter designations and universal chain of custody. Recouping these advantages usually requires a significant investment in the classic maturity triad; people, process and technology. ILTA booth displays clearly demonstrated that providers are investing in workflow and collaboration features in the attempt to be the primary eDiscovery interface for their customers. So what pain point are customers feeling? The ubiquitous EDRM diagram answered that question for me. Created in 20XX, this model gave the nascent eDiscovery market a common vocabulary and lifecycle explanation when most counsel were still printing email and office documents for hard copy review. I missed that first year’s project, but gladly contributed to the expanding body of projects as the scope and scale of eDiscovery challenges exploded. The connectors between EDRM phases clearly demonstrate the traditional eDiscovery ‘telephone game’ where ESI was collected, processed and transferred between distinct teams. We all know the danger of passing a simple message around the camp fire, now imagine how that natural distortion is amplified through transformation of formats, load files and verbal instructions. So are you still playing this game?
2012-09-07 ILTA 2012 Technology Round-up
2012-08-16 Mobile Device Discovery Stories from the Experts The story about Michigan State Police officers collecting forensic snapshots of mobile phones during traffic stops back in April kicked off my long research journey into whether corporate mobile discovery was really feasible. After lengthy interviews with leading experts in mobile phone forensics, I can assure you that a full physical acquisition of your iPhone, iPad, BlackBerry or Android device is just not going to happen during a typical 30 minute custodian interview or a traffic stop. The connectors and communication protocols of mobile devices were not designed for high speed data exports that we have come to expect from enterprise back up systems and disk imaging devices like Logicube. The ‘pipe’ is just too small to copy 8+ GB without taking custody of the device. You can grab the active call log, text messages and other phone elements quickly, but that kind of logical extraction may not suffice to ‘preserve’ your custodian’s ESI in some matters, especially if that device may be the only source of deleted items that are critical to proving your case.
2012-08-14 Actos Case TAR Protocol Order – Equivio’s Relevance in Action? I always enjoy meeting other super geeks who revel in playing on the cutting edge of discovery technology. While I will reserve the ‘geek’ label for myself, my conversation on TAR with David D. Lewis was definitely a highlight at the Carmel Valley eDiscovery Retreat. Now I owe David for bringing the recent Actos Products case management order to my attention (MDL No. 6:11-md-2299). The order lays out the agreed upon protocol for a “Search Methodology Proof of Concept” to test Equivio’s Relevance predictive coding on 4 of 29 custodian’s ESI as a possible substitute for traditional manual review of the entire collection. Once you get into the specific email protocol (Section E) the order starts to read like it could have been copied directly from a savvy provider’s procedural manual. Now don’t get me wrong, the parties are using this process as a ‘proof of concept’ limited to four custodian’s email to see if they can apply these analytics to the broader potential ESI collection. There are lots of mandatory meet and confer check points along the process where either side could raise concerns or essentially bring the process back to the bench, but I am guessing that this train has left the station.
2012-08-01 CVEDR Take II – Monkeys and Magistrates in Monterey Chris La Cour’s second annual Carmel Valley eDiscovery Retreat (CVEDR) has just wrapped up three days of topical, interactive discussions in beautiful, relaxed Monterey, California. Many of us who attended last year’s retreat knew that this event is a perfect opportunity to gently introduce your significant other to the eDiscovery social scene away from the crazy crowds and business intensity of Legal Tech New York. The Monterey Bay Aquarium, kayaking and other attractions kept them happily occupied while we debated questions like, “Are you obligated to disclose Technology Assisted Review (TAR) or other analytics if they are used to make relevance decisions?” It was great to see many familiar top speakers and providers, but I do hope that more entry level corporations and law firms realize how valuable these smaller events are to new eDiscovery professionals. CVEDR tries to avoid ‘death by power point’ and the classic bobble-headed panelists reading from notes with those familiar droning Charlie Brown style teacher voices. Instead, the event has four themes each with five related topic sessions per track. That’s a lot of content and expertise crammed into two and a half days.
2012-07-18 Employee Smartphones and Tablets Behind Your Firewall
2012-07-11 Are Settlements Responsible for eDiscovery Lip Service? At the recent ECI event in Chicago, David Kessler (Fullbright & Jaworski Partner) made an interesting observation that 95% of all civil cases end in settlement while moderating our discussion on project managers in eDiscovery. That ratio was a bit lower than the typical discovery assessment metrics from my Fortune 500 clients, but it peaked my curiosity to see if real published study data existed. I found numerous unattributed comments purporting the rate to be 95-97% cases closed via settlement vs. trial, but the best recent study was a Florida Bar Special Committee report on the declining rate of jury trials. Even if you assume that the trial disposition rates below only correspond to the 11th Circuit and the Florida County courts, the trend is obvious. That 95-97% settlement rate was appropriate 25 years ago, but over 99% of all current cases now are disposed without trial. Despite that low trial rate, a much larger percentage of filed civil litigation will require some or full discovery effort prior to settlement. My question is, does the overwhelming settlement rate discourage litigants from investing in a thorough, defensible eDiscovery process?
2012-07-09 Expanding TAR to become Predictive Discovery Relevance and privilege review dominates the expanding cost of eDiscovery. Controlling that cost has focused innovation to create Technology Assisted Review (TAR) software and service offerings, but the various TAR approaches can be applied to almost every stage of the eDiscovery lifecycle. The trend to consolidate point products into broader eDiscovery platforms provides a pathway to spread TAR methods beyond review. Our recent briefing with FTI on their Ringtail 8.2 release is a good example how a mature product can leverage clustering, machine learning and other analytics to increase quality and efficiency across matter and global workflows. Like several other solutions including CaseCentral, Ringtail 8.2 implements a unified, Single Instance Storage (SIS) repository that gives their analytic data cubes and mines access to collections that span multiple matters. These global analytics support ECA, culling and QA scenarios upstream and downstream from the actual review.
2012-06-27 Mobile Devices– The Next eDiscovery Wave? My recent piece on Mobile Discovery – Are You Ready For It? seemed to hit a nerve with eDiscovery providers and practitioners alike. It generated a wave of article requests, product briefings, analyst inquiries and even hands on training and kit offers from market leaders. The volume of the response tells me that ready or not, it is time for civil eDiscovery to accept the fact that mobile devices are a real source of ESI. So I am reprioritizing my research schedule to survey mobile device solutions and best practices from the corporate and firm civil discovery perspective. The first step is a fast six question survey launched today on mobile device discovery. Please take a minute and see how you compare to others. The next step is a look at the history of mobile device forensics to understand where the wide array of current offerings come from.
2012-06-19 Is Practical Cell Phone Preservation Within Reach? When headlines, press briefings and client requests on the same topic all hit at once, you have to pay attention. I recently wrote Mobile Discovery – Are You Ready For It? in reaction to a story about how Michigan and three other states may be capturing cell phone images during traffic stops. Then a sharp client asked for a market perspective on mobile preservation obligations in the wake of the BP criminal charges. The final straw was a briefing request from Cellebrite’s CEO James Grady on the release of their new UFED Touch product line. That was enough motivation to steal the time for a fast briefing. The primary goal was to determine how easily a corporation could acquire, train and integrate a mobile extraction device into their legal hold process. Mr. Grady indicated that although government and security customers still dominate their sales revenue, corporate eDiscovery sales took off last year and is one of the fastest growing market segments. Every corporate decision maker is effectively chained to their iPhone, Blackberry or Android smart phone. Moreover, iPads have become the executive toy-du-jour for meetings and travel with apps that allow them to edit presentations, email and MS Office documents (all discovery request targets). So what does it take to preserve and process cell phones?
2012-06-14 Desktop Discovery is Not Dead In our recent post on the winners and losers in the eDiscovery software market, we called out Access Data for seemingly abandoning the desktop license market. That one comment prompted quite a few spirited responses from a number of software providers who wanted to make sure that eDJ was clear that they were still focused on the sale of traditional desktop license software. First and foremost was the Access Data product management team who were happy to dive into their Summation Express product (more on that below) as proof that they were committed to their stand alone customer base. Sherpa Software stepped up to tell us that their primary customer base has always been corporate and law firm IT departments who need a simple solution for search, processing and export of email and native files that can be run from a desktop or workstation. I really appreciated Rich Ruyle’s point about why IPRO continued to develop an enterprise and desktop version of their Eclipse product. The IPRO enterprise version is based on a relational database while the desktop version uses IPRO’s proprietary flat file database. It is clear to eDJ that the market for desktop discovery software is strong and vital.
2012-06-07 Chicago Executive Counsel's "The Exchange" – eDiscovery Counter Culture
2012-05-31 Filers vs Finders – The Challenge of Defining Records Do you file your critical email in folders or just search for what you need? Filer or finder does not matter until your company decides to clean up its digital landfills. Records management sounds easy at first. Users designate actual business records and some system expires (deletes) non-record communications and loose Office files after an acceptable time for business use. Microsoft introduced Managed Folders for Outlook 2007 to support this exact process. Although they could have replicated the same functionality into normal file shares (directories), they chose to nudge the market to migrate loose content to Sharepoint for many reasons. The entire ‘foldering’ concept is dependent on overburdened users taking the time and effort to make active decisions on every email they send or receive. Many users have given up trying to file email or files into the appropriate folders and instead just rely on Outlook/Windows search (weak) or aftermarket desktop search engines like X1 or ISYS to find items when they need them. So how does a company minimize user (and productivity) impact while implementing a selective retention initiative (i.e. stop keeping everything)?
2012-05-29 Is Your Privilege Mired in Your TAR? Technology Assisted Review (TAR) has dominated our recent briefing sessions with providers and consumers alike. Consumers want eDJ to clarify the terminology, technology and market hype surrounding recent cases. Providers have expressed their frustration with the portrayal of TAR as some kind of ‘Easy Button’ that will magically reduce your review expense by 95%. Really. We are hearing second hand stories like, “But VendorX says his system only needs to train with 5%.” Early TAR innovators like DiscoverReady’s CEO Jim Wagner long ago understood that, “It’s not the technology. It’s the people and process.” That can be a complicated message for a relatively unsophisticated consumer who reads blogger headlines instead of the actual transcripts. Discovery and review cease to be easy or routine as the volume and composition of potential collections exceed the ability of a single reviewer to manually code every item. Beyond simple relevance the additional complexities of privilege in TAR keep coming up in our briefings.
2012-05-15 First BP Charges-Not the Crime But the Cover-up Again The DOJ filed the first criminal indictment relating to the BP Horizon oil spill. It had nothing to do with the actual spill, but was actual criminal charges over an eDiscovery cover up. When something really bad happens, it is human nature to want it to just go away. Former BP engineer Kurt Mix seems to have fallen for the same temptation to try and make the evidence disappear as such well known offenders as Authur Andersen, President Nixon and Rupert Murdoch. Reportedly, Mr. Mix wiped approximately 200 relevant text messages from him smart phone after being notified that his ESI was scheduled for collection. His purported attempt to destroy key evidence in a federal investigation has elevated his role from witness to potential felon facing up to 20 years in jail. So far, the justice department has limited their wrath to Mr. Mix, but Mesa Airlines was found liable for a similar attempted destruction of ESI in In Re Hawaiian Airlines, Inc., Debtor. Hawaiian Airlines, Inc., Plaintiff, vs. Mesa Air Group, Inc., Defendant Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 United States Bankruptcy Court For The District Of Hawaii 2007 Bankr. Lexis 3679. I hope that this case raises awareness of the importance of documented preservation protocol, custodian communications, collection technology and compliance efforts. You want to be in a position to demonstrate that the eDiscovery team clearly communicated the external and internal consequences of non-compliance while making reasonable quality assurance efforts. “But your honor, we sent the executive the exact same preservation email every quarter for every case we have. Those notices are six pages of legalese that cover every contingency and ESI source. It’s not our fault that he panicked when we told him we were coming for his iPhone.” Let’s see how far that argument gets you.
2012-04-25 Vendors – A Dying Breed? Thoughts from IPRO Innovations I always enjoy speaking at the IPRO Innovations conferences. They are a good mix of IPRO channel partners and corporate/firm customers, which makes for an excellent market sampling without the crazy crowds or sales intensity of Legal Tech. The IPRO team knows how to create a fun, relaxing atmosphere with enough real content to keep attendees engaged. You may have noticed my deliberate use of the slightly pejorative term “vendors” in my headline. I normally prefer ‘service providers’ to call out the ‘service’ and expertise that I hope is part of every eDiscovery project. ‘Vendor’ has always reminded me of a bulk commodity seller, think of Walmart selling eDiscovery.
2012-04-16 Kleen Products vs Da Silva Moore: Measurement vs Method I have read more eDiscovery caselaw and commentary on these two matters in the last month than I ever wanted to. Although the issues around Technology Assisted Review (TAR) are important, it appears that the fervor and hype is being driven primarily by a wide variety of parties who are attempting to capitalize on the matters. Call me naïve, but it astounds me that any eDiscovery consultant or provider participating in an active case would publicize hearing transcripts, create press releases or otherwise put their own interests ahead of their clients. In Da Silva Moore the parties demonstrated laudable cooperation and agreement prior to the first hearing. They agreed to a relatively transparent protocol to tackle a massive collection. All of that has broken down and now there appears to be what could be a concerted effort to discredit magistrate judge Peck and force a recusal. Wow. Would this promising case have turned so acrimonious without the heavy publicity and marketing budgets of TAR providers? Possibly.
2012-04-09 Mobile Discovery – Are You Ready For It? A good friend shared an interesting story over the weekend about how the Michigan State Police routinely collect forensic snapshots of mobile phones during traffic stops. Apparently the American Civil Liberties Association (ACLU) is investigating the MSP’s use of the CelleBrite UFED kit during minor traffic stops without a warrant. At first, this seems outside the arena of civil electronic discovery. However, the story headline claims that the CelleBrite UFED only takes 2 minutes to image a mobile phone. The fact that they are being used by a state patrol officer during a traffic stop certainly backs up this time frame, but I could not find any performance information on the CelleBrite site. I see the new generation of mobile forensic technologies breaking down corporate ‘unduly burdensome’ arguments that have managed to exclude these devices from the discovery scope of many/most cases. After all, a plaintiff can now point to this article and ask, “Why can’t you use a similar device to preserve all custodian phones during your initial interviews?” Widespread use by non-geeks on roadside traffic stops certainly makes that a tough argument to fight.
2012-03-27 Is Linear Review Dead? Last week I was a panelist at the 2012 Masters Series event in Houston and enjoyed the lively and frank discussions about purchasing trends, privacy issues and more that continued into the social gathering afterward. As you might expect, predictive coding and the latest Da Silva filing were a hot topic, especially amongst providers of managed review. One remark by Jim Wagner, CEO of DiscoverReady, resonated with me and I told him that I was going to steal it for a blog. To paraphrase, “The market sees linear review as disorganized review.” He was right on target. Linear review has become synonymous with plowing through millions of randomized email/documents in the least efficient or effective manner. I ask you, “In the last 5 years, have you reviewed collections that had not been culled, searched, prioritized, deduplicated, email threaded or otherwise optimized for review batching?”
2012-03-20 Defining the eDiscovery Platform – Autodesk Interview One of the bright points of designing the new eDJ Matrix has been our analyst sessions over what functionality is required for software and services to qualify for our market categories. It may sound geeky to you, but I have grumbled over ‘waves’ and ‘squares’ that were real apple-orange comparisons too many times. I want to get this right in our next big release. The ‘eDiscovery Platform’ was a prominent theme at LTNY 2012, but what do providers mean when they call their software a ‘platform’. They want to give buyers the impression that they cover the entire eDiscovery lifecycle, generally by showing the EDRM diagram covered by their software logo. As nice as that sounds, no one covers document creation through trial presentation in one program, NO ONE. But a more realistic corporate eDiscovery platform seems to be attainable. We spoke with the litigation and compliance team at Autodesk about their selection of Symantec’s Clearwell software.
2012-03-07 Tech Take Aways in Judge Peck’s Da Silva Opinion The value promise of ‘black box’ predictive coding or ‘Easy Button’ review gets marketing departments all excited. So excited that eDJ was inundated with copies of the hearing transcript and opinion of Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012) along with their interpretations on how this changed the ground rules of eDiscovery. Marketing departments can spin a mountain out of a mole hill. In his final order, Judge Peck pushed back, “To correct the many blogs about this case, initiated by a press release from plaintiffs' vendor – the Court did not order the parties to use predictive coding. The parties had agreed to defendants' use of it, but had disputes over the scope and implementation, which the Court ruled on, thus accepting the use of computer-assisted review in this lawsuit.” Check out Mikki Tomlinson’s interviews with Judge Peck or Conor Crowley’s excellent legal summary for more practical interpretations. The arguments over how you know when your predictive training are ‘good enough’ are worth dissecting. eDJ has been researching the methods of technology assisted review, so I thought it worth extracting some of these key points. Remember that even the vendor experts in this case are representing their technology. Preliminary raw hearing transcripts rarely released to the public and I wonder if the parties are as happy as their vendors about all the publicity. This is a nice glimpse into the fray before the dust has settled on technology assisted review.
2012-02-29 Buckles LegalTech Micro Briefs – It’s a Wrap Wrapping up my quick takeaways, I want to say that I really enjoyed the upbeat attitude at LTNY 2012. It was a great show for us and the follow up demos, proposals and new development work has kept us hopping. So here are the last of my briefs, with apologies to all of the providers who did not manage to get time with us or who could not deliver a memorable message to pass on. kCura – The latest release (version 7.3) may feel a bit retro to any of us who remember having to install 20+ applications to every Discovery Cracker workstation in order to TIFF collections. As it was explained to eDJ, the new Relativity Native Imaging feature is optional, only requires 16 applications for full support and is intended to improve the quality and performance of productions. My own take away is that this is the foundation for processing native collections, which is the next logical step in growing Relativity from a review point solution to a broader eDiscovery platform. We followed up with several major Relativity service partners who confirmed our theory. So the real question is whether this will blunt the meteoric rise of kCura’s channel or simply launch them into broader corporate sales. We have seen other market leaders stumble and lose momentum when making this transition, so kCura should be watched closely over the next year.
2012-02-27 Buckles LegalTech Micro Briefs – Part 2 Our LegalTech briefing schedule was pretty hectic and I did not want to drag you through all minutia and marketing messages (BIGGER-FASTER-EASIER). So I will try to make this easy to scan and only dive into details when there is real differentiated value. Symantec/Clearwell – This was our first combined briefing since Symantec acquired Clearwell last July. We had a lot of tough questions for the teams and were pleased to hear how these market leaders are tackling the real challenges around integration of technologies, sales, marketing, services and channel partners. The next major version of Clearwell should provide Enterprise Vault (EV) customers an advanced option to the venerable Discovery Accelerator product for direct search of the EV archives. Bi-directional application and management of legal holds within EV is further down the roadmap, but the Clearwell development team has a good track record for rapid dev cycles. Recent calls to traditional Symantec system integrator channel partners such as GlobaNet revealed multiple Clearwell certified consultants ready to support combined EV-Clearwell-LiveOffice implementations. That is a good sign that Symantec’s channel partners are engaged with these merging information governance-eDiscovery product lines. We look forward to seeing how Clearwell’s huge eDiscovery channel partners transition from volume based hosting sales to selling enterprise licenses and managed services.
2012-02-13 eDiscovery Ethics – Using Our Superpowers Responsibly Behind our firewall, eDJ has a custom Google search engine based on the top 1,000+ eDiscovery related sites and search terms. I was ‘working’ on this engine over the weekend, as we all know that relevance is a moving target and searches must be optimized to stay relevant. A strange headline from my local paper caught my eye, “Falkenberg: Housing authority’s snoop had eye on others” from the Houston Chronicle. A quick scan revealed that the local county housing authority hired an eDiscovery service provider, Pathway Forensics, to make an open records request for emails, phone records and credit card statements of the local county judge and his staff. That same county judge has questioned recent large salary adjustments and pet projects of the housing authority’s top officials. The short article explains the almost comic plot to get some kind of dirt on an elected official who is trying to mind the public coffers. More relevant to our eDiscovery community is the questionable role that an eDiscovery service provider plays in this comedy of errors.
2012-02-08 eDJ's Greg Buckles' LegalTech Micro Briefs – Part 1 This was my first LegalTech where I could put on my analyst hat without needing to manage corporate clients or speaking panels. It brought home to me just how hard it was to switch mindsets and reminded me of the 2010 PBS special, “Digital Nation” that shattered my personal myth of multitasking. It is safe to say that I brought more to my hectic briefing schedule this year and took a lot more out of them as well. The other new element was taking digital notes on the iPad. Barry liked the Penultimate app, while I finally settled on PhatPad with the hope that I could leverage it’s handwriting recognition, photo and audio recording features.
2012-01-31 Re-Discover LTNY 2012 – Name that Booth In case you could not make THE legal technology conference, LTNY 2012, I thought that I would bring the show to life for you. The eDJ Group’s day kicked off far too early with our eDJ Peer Group breakfast, but we had good attendance and great participation in the open discussion. The team then dove into analyst/press briefings on many (but not all) of the new product releases, which we will boil down for you in the days following the show. I decided to try to abandon my laptop and Moleskine notebook this time. I tried out every iPad note taking app I could pay for that promised to accurately recognize my sanscrit scrawl and render it into searchable text. Utter failure. For those of you from the early EDD days, remember the first generation of OCR programs and wince. That’s about how bad they are. To make it worse, I became obsessed with ditching the ever-present backpack or LTNY trash bag. So I actually shopped for an iPad ‘holster’ and bought an STM sleeve that promised to provide easy, safe storage without the ever present shoulder strap. However, my fashion faux-paux was quickly spotted by my kind team-mates who reminded me that I was wearing a geek man-purse.
2012-01-27 eDiscovery’s Unexpected Loss: Ursula Talley As most of us are getting ready to brave the cold and crowds of LTNY 2012, I received sad news that Ursula Talley passed away last night while fighting recently diagnosed cancer. As the VP of Marketing for StoredIQ, Ursula was the outward face of StoredIQ and a key player in the platform’s evolution since 2007. I always enjoyed working with Ursula, first as a Symantec business partner during my Product Manager days and then later as an analyst client. I last visited with Ursula at her October StoredIQ Industry Advisory Board and was lucky enough to get there early for a talk before round table kicked off. She will be missed and I encourage everyone who knew her to raise a glass to her memory and to appreciate the relationship opportunities that our business and life presents us.
2012-01-20 Unexpected Challenges of Enterprise Remote Collection The astronomical growth in corporate data has driven the practice of eDiscovery away from just the forensic imaging of physical hard drives. The first systems for remote collection of email containers, Office files and other ESI from desktops, laptops and servers appeared in the 2004-2006 time period. I might have been one of the earliest beta testers for Guidance’s Encase Enterprise platform when I was managing the litigation technology for El Paso Corporation back then. Since then, the market has seen a wide variety of new appliances, just-in-time apps and other remote collection technologies. Most appear to promise a ‘push button’ automated collection by IT or Legal with minimal or no impact to working users. Legal sets the scope (date ranges, file types, names or search terms), and the system does all the work in the background. I just wish that it was that easy in the wild west of real world enterprise environments.
2012-01-17 Authenticating Your eDiscovery Web Resources So where do you get your eDiscovery news from? Obviously you get some of it from the eDiscovery Journal, but no one should rely on any one source. A while back, my friend Browning Marean complimented me on a blog post. Turns out, he reads my blogs from another website. Luckily, that site at least attributed my blogs to me. It got me thinking about how easy it is to get high search ranking with the right domain name. Google and Bing have gotten smart about having multiple web addresses that redirect users to your site, so one ‘best’ practice for SEO optimization is to create microsites that reinforce your brand/message/perspective through proxy domain registrations.
2012-01-04 Who Owns the eDiscovery Hot Seat – Corporate or Counsel? The vast majority of our corporate clients are public corporations with inside counsel. Generally we work directly under inside counsel’s supervision to protect our work product. A fast assessment engagement for a smaller corporation without any inside counsel got me thinking about eDiscovery risk vs. cost decisions in a different light. Civil litigation is a ‘sooner or later’ fact of life for any public corporation with enough revenue to tempt a plaintiff. As eDiscovery becomes a defacto business process, what hat is the typical inside counsel wearing when they make decisions on matter scope, filters, data sources and more? We tend to think of counsel as the final arbitrators of eDiscovery decisions. But frequently, inside counsel is wearing the business hat when applying the ‘reasonable effort’ standard to situations. In a company without inside counsel, who does that final decision fall to?
2011-12-27 Practical QC in eDiscovery One key element for transforming your eDiscovery from an ad hoc reactive fire drill into a mature, proactive business process is the development and implementation of formal Quality Assurance(QA) and Quality Control(QC). I have always viewed QA as tackling ongoing process improvement such as regular cross case comparisons, while QC tends to be checking on did the process perform properly. Basically, how can we make the process better versus did everything work right? When interviewing corporate client eDiscovery teams, everyone is conscious of the need for QA/QC, but the vast majority seem to feel that it is impractical or unrealistic given their tight deadlines, lack of resources and typical fire-fighter mentality. Some law firm clients have swung to the opposite extreme, with elaborate workflow, check lists, physical chain of custody forms and more. Their QC has grown out of reasonable proportion and their productivity suffers because their overall QA has been neglected. So how do we achieve a reasonable quality process without bringing the legal process to a halt?
2011-12-19 Congress Says eDiscovery Not a Burden – What Do You Think? It seems that Congress feels the need to weigh in on the costs of eDiscovery. Articles from LTN, CMSwire, and many other bloggers take many different perspectives on the commentary and Q&A session. We went to the House report to try to extract some of the highlights. My biggest take away is that we really do not have any solid metrics and objective market data on the true cost of eDiscovery. The comments focused on the cost and burden of preservation, especially on matters that never become actual litigation. Republican subcommittee members stressed the costs while Democrats questioned the relevance and corporate donor origin of the hearing itself in light of the active rule evaluation by the Judicial Conference. So here are some of the notable statements with my own perspective on them.
2011-12-12 Why Not Move Your eDiscovery to the Cloud? - Part 2 Continued from Why Not Move Your eDiscovery to the Cloud? - Part 1… The second concern regards how to move the actual data to and from the Cloud storage. Many providers will tell you that you can just upload your data directly via web or ftp. STOP HERE. Normal File Transfer Protocol or web page upload is NOT protected. So use an SFTP equivalent or better yet look at the previous paragraph and only send encrypted packages. Internet backbone speeds still limit the practical size of uploads to 5-10 GB unless you have a dedicated pipe to your provider. Data uploads that take longer than 1-2 hours may crash or bog down your own network. eDiscovery performance is all about getting that large collection on line for review as fast as possible. But just as the speed and performance wars died from lack of interest, I think that most legal users have come to understand that it may take a day or two to properly handle and process potential evidence. While service providers and certain global corporations may have a high proportion of large (>10 GB) collections or productions, a quick check with a couple clients revealed that only 10-15% of their collections might need to be loaded directly by the host. I wrote a piece last year about how Fedex may be the true winner in the migration to the cloud.
2011-12-05 Why Not Move Your eDiscovery to the Cloud? - Part 1 In my last post, we explored the relative cost of Amazon S3 Cloud storage compared to traditional hosting provider costs. Despite the potential cost savings of servers and storage in ‘The Cloud’, I am not yet seeing many firms or corporations jumping to move their eDiscovery to the Cloud. In a recent analyst briefing on our eDJ top 2012 eDiscovery Trends, Barry Murphy posited that legal and compliance resisted the leap beyond the firewall until they had more public success stories and caselaw. So what are they worried about? Data security was the first concern of a recent law firm client. “How can I assure my client’s that their sensitive ESI is safe and that we are not inadvertently waiving privilege?” Good question. So I went looking for a good answer.
2011-11-29 Will Amazon S3 Rain on eDiscovery Hosted Providers? The cost of storage has come up in several recent engagements for firms and corporations. I started thinking about while we were brainstorming in preparation for our recent webinar on enabling expiry on archives. Calculating a Return on Investment (ROI) on a legal hold initiative includes the recovered cost of storage when you can eliminate 40-80% of your non-records. It was pointed out that storage costs have dropped so much that eDiscovery costs have superseded them as the primary motivation for cleaning house. My panelists trotted out several figures ($/GB) from well known analysts for the Total Cost of Ownership (TCO) of storage. I feel that Amazon S3, Rackspace and other global cloud services have clearly set the market price on storage at less than 15¢/GB. Yep, that’s right 15¢/GB. I can recall early eDiscovery hosting RFP’s at $30-50/GB/Month for online storage. That was just for storage, but it made an easy argument for in-house systems when many matters can run for 2-3 years or longer. Hosting providers generally lead with their processing and review offerings and tend to bury the ongoing storage costs deep in their bids, even though these recurring costs can represent the highest margin item on the engagement.
2011-11-11 Managing Your Digital Landfill - Webinar Feedback I thoroughly enjoyed today’s webinar on using legal holds to start expiring ever-growing archives. I wanted to thank my panelists: Kyle McClain (Monsanto), Allison Walton Esq (Symantec) and Mikki Tomlinson. Mikki was Chesapeake Energy’s eDiscovery Advisor when we asked her to participate in the webinar, but the eDJ Group was fortunate enough to steal her away to become our new Director of Consulting. We have been growing out our strategic services group based on my Reason-eD client base to meet the demand for independent eDiscovery expertise. Now back to the webinar. This webinar and the eDJ research report, “Legal Holds for Enterprise Archives” were inspired by the sudden upsurge in interest we have seen in corporations wanting to finally start shrinking the archives that they implemented to manage email and legal preservation requirements. Thanks to Symantec for sponsoring complimentary copies of the research report for all attendees.
2011-11-04 First, Wrestle the Gator in the Boat A sharp client recently said, “Let’s wrestle the alligator in the boat before we tackle the rest of them.” That pithy statement allowed the rest of his team to let go of the ancillary challenges that kept distracting everyone from the immediate goal that we were there to resolve. Face it, enterprise information governance or true discovery maturity is an unattainable goal. That does not mean that we should give up. Instead it means that we must strive to identify and prioritize the initiatives that we CAN attain so that we stay within the corporations idea of acceptable risk, cost and capabilities. There is no ‘one-size-fits-all’ definition of litigation readiness. For unregulated corporations with a minimal litigation profile, solid preservation and a proven mix of firm and providers may give them everything they need. Serial litigants may require a full litigation support department with processing, hosted review and production capabilities to control ESI and costs. You cannot create and implement enterprise wide systems in the blink of an eye, no matter what that rep assured you over the second bottle of Zinfandel.
2011-10-28 Has eDiscovery Disenfranchised Our Paralegals? I had a great session with one of the top eDiscovery law firms this week. We spend time on their pain points and discussing the ownership ESI collections as they progress through the firm. One of the things that hit me was the realization that as eDiscovery has consumed more and more of the actual discovery lifecycle, we may be unintentionally taking the traditional gatekeepers out of the loop. When I reflect on the print/copy days of discovery, paralegals always owned the boxes. When a partner went looking for a critical document, the paralegal knew exactly where it hid and could reconstruct how it got into evidence. Paralegals still coordinate with the corporate clients on collections and overall management of deadlines, but it feels like initial collections now vanish into litsupport or service provider shops to emerge transformed into review sets. The problem is that this metamorphosis is generally a black box process (yes, I like the phrase because it evokes the abracadabra moment).
2011-10-13 Trash or Treasure? Expiry vs. Big Data Big Data was a top theme in StoredIQ’s Industry Advisory Board last week. The StoreIQ team believe in the ongoing transformation of enterprise digital landfills from trash to the treasure trove promised by business analytic mining of “Big Data”. The fundamental idea is that immature repositories of unstructured ESI are a liability, while a mature content lifecycle environment (people, process and technology) makes that wealth of information work for the benefit of the company. Let’s face it, storage is relatively cheap compared to 10 years ago. We spent a fair amount of time discussing the key factors to calculating the ‘true cost of ownership’ for a mythical gigabyte of Office files, but the cloud market has already given us a solid baseline cost. Amazon S3 and their competitors can make a profit at 6-14¢/GB/month, so that pretty much confirms that actual storage is cheap.
2011-10-04 A Round of eDJ Review Deep Dives It has been a busy couple of weeks. The new eDJ Tech Matrix has been gaining steam, which has required lots of deep product dive sessions and new features to categorize. I thought that I should call out some interesting highlights: TotalDiscovery from BIA is now offering a subscription pricing for legal hold notification at $1/Custodian/Month. Yet another sign that eDiscovery is moving towards true cloud subscription licensing. Mitratech’s TeamConnect is also available on a Saas subscription model. It has been a while since I got to dig into their offerings and I was impressed by the customizable dashboards and sharp J2EE-based platform. I was pleased to see that they had already added the new L600 series UTMBS eDiscovery code set that was ratified by the LEDES Oversight Committee on July 13, 2011. The ongoing project is drafting expanded eDiscovery activity and expense codes, so I hope to hear of more legal billing systems incorporating the new codes.
2011-09-23 Stuck in a Security Straight Jacket [warning rant] The eDJ Group’s corporate consulting does not usually touch tactical matters. Most corporate clients already have good service provider relationships or we partner up with a local provider to keep our role clearly on the strategic requirements, goals, technology and workflow. Despite our best intentions, you sometimes have to jump into the fray when a client says jump. That was how I found myself once more elbow deep in batch scripts on a large preservation collection project with a looming deadline. Every time we tried to transfer executables, .BAT files or anything except normal MS Office files we ran into security system blocks. It quickly became apparent that even with administrator rights, we could not run or move the remote collection packages or scripts within their environment. I try sending zips via email. They never arrive. Next I dust of my FTP site and get everything uploaded. Their firewall blocks all FTP connections. Final resolution? We had to resort to a freemail account. Success!
2011-09-08 Rule Based Categorization – Then and Now A recent client discussion reminded me of my earliest attempts at rule based categorization and the hard lessons of that experiment. Back in 2000, my general counsel (GC) asked if it was possible to find and segregate all potentially privileged emails out of the hundreds of millions that we had to produce to many different parties. I took a couple hundred thousand email and spent a week crafting search criteria/rules and doing iterative sampling checks. I worked with our top paralegals and our long standing firms to incorporate everyone’s input. I segregated approximately 18% of that collection as potentially privileged and put the remainder in the review queue without telling my contract attorneys that it had been cleansed. I felt pretty good about the exercise and knew that my rules were overly inclusive, but the point was to determine the risk of privilege waiver if we gave all the regulators remote access to the ‘cleansed’ master collection while my review teams worked on the 15-18% at issue. In the middle of the review, my GC ‘volunteered’ to man a review station for a couple hours to see for himself how it worked. After all, it was his question that kicked off this experiment. What do you think that he found?
2011-09-01 ILTA 2011 – A Wave of iPads, Managed Services and Predictive Coding Now that I have had a couple days to digest my whirlwind of Nashville ILTA 2011 press briefings, I wanted to get you my impressions on the memorable highlights. My first impression was, “OMG everyone has an iPad!” Really. Given the amazing prevalence of the tablets in the audiences of my sessions, I was not surprised that Recommind has just released an optimized mobile interface for their Axcelerate product. Howard Sklar (Recommind) says that they wanted to get ahead of the blurring the line between personal and professional lives. The service providers seem to be feeling the pressure from corporations to mitigate rollercoaster discovery costs with fixed fee and managed service offerings. Just as legal hold features were the hot add-on at LTNY in February, flexible work flows seemed to be the hot feature as providers are gearing up for the end of year release cycle.
2011-08-26 ILTA 2011 – That’s a Wrap A year after the flooding, the ILTA rev-elation conference finally made it to the Gaylord Opryland Resort this week. I heard that member attendance hit 1500, but the increased provider presence raised the total attendees to almost 2500. As an acquaintance remarked, “The resort is like a casino, but all the slot machines have been replaced by plants.” Yes, it was that hard to find your way out. Luckily the conference and networking proved sufficiently distracting. The friendly atmosphere and grass-roots networking have always differentiated ILTA from the commercial bustle of Legal Tech. The exhibitor labyrinth was much larger than the last show in Las Vegas, which I have mixed feelings about. Overall, the mood was upbeat and almost everyone I queried has had a record year. Litigation and discovery readiness spending seems to have recovered from the 2008-2009 lull.
2011-08-18 Legal Holds for Enterprise Archives – A New Report Legal hold initiatives have dominated my corporate consulting engagements for the last year, especially implementing holds across enterprise archives such as Symantec’s Enterprise Vault, EMC’s SourceOne (EmailXtender) or Commvault’s Simpana (although rumors indicate that Commvault is discontinuing their discovery templates). It makes sense that corporate legal departments tend to start by tackling the greatest risk that they are responsible for, preservation of all potentially relevant ESI – especially email. Acquiring an enterprise archive allowed them to capture (journal) all communications, thus providing immediate ongoing preservation. Now that the immediate risk has been mitigated, corporate IT has begun to scream about the rapidly growing corporate digital landfill. I have corporate clients who are accumulating 5-7 TB of email per year at an escalating pace. That explains my backlog of clients wanting to protect potential evidence within their archives so that they can expire (delete) all non-records according to their retention schedule. Sounds easy, but having done a lot of these has taught me that there are frequently land mines buried just under your communication trash. This inspired me to write a report detailing the common issues, solutions and best practices around implementing legal holds on enterprise archives.
2011-08-12 Carmel Valley eDiscovery Retreat – Buckles Wrap-Up Wrapping up my coverage of the first Carmel Valley eDiscovery Retreat, it seems strange that almost a month has flown by. Then again, we have been in serious growth mode at eDJ now that Jason Velasco has come on board. As I am working on my ILTA 2011 sessions on Predictive Coding/Remote Collection and the Cloud for Firms, it becomes clear that my sessions in Carmel have changed my expectations of audience participation and content quality for conferences. I put a lot of thought into how to prevent the two classic conference panel killers, ‘Death by Powerpoint’ and the ‘Charlie Brown Speaker’. The informal setting and intimate audience gave me the freedom to take risks that might not have flown as well in the packed, stifling rooms of LTNY.
2011-08-01 Carmel Valley eDiscovery Retreat – Buckles Part 1 The breaking Casey Anthony forensic story has delayed my recap of the first Carmel Valley eDiscovery Retreat last week. Luckily, Barry Murphy managed a good post on day one. Chris LaCour, the event organizer, deserves congratulations for breaking the LTNY event mold. He dared to plan a small scale interactive format heavy with experts in a beautiful venue that encouraged open social dialogue. He recruited Browning Marean, George Socha, Barry Murphy and myself to create focus tracks featuring cutting edge topics for the panelists to debate. This was not the typical sponsor driven marketing messages, but real discussion that actively engaged the audience. I moderated three of my CLE sessions and passed the microphone to Kevin Stehr of Lexis Nexis for the “Defining the eDiscovery Platform” session. The participating providers generally limited themselves to sponsoring meals and social events, which kept the event relatively free of the marketing madness that has dominated the big NY show. I hope that this retreat signals that the eDiscovery market is willing to consider alternative academic, market and social events.
2011-07-26 What Went Wrong in the Casey Anthony Browser Analysis Although none of the principals involved want to speak on the record, I managed to get some detailed information on the technical issues. Consider this a Part 2 to my blog on the discrepancies raised by the defense between the initial police report using Digital Detective’s NetAnalysis of 1 visit and the subsequent SiQuest CacheBack report of 84 visits related to chloroform from the Anthony family computer. The NY Times article does a good job of the event timeline, so I am just going to focus on the deep geek details. All of this centers around the parsing and extraction of Google searches and site visitations from the Firefox 2 browser history. Firefox Versions 1 & 2 used a rather unique and problematic database file coined “Mork” after the quirky TV alien ‘Morky & Mindy’ TV show.
2011-07-22 Casey Anthony Trial – A Call for Validation Testing While moderating CLE sessions at the Carmel Valley eDiscovery Retreat this week, I received multiple emails from clients and contemporaries drawing my attention to the breaking scandal around the erroneous web cache forensic reports in the Casey Anthony trial. As it happens, one of my sessions with Herb Roitblat and Jason Velasco was “Validation Testing - Defending Your eDiscovery Process”. I have not been able to get a more detailed analysis of the exact issue with the CacheBack software used by John Bradley (the designer) as yet. The primary problem was that his initial analysis showed that someone on the Anthony residence computer had run searches for “Chloroform” 84 times when it was later determined that this had happened only one time. This is a good example of how even the best intentioned and experienced user can come up with erroneous results in unusual or unanticipated circumstances.
2011-07-18 US Patriot Act Trumps EU Safe Harbor A couple weeks back I wrote a piece on the Commission on the Leadership Opportunity in U.S. Deployment of the Cloud (CLOUD2) looking at what the U.S. could do to encourage global companies to adopt U.S. based cloud providers. I enjoyed speaking to the international working group on potential eDiscovery concerns with cloud providers. The group is analyzing the issues and creating innovative recommendations for the Obama administration. Their work just got a bit harder as Microsoft’s UK Managing Director Gordon Frazier admitted to ZDNet that EU data stored in Office 365 could be accessed by U.S. government under the U.S. Patriot Act. This should not be a surprise to anyone who has watched the debates over government internet monitoring programs like Carnivore and NarusInsight. It apparently was a surprise to members of the European Parliments who are now demanding answers.
2011-07-13 eDiscovery by the Sea A lot of my week has been spent on calls prepping the ‘Using eDiscovery Technologies’ track of the Carmel by the Sea eDiscovery Retreat next week. When Chris LaCour first recruited Barry and I to create focus tracks, I loved the idea of a small, relaxed retreat where attendees could really interact with the speakers. I thought of it as the antithesis of the typical Legal Tech experience; crowded, commercial, chaotic. George Socha, Browning Mareen, Barry Murphy and myself collaborated to come up with four focus tracks, each with four sessions over the three days. I managed to hand over the ‘Defining the eDiscovery Platform’ to Kevin Stehr of Lexis Nexis to develop and moderate, but that still left me three sessions to wrangle with. I am pleased with my panelists and the materials that should be finalized early this week. I know that the retreat is a small venue and it may be hard to convince your management that you really will be learning about eDiscovery rather than hitting the links, but I see this as an excellent west coast opportunity to get quality content and real discussion from experts, judges and your contemporaries.
2011-07-06 eDiscovery Patent Enforcement – Market Impact? When a major eDiscovery controversy breaks out, the eDJ team usually gets on a call to discuss and designate who should take the lead in response. Barry Murphy did a great job going to the source on the Recommind predictive coding patent announcement. I also enjoyed Herb Roitblat’s analysis of the patent content. At first, I did not figure that I had anything to add that had not been covered. Numerous ongoing discussions with clients, sponsors and contemporaries made me realize that I did have two cents to toss into the whirlwind. Designing and consulting for software companies got me in the habit of digging into the use of open source and potentially patented technologies. I know of many patents held by early innovators that have never been enforced on the market.
2011-06-29 Purpose Built Cloud Tools – Exego 2.0 As I was walking through Planet Data’s latest hosted offering, I was struck by the freedom that web based applications have to assemble key features to support specialized workflows. After all, if you have all the basic functions, it is merely a matter of presenting them in a clean set of web pages. We tend to forget that eDiscovery is still relatively new and the vast majority of our actual software users are still just getting up to speed on the technology. Litigation support staff, service providers and consultants live and breathe all this, so we know the context and can navigate a crowded graphical user interface (GUI) full of mysterious icons and mouse-over terms of art like dedup, fuzzy, family, etc. The effort to create stand-alone traditional software that had to function in diverse environments and support a wide variety of usage scenarios produced highly complicated, crowded feature toolboxes such as Summation. Exego Early Cost Assessment is a good example of how cloud development can create a streamlined workflow to meet a specific set of requirements.
2011-06-21 eDiscovery in the Cloud – Who Owns Your ESI? I recently had the opportunity and privilege to give my perspective to the international working group of the Commission on the Leadership Opportunity in U.S. Deployment of the Cloud (CLOUD2). The commission has a three month mandate to provide the Obama Administration with recommendations to support our growing cloud industry. Many of my global corporate clients have struggled to reconcile their eDiscovery, regulatory and storage requirements across their diverse business units in various countries. Preparing for my presentation brought me the realization that we really are moving to the cloud, dragging the luddites along kicking and screaming. I gave a bit of background on the challenges I saw facing global corporations and moved on to why even large enterprises are exploring migrating their systems and data to cloud or hosted services.
2011-06-14 Are Shrinking Back-up Windows a Discovery Risk? Twice in the last month, I have monitored client enterprise system issues that were caused by ever-expanding back-up time. Now generally I am not down in the pits with the admins wrestling to keep massive communication, archiving, etc systems stable any more. However, I have recently been asked to serve as the corporate 30(b)(6) witness on enterprise systems. That means I need to understand their history, architecture and to monitor their ongoing health. Back-up windows have always been a necessary evil for enterprise systems that constantly ingest new documents. There are many replication and live fail-over systems that avoid taking systems off-line, but old fashioned tape back-up seems to dominate my client base. This means that legal searches, placing holds and retrievals are effectively stopped 4+ hours per day. The impact of a 15-25% productivity loss becomes all too clear when trying to give clients a realistic estimation for large PST migrations, archive conversions, legal hold initiatives and even critical case productions. Imagine telling the U.S. Attorney that their data will be another couple weeks just because we have to back up the system every night.
2011-06-10 McDermott Sued Over Outsourced Review A new eDiscovery malpractice lawsuit was filed this week, J-M Manufacturing v. McDermott Will & Emery. The central issue is the production of 3,900 privileged documents in a 250,000 document qui-tam investigation. Nate Raymond at gives a good summary here. This case was definitely the hot topic at last night’s Houston b-Discovery social meeting. In reading the complaint, a couple things jumped out at me.
2011-06-02 Moving Your ESI to the Cloud? One of the first questions from Jason Velasco, the new eDJ CEO, was, “Any particular reason that eDJ is still on POP3/IMAP for email?” This may sound like techno-jargon, but he was asking why we were still thinking like solo practitioners in this age of cloud based solutions. Traditionally, running a Microsoft Exchange or Lotus Domino server has not been worth the time and expense for most small businesses when most web hosting companies will route your email for free. As an old developer with half a dozen domains still hanging around, this free email routing via POP3 or IMAP protocol made sense. For a growing business with geographically remote users, it does not support our requirements for shared calendars and other collaboration tools. More importantly, my recent hardware loss was a personal wake up call to the fact that even solo practitioners should consider moving to synchronized cloud storage to enable universal search, access and security. I cannot count the times that I have had to send damaged attorney drives to Kroll or a friend with a clean room.
2011-05-23 Symantec Buys Clearwell #2 – Customer Impact? Expanding on Barry’s fast reaction, what will Symantec’s acquisition of Clearwell for $390 million mean to the existing Symantec/Clearwell eDiscovery customer base? Many companies with Enterprise Vault and Discovery Accelerator already utilize the Clearwell appliance for processing, ECA and review, whether on site or through a hosted provider. For them, it may mean breaking the volume based (per GB) licensing model that has dominated our market for far too long. The Symantec Information Management Group (in which I was a Product Manager) has dominated the email archiving market and recently added the Discovery Collector appliance to enable corporations to search, preserve and collect directly from unstructured ESI sources not being actively archived. Clearwell was the earliest partner to leverage the Discovery Accelerator API to import archive search results directly into a processing and review platform back when I was the Product Manager. So there is a long standing synergy between the product suites, although there is also functional overlap that will need to be clarified for prospective customers.
2011-05-17 K&L Gates Premier eDiscovery Practice Group Jumps to Reed Smith This has been the year for corporations shifting to eDiscovery readiness. We have seen few big announcements from the AmLaw firms regarding large technology investments, hiring industry personalities or building out eDiscovery practice areas. Today’s articles from The AmLaw Daily and put law firm eDiscovery back on my radar. David R. Cohen, leader of K&L Gates eDiscovery practice group has moved to Reed Smith’s Pittsburgh office and taken 14 attorneys and staffers with him. The K&L Gates eDiscovery Analysis and Technology (e-DAT) Group currently lists 42 professionals, but I am guess that the 30% actually represens the core of dedicated, experienced personnel. Going back in time to the big Microsoft anti-trust cases, this practice group reflected Preston, Gates & Ellis’s (original firm as I knew them) dedication to never lose a case based on technology or eDiscovery process. The groundbreaking analytic review interface by Attenex (acquired by FTI) was founded by the firm and leveraged by the e-DAT group to review huge collections. This background should help you understand the impact of the jump to Reed Smith.
2011-05-12 LiveOffice User Conference Keynote – Impact of eDiscovery in 2011 For the first time in many years I am missing the EDRM Kickoff Meeting in St. Paul. Kevin Esposito is covering the project updates, goals and progress for us, but it still feels strange to not be anchoring a project meeting, even if I will continue to co-lead the new Testing project. Instead, I delivered the keynote to the 2011 LiveOffice user conference this morning. LiveOffice is the leading cloud email archiving company (Gartner 2010) and has had pretty incredible growth throughout the recent economic downturn. They asked me to speak to the attendees about the impact of eDiscovery on IT in 2011. This meshed well with their roll out of their new version of Discovery Archive. In polling the attendees, every single one had carried out discovery requests within the last year. Fifty percent were executing requests for Legal, while the rest allowed Legal to execute their own searches. Only a small portion were actively reviewing matters on the live data, but I could see the heads nodding as we discussed the prospect, it is definitely on the horizon for many of them. To organize my thoughts, I wrote a condensed speech (below) covering the primary points that I wanted to hit. The reality is that I can never resist opportunities to answer questions and transform a monologue into a dialogue.
2011-05-06 So When Was This Spreadsheet Altered? All of us techies are familiar with strange computer requests from friends and family. I had one today from a good friend in the middle of a business dispute that got me thinking about what we now take for granted in civil discovery. The key question boiled down to, “So can you tell if this Excel 2007 spreadsheet was created or changed right before being sent?” I’m staring at the email with the attached spreadsheet and knowing that my friend will not like the answer. It only takes seconds to check the internal properties and see that the spreadsheet was created three months ago, but modified just prior to being emailed. But what does that really tell us? Not much. The sender could have popped open the original spreadsheet to recheck it and then hit save instead of just closing it. Without the key file system metadata that would have been acquired with any proper discovery collection, there was just no good answer for my friend. Friends, family and counsel all seem to expect that we will be able to do some kind of technical CSI magic to reconstruct every instant of a file’s life. Reality is that improper collection or preservation can effectively destroy any chance of being able to actually authenticate critical properties like dates, authors and more.
2011-05-03 eDiscovery Now Part of Enterprise Strategy – Symantec Vision 2011 This morning’s keynote speech by Symantec CEO Enrique Salem had several interesting take-aways for those of us focused on the intersection of legal and IT. Legal discovery was mentioned in the first 5 minutes as a key business requirement. That means global software companies now see eDiscovery and Information Governance as a market driver, not just a niche area. I remember having to do eDiscovery 101 talks with execs back in 2006 to explain the purpose of the software company that they had just acquired. So I see this as FRCP to market driver in a short 5 years. The eDiscovery market and industry as a whole has grown incredibly quickly and is still immature in many ways. Symantec started the eDiscovery acquisitions in 2001 with the Veritas/KVS merger. EMC, IBM, Iron Mountain and others have followed with acquisitions of Stratify, PSS,Kazeon, Mimosa, Legato and other products that are directly or indirectly used for eDiscovery.
2011-04-22 Do Your Execs Use a Company iPhone? I hit on a couple articles today that raised awareness on yet another mobile device security issue, this one applies to all the iPhones and iPads with active GPS. A little deeper digging uncovered an excellent forensic discussion and rebuttal by Alex Levinson that details his own research, paper and even forensic software that has been available for some time. The primary issue is that the Apple iOS has been storing your unsecured location history within different file locations since GPS enabled iPhones were available. The only way to prevent this slow accumulation of time-location information is to turn off your Location Services. Although this information has been available previously through the Lantern 2.0 application from Katana Forensics LLC, it is now accessible via a free open source utility called the iPhoneTracker. The June 2010 iOS 4.0 release by Apple moved all the diverse tracking information into a new Consolidated.db central location that is easier to access.
2011-04-19 Do You Know Where Your Laptop Is? In my long career, I have had to explain client’s data losses to regulators, prosecutors, hostile experts and angry judges far too many times. It makes you paranoid about encryption, backups and other recovery efforts. Even the best of us can get so busy that we forget to kick off that simple process. In my case, I had gotten in the habit of full backups the night before every trip, which should have meant a week’s loss at most. That meant that I got out of my Friday back up habit. Now that we are actively conducting research projects, I occasionally get as much as a month off the road. See where this is going? I didn’t. Turns out that a month is long enough to break even long standing habits. I hope that the punk who smashed-n-grabbed my encrypted hardware gets what is coming to him. This whole exercise got me thinking about recovery and remediation when you have hardware or data loss while under hold.
2011-04-13 Is ECM the Death of Service Providers? At the IPRO Innovations 2011 customer conference in Phoenix last week, I participated in an excellent panel discussion focused on the potential impact of large enterprise ECM and archiving platforms expanding into the eDiscovery lifecycle. Panelists Ronald Sotak of Ryley Carlock & Applewhite and Olivia Gerroll of Esentio brought excellent if divergent perspectives. The first thing to realize is that the majority of our audience consisted of IPRO channel partners, i.e. eDiscovery service providers. Some service providers are threatened by global software companies’ recent push to incorporate eDiscovery features into enterprise platforms. Specialty markets like eDiscovery can be eroded when their services are absorbed into normal corporate business processes. So the real question was, “Will in-house software platforms replace the vendors?”
2011-03-29 Custodial Email Preservation – Email Infestation Email is everywhere. We are seeing a lot of corporate clients making the transition from preservation notices to actual preservation/collection systems. Whether using an email archive, collection appliance or search software with connectors into Exchange, the IT administrators tend to interpret Legal’s custodial preservation request very literally. They still see email in the Mailbox model. When assessing the existing preservation process (if any), I almost always find gaps and unmanaged sources that slipped through the net. Public companies that have been around for more that 3-5 years have gone through M&A activities, RIFs, bankruptcies and other corporate wide reorganizations that leave ESI skeletons in the corporate closet. I have blogged recently about the tendency to create corporate digital landfills, but the recent string of preservation sanction cases has reaffirmed the need to know where your email hides.
2011-03-24 The Risks of Reusing Wiped Media for Productions I try to read the actual opinions on cases that providers seize onto. Many times the actual fact pattern and conclusions are subject to interpretation. More importantly, there are often little facts or findings that are fascinating. In the case of Rosenthal Collins Group, LLC v. Trading Techs. Int’l, No. 05 C 4088, 2011 WL 722467 (N.D. Ill. Feb. 23, 2011), I chased down this rabbit hole to figure out exactly who had reset the last modified dates and why. The summaries all mention the plaintiff’s “agent” and I expected to find a service vendor, IT contractor or even a hard up consultant in the actual opinion. Instead, I found a tech savvy programmer/contractor/custodian who used utilities to forensically wipe all of his media and then reset his dates by changing his system clock. Bill Tolson’s blog title, Spoliation does not require purposeful destruction of evidence, focuses on District Judge Coleman’s $1,000,000 sanction and clear statements that the plaintiffs were responsible for their agents actions.
2011-03-16 Legal Hold Notices Reach eDiscovery Platforms A common theme through products making the jump from processing engine to eDiscovery platform is the bolting on of a legal hold notice module or wizard. Hold notices are the official kick off of the eDiscovery tailgate party. When I created the first incarnation of the eDJ Tech Matrix back in 2009, only Atlas (now acquired by IBM) and Exterro offered a full featured workflow with a database back end. Some of the matter management players could send emails, but none had any market recognition for that limited functionality. I had many corporate clients consider these relatively high priced specialty applications, but only those with relatively heavy litigation/regulatory profiles or very low risk tolerance implemented them. Many of my corporate clients created home grown workflows with a single web, Sharepoint or SAP-type developer. Still, these two specialty players both gained steady market share and added rich features to support corporate legal management of preservation efforts. Just in time for Legal Tech NY 2011, I saw the basic hold notice workflow show up in AD eDiscovery, kCura Method, StoredIQ, Guidance EnCase eDiscovery and many more. A quick check of the eDJ Tech Matrix shows 25 products with legal hold notice functionality today and I will bet that this blog reminds several more to update their listings.
2011-03-11 Corporate Digital Landfills? The phrase ‘digital landfill’ seems to resonate with clients. Most have been in a state of analysis paralysis concerning email and native file destruction since the 2003 Zubalake decision. Many have never had any kind of real retention policy or workflow that would enable or encourage users to clean up their digital trash. Yep, I just called all those spreadsheets, presentations, reports and other ESI flotsam and jetsam cluttering up your NAS trash. The combination of the 2002 criminal Enron investigations and Judge Scheindlin’s decision effectively froze record destruction in energy trading companies. At the time, I thought that the combination of plummeting storage costs and the potential of criminal charges from the 2002 Sarbanes-Oxley Act meant infinite retention for public corporations. Time and common sense disproved that notion, but I am now seeing corporations flinching from the last decade’s worth of digital debris littering their enterprise landscape. The user’s capability to create ESI far exceeds our ability to effectively categorize, manage and expire.
2011-03-07 Eliminating Those Pesky PSTs I cannot count the times I have heard something along the lines of, “I just want to wave a magic wand and make all those bloody PSTs go away.” I heard it again just last week. At least this time the speaker was well along the actual process of migrating the email so that the PSTs could be disabled and done away with. You could use an email archive platform, Sharepoint, ECM system or even Exchange 2010 (just watch out for the storage balloon!) to manage and expire email designated as corporate records. Pick your poison, but you still have to deal with the years of accumulated email that your users have stashed in all those handy Personal Stores (.PST and .OST files). Many categorization technologies have promised to magically designate items as records and cull out all the dross. I have yet to see one deliver on real, heterogeneous legacy email outside of very structured environments where users already have to manage communications and documents. Typical corporate goals include the defensible destruction of non-essential email, central management/search of designated records and minimization of eDiscovery/infrastructure costs. I wanted to share some of my lessons learned from past PST elimination projects, both successful and the rescue attempts.
2011-03-02 Index Size: What Price for Search Features? I recently finished a research paper that takes an overview of Enterprise Search for Discovery. My intent was to aggregate, organize and condense corporate client discussions around this area over the last year. Enterprise search and preservation collection platforms are the second most frequent technology RFP engagement for my corporate clients after archiving systems. The technology providers have many different approaches, architectures and features that can confuse the prospective buyer. After having the same discussion so many times, I decided to put together a low cost ($29) overview report to at least define the options, potential benefits, costs and things to consider before investing in enterprise search. Enterprise search tends to fall into two main indexing camps, selective vs. enterprise wide. One element from the report is the potential index size, as indexes like to live on Tier 1 class storage (SAN, Direct Attached or other top class storage).
2011-02-28 Handling BCC Recipients in eDiscovery Everyone knows how to send an email and Blind Carbon Copy (BCC) certain recipients separately from your public TO/CC recipients. I responded to a recent question on the Yahoo! LitSupport list regarding the best practices for production of email with BCC information. My response kicked off several offline questions about the actual nature of BCC information, preservation of such information and deduplication of email with/without BCC recipients. I have had to wrestle with this from an audit and a product development perspective several times, but it seems worthwhile to try to write a decent overview of BCC and eDiscovery.
2011-02-24 Kevin Esposito Joins eDiscoveryJournal We are pleased to announce that independent eDiscovery counsel and consultant Kevin Esposito will now be contributing blogs as an eDJ Expert. For those of you who have enjoyed listening to his unique presentation style at conferences, EDRM Committees, Sedona and other eDiscovery gatherings, we know that you will continue to enjoy his direct and uncompromising perspective. Kevin brings with him over 12 years of eDiscovery experience, having managed the litigation support and IT infrastructure operations within global Fortune 50 corporations. While on the corporate side of the house, he became well known for his technology leadership in the logistics world and his efforts at redefining litigation support processes in the pharmaceutical industry. For the past five years, however, clients in those areas as well as the manufacturing, financial services and entertainment sectors have been quietly relying on his operational and legal guidance as an independent discovery counsel. He has forged a unique niche by helping companies and law firms to meet their joint discovery obligations by combining the talents of the client, support vendors large and small and the judicious application of many of the popular litigation support tools and technologies. He and his team have learned how to help companies safely and successfully negotiate the eDiscovery minefield through their daily contact with vendors, staffing groups and technology suppliers. He will assist our eDJ readers by providing a pragmatic view of issues large and small, both legal and personal. I have had the pleasure of partnering with Kevin on consulting engagements covering litigation system audits, RFP generation and management and eDiscovery/Records Retention lifecycle projects. He brings both operational experience and a slightly different personal focus to our blogs and research papers. Kevin can be reached here at We hope you that you enjoy his contributions.
2011-02-21 New eDiscovery Billing Codes from Ledes Committee As eDiscovery transitions from fire drill to business process, corporations and law firms are struggling to measure and manage the time and cost associated with the EDRM lifecycle. Up to this point, we have only had ONE standardized billing code in the ABA’s Uniform Task-Based Management System (UTBMS) litigation codes, L390 Other Discovery to be exact. Last year, the Legal Electronic Data Exchange Standard Oversight Committee (LEDES) reached out to the EDRM Metrics Project to participate in the formation of a revised set of new L600 series UTBMS eDiscovery billing codes. The draft code set has been posted to the LEDES site for comments until May 2nd. I highly encourage you to review the new codes and to contribute your perspective.
2011-02-14 LTNY 2011 – Buckles eDJ Briefings Wrap Up We did a lot of roadmap briefings in New York. This should wrap up the companies that I felt had something interesting to present. Wave software recently acquired the solo product, iFramework, to add legal hold notices and matter workflow to Trident. The new Wave Software Solution platform should be able to better manage and synchronize multiple sites. Wave is in line with the hold management trend that emerged at the show for platforms looking to add easy functionality. AccessData and Guidance are examples of collection platforms that have added legal hold notices to their latest releases. Returning to Wave, they continue to sell primarily to firms, but say that they are starting to make consistent sales growth to corporations. Wave is betting on the decline of Tiffs and is ‘staying native’ for the time being.
2011-02-10 LTNY 2011 – Buckles eDJ Briefings Take 2 Continuing my high level take-aways from my roadmap briefings at LegalTech NY 2011. Predictive coding was one of the hot topics at this show, but it seemed to mean something different to every provider. There is enough confusion around the issue to merit a solid research topic for eDJ in the upcoming months. I know that The eDiscovery Institute is looking to do a comparative research project on predictive coding in 2011-2012, so we can look forward to some hard numbers going into next year from them. On to the provider updates:
2011-02-08 LTNY 2011 – Buckles eDJ Briefings Take 1 In some ways I feel like I missed out on parts of Legal Tech NY 2011. My focus this year was to fit in as many roadmap briefings as possible. The sheer scale and audience focus of LTNY has forced providers to plan major product releases and announcements around the show. Product managers would ask me, “Didn’t you see our press release?” Even if I saw it, there were so many in the eDJ search queue that I could not remember them all. So instead of keynotes, sessions, panels or even the exhibition floor, I spent virtually all of my time hearing about the very latest products, features and where the providers think that eDisovery is going this year. With so many briefings, I am going to stick to short summaries and high points. There were quite a few providers who did not have a coherent message or any new functionality significant enough to mention. On with the fun.
2011-01-25 New eDJ Tech Matrix Ready for LTNY 2011 Legal Tech NY 2011 is less than a week away. It just so happens that we launched eDJ at LTNY 2010, so we have been working hard on some new tools. We have completely rewritten my old eDiscovery Application Matrix and transformed it into the eDJ Tech Matrix. The most noticeable immediate change is our new capability to compare individual applications or features across entire company offerings. The eDiscovery market is still relatively young and it is dominated by start-ups with a single software offering. However, we have seen acquisitions by global technology companies such as Autonomy, EMC, Iron Mountain and IBM. That means you might want to see how an individual product compares AND then see all the features offered by a company. Up till this point, the roughly 100 applications in the Tech Matrix had been submitted exclusively by users and the providers.
2011-01-20 Outtakes from the Gibson Dunn 2010 eDiscovery Update Keeping track of eDiscovery decisions and untangling their relative scope, merit and potential applicability is not easy, even with eDiscoveryJournal’s search engines watching the web. Gibson Dunn has published their 2010 Year-End Electronic Discovery and Information Law Update covering 323 decisions, up over 60% from the 2009 eDiscovery decisions (200 cases). Besides calling out the report as a good resource, I wanted to comment on some of the statistics and specific cases.
2011-01-13 Discovery Search in Exchange 2010 - Good Enough Or Not? Now that my full research paper is complete and available, I wanted to share some highlights. Just yesterday I had another GC client tell me that their IT department wanted to rely on their upcoming upgrade to Exchange 2010 to respond to discovery requests. Microsoft has added some good new features, but I would not want to try to defend their use against any kind of adverse scrutiny. So let’s talk about the new ‘Discovery Search’ interface. First and foremost, this is basically the old administrative multi-mailbox search within the OutlookWebApp. The search name and criteria are written to a database table along with the user, date, size estimate and some keyword statistics. The last is a good feature that was undoubtably driven by a customer request to support keyword negotiations. Here is a look at the landing page:
2011-01-10 Proximity Search Challenges in eDiscovery Searching for a single term within a document is pretty black or white. It is either present or not. When you step up to searching based on phrases, proximity terms, concepts and compound term clusters things start to get a bit less absolute. Yet, simple lists of terms are generally either overly broad or are missing relevant ESI. The simplest search index does not store information about the position(s) of terms within a document. Modern search indexes such as Lucene, FAST, IDOL and others rely on term position and other information to derive clusters of two or more related terms (concepts) and relevance weighting factors. During a recent briefing call with Mike Wade, CTO of Planet Data, we delved into some of the challenges that Planet Data faced expanding their Exego Early Cost Assessment platform to support concept search and ECA workflow. What really caught my attention was the ability to extract two separate versions of the text from documents, both the raw unformatted text AND the rendered view. Alternatively, they have developed a merged rendering that embeds the extracted object text in-line with the viewed text.
2011-01-03 eDiscovery Tech Trends of 2010 Barry’s reflections on the 2010 market space got me thinking about last year’s technology trends. We saw a lot of privately developed review platforms rolled out with different licensing models, but I wanted to figure out what was fundamentally new and different. No. 1 ECA = ESI Access Well before LTNY 2010, the marketing machines began to hype Early Case Assessment (or Early Data Assessment) as the new eDiscovery usage case for corporations and law firms. But what is the fundamental function that enables ECA/EDA? I posit that it is the ability of a relatively non-technical user to directly access ESI, whether in the wild or from a collection. This basic marriage of search indexing and a review GUI gave Clearwell a big jump on the market, followed closely by StoredIQ, Kazeon and a host of others. Effectively, we are foreshadowing the ‘death’ of processing as a separate EDRM phase. My main concern about merging processing into a one-click function is that it can over-simplify complex options and bury exception handling. As long as users understand the different quality requirements for Identification/Investigation versus the actual discovery request, ECA/EDA tools are here to stay.
2010-12-28 White Papers through Tinted Glasses So what is a ‘white paper’? Wikipedia says that they are authoritative reports or guides on a specific issue, which sounds great. Just ‘below the fold’ on the definition we find that since the 1990’s ‘commercial white papers’ have become marketing or sales tools designed to promote a specific company’s solutions or products. I think that the eDiscovery market is cynical enough to understand the embedded perspective of most white papers. This bias or perspective does not invalidate the content of good papers, but it does force the reader to filter and interpret carefully. Don’t get me wrong here, I have contributed my share of commissioned white papers to the body of eDiscovery perspective. Every one was a bit of a struggle with the ‘client’ to keep my content free of market messaging. It was exactly this kind of ethical and professional conflict that drove us to create eDiscoveryJournal in the first place.
2010-12-20 Exchange 2010 Does Away with ExMerge Utility While conducting my discovery scenario testing on Exchange 2010, I found that Microsoft had made two steps forward along with what seems like several strange steps back. In the early days of corporate networks, personal computers and enterprise software, administration was reserved for wizardly geeks who had mastered various esoteric command line languages. I recall the blessed feeling of relief when I stumbled through my first administrative GUI (Graphical User Interface). The admin GUI brought mastery of systems and applications into the realm of the merely mortal user. When evaluating software, I tend to view applications that force the user to learn command switches and syntax as immature. As a counterpoint, I acknowledge that the command line functionality is fantastic for an advanced user to run batch scripts or even automate functionality. When I first looked at Exchange 2010 SP1 Beta (only version available at the time), I was astounded to find that they had killed off ExMerge, the administrative utility used for years to import and export PST files from mailboxes.
2010-12-16 So Who Owns Review? Barry’s article, “Who Owns eDiscovery?” focused on the challenges of corporate investment in the overall eDiscovery process without clear ownership between IT, Legal, Compliance, Records Management and even the business units. It occurred to me that there is an entirely different ownership battle being waged over who is actually managing and performing the actual document review. The law firms have traditionally owned the review process and born the risk of inadvertent production of privileged and unprotected confidential documents. With eDiscovery slowly evolving from an ad hoc reactive fire drill into a managed business process, corporations have begun to take back the upstream or ‘EDRM Left’ phases of the eDiscovery lifecycle. This is happening at the same time as public corporations are experimenting with Business Process Outsourcing (BPO) and SAAS solutions for infrastructure and internal services.
2010-12-07 An Offensive ESI Sampling Strategy In the normal course of business, I am excited to see EDRM project content incorporated into caselaw, articles, research and by other experts in eDiscovery, especially when it is a piece that I contributed to. In a recent piece titled “A Strategy to Sample All the ESI You Need” attorney Nick Brestoff leveraged Section 9.5 of the EDRM Search Guide to propose forcing the opposition to produce samples of ‘irrelevant or nonresponsive’ ESI. His proposal is a stark reminder of the adversarial nature of our business. As one of the primary contributors on the validation sections of the Search Guide, I can assure you that I envisioned the producing party using sampling and the other methods to maximize precision, accuracy and completeness of discovery searches. I agree with Mr. Brestoff’s demand that parties disclose the scope, confidence levels and criteria used to sample. However, he basically challenges the producing parties ability or right to determine relevance and presents ‘three easy steps’ to demand all ESI not produced. That seems to effectively negate relevance review completely and excludes only duplicates, system files and privileged ESI.
2010-11-29 What can LitSupport teach the TSA? Consultants and analysts fly a lot. It is part of the job, but not a part that I particularly enjoy in this age of overbooked flights and mandatory security theater. I am lucky enough to have the flexibility to push several December engagements into January so that I do not have to fly while the new security procedures are debated. I like to think of it as waiting for the first service pack instead of upgrading to a new full release from Microsoft. So how does this relate to eDiscovery? Think of the TSA screening process as a search and review challenge. You have millions of unrelated travelers (substitute email here) with a very few bad actors that have to be identified and acted on. This is remarkably similar to what a corporation with an immature eDiscovery process goes through with any major case. The TSA is in the same position as the corporation’s law firm. The corporation dumps millions of email on the firm and then makes the senior partner (politician) responsible for any privileged or trade secret email that accidentally leak through the review.
2010-11-22 eDiscovery Market Consolidation My September post looked at the provider sponsorship of Legal Tech New York from 2008-2011 as an indicator of the how our industry has reacted to the economic recession. At the time, I noticed quite a few players who had either quietly disappeared or been acquired in the last couple years. Merger and acquisition consolidation is a sign that eDiscovery is maturing and integrating into the larger corporate technology market. I thought that it would be interesting to make a quick roll call of software or service providers that have either disappeared or been acquired since the recession put the squeeze on the market.
2010-11-16 Expert Discovery – FRCP Rule 26(a)(2)(b) Amendment On December 1, 2010 new amendments to Rule 26 of the Federal Rules of Civil Procedure governing expert witnesses go into effect. Ever since 1993, testifying experts in Federal cases have had to carefully manage all drafts and written communications with counsel in the expectation of having to produce everything to the opposing counsel. This directly contradicts that usual assumption of attorney work product privilege protections and has led to inadvertent waiver and dramatically higher fees. It is just more efficient to send early comments on depositions, questions for fact witnesses and such via email than it is to have to leave a message and then schedule a conference call. Moreover, I would generally not bill for a quick email question while I have to recoup the time for these calls. Most technology savvy experts have had to adapt work practices to minimize the creation of discoverable documents. They will overwrite the same report instead of creating draft versions, read paragraphs over the phone instead of sending early opinions, use Webex to preview demonstratives and generally leverage collaborative technologies that do not actually generate email.
2010-11-09 eDiscoveryJournal Update While reviewing the hundreds of new blogs and stories found by the eDJ search engine over the weekend, I realized that we had reached 5,000 stories in just 9 months. That translates to almost 600 unique news or opinion pieces per month after we screen out the thousands of reposts and odd environmental stories that happen to mention “Chain of Custody”. Looking back, it appears that the number of blogs and stories have been steadily growing since my May post on the new user customized RSS feeds and home page display. We were clearing about 20 stories per day back then and I know that we have gotten a lot tougher in the screening process. The eDiscovery market and the legal system that it supports has definitely been warming the recession chill of 2009.
2010-11-05 Cracking Office Open XML Files We all know that Office 2007 and later files are a different file format from your traditional DOC/XLS/PPT files, but I thought that it was worth exploring them with an eye on their potential impact in eDiscovery activities. First we need a simple explanation of what changed from Office 2003 to Office 2007 formats. Prior to 2007, Word, Excel and Powerpoint files were each proprietary binary file formats that required the application or a viewer to open. Office 2007 adopted an XML-based file format called Office Open XML that uses a common set of XML files within a compressed Zip container. These Extensible Markup Language (XML) files are simple text files that resemble HTML. The files now have an X or M added to their traditional file extensions to indicate whether they are flat XML or if they have embedded macro content. So DOC, XLS and PPT have become DOCX/DOCM, XLSX/XLSM and PPTX/PPTM. There are many advantages to the open formats, but we will focus on the potential discovery impact.
2010-11-02 Copyleft Rights in eDiscovery Applications? Corporations continue to acquire eDiscovery technology as they slowly convert from reactive fire drills to proactive business processes. The majority of early eDiscovery processing and hosting platforms available to service providers carried a relatively high per GB license cost. This model drove many service providers to develop their own software to remain competitive when prices suddenly dropped from $2,000 per GB down to the current $400-600 per GB. Now many of these providers have packaged their toolboxes into commercial software and are trying to convert service customers to software sales. All of this gives buyers an overabundance of choices when creating an RFP. It certainly keeps me busy with briefings and demos of new products every week. An offhand remark from a savvy CTO sent me digging into the potential pitfalls of some current open source General Public Licenses that work on a Copyleft or pay it forward model.
2010-10-26 So Where Do I Start with eDiscovery? I was recently asked if I had a top ten list of guidelines are questions for a corporate legal department who is just starting to look at investing in some kind of information management, archiving or discovery solution. Although I do a lot of requirements and RFP engagements, I am usually brought in after the internal committee already has some idea of what they want. However, I frequently encounter clients that have latched onto a solution label without a true understanding of their own key pain points or what it will take to realize the ROI promised by this new technology. First and foremost, these corporations are already ahead of the curve because they have recognized the need and have made the decision to do something about it. Rather than trying to tackle all the different options and issues that span the different technology solutions, I want to limit this discussion to eDiscovery related technology, mostly because I believe in sticking to what I know best.
2010-10-20 eDJ's EDRM Midyear Meeting Report The Electronic Discovery Reference Model (EDRM) projects meet twice a year in St. Paul for a couple days of concentrated work. This year’s gathering feels a bit smaller than year’s past, but all the projects seem to be making good progress. There were a good number of new, first time participants from law firms and corporations, reflecting the growing number of dedicated eDiscovery managers and specialized counsel. After a short status report from the project leaders, everyone adjourned to their chosen projects to work.
2010-10-19 Email Deduplication, What Does It Really Mean? A recent post to the Yahoo! LitSupport group asked whether there were any published standards covering email deduplication hashing. The problem is more complicated that it appears on the surface. As several other search experts commented, the definition of a duplicate email and the actions that you take will vary based on the jurisdiction, matter issues and party demands. Under FRCP Rule 34(b), the requesting party may define the format of production within the scope of the Rule 26(b) and the terms of your Rule 26(f) negotiations. Both rules provide some exemption for duplicative productions, but there are arguments that can be made about deduplication within a custodian’s email or across all custodians.
2010-10-15 Nearpoint: Adapting When Microsoft Changes the Rules One of the things that I love about publishing is the chance to be wrong and learn something new. Our industry and the technology that drives it is changing at an amazing pace. In the closing of my recent post about using Exchange Journaling for ongoing preservation, I mentioned the potential advantages of Nearpoint’s granular capture over Journaling as well as the monkey wrench Microsoft threw at them a couple years back. Indeed, Microsoft does not support parsing or extracting email from the Exchange database and transaction logs, except through a specific set of protocols. They phased out support for one of the generic protocols, ESE or Extensible Storage Engine API. This forced 3rd party vendors to either adapt or try to take full responsibility to their customer’s Exchange systems.
2010-10-08 Ongoing Preservation: Is Email Journaling Right for You? As corporations invest in the business process of litigation preparedness, many wrestle with the options for ongoing email preservation. I thought that it might be worth a quick look at some of these options and some potential issues that different methods pose. The first choice is whether the preservation method is user driven or an automated system. We all have heard the horror stories about user non-compliance. In Re Hawaiian Airlines is a good example and this U.S. Courts conference paper provides some context. However, a well implemented and documented user driven legal hold process may be the right solution in many circumstances. When you have a small number of key custodians and the matter relevance criteria is very clear, it may be reasonable to allow custodians to keep emails in a special folder. Automated systems have their own issues, the main one being overly broad or inaccurate preservation criteria.
2010-10-01 Corporate Usage Policies: Balancing Risk Against Reality While reviewing this morning’s eDJ web findings, I came across a good case analysis by K&L Gates regarding a privilege waiver issue in DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010). The actual opinion seems to only be available through Westlaw at this time, but the analysis of the fact pattern and findings are worth a read. An eDiscovery consulting firm employee used his work computer to send privileged email to his own counsel. These emails were later produced in the computer image and the subject of the waiver dispute. The decision pivoted on the question of how the employer interpreted their computer usage policy. This particular case highlights the inherent conflict between the U.S. corporate usage policies and employee privacy.
2010-09-28 LegalTech 2008-2011: Measuring the eDiscovery Recession Officially, the U.S. recession started in December 2007 and ‘ended’ last June. Unofficially, we all know of talented people who are still looking for work. Anecdotally, the eDiscovery market seemed to bottom out in the third quarter of last year. I know that I saw a lot more resumes floating around LegalTech 2010 than in previous years. That led me to wonder who had closed shop or been acquired in the last couple years. I figured that one of the better ways to chase this list down would be to compare the LTNY Exhibitor lists from year to year. This exercise turned up some interesting numbers and facts.
2010-09-23 Fedex Wins eDiscovery Cloud Wars While pontificating on industry trends at ILTA, I joked that Fedex was the ultimate beneficiary of corporations that take their eDiscovery to the Cloud. Scant weeks later, my good friend Pete Pepiton at Mimecast responded to my ad hoc remark with the headline, “Fedex’s Profit Doubles”. We have had various Secure File Transfer Protocols for years, yet the practical bandwidth limitations of most internet transmissions have taught us not to try sending more than 5 GB of files via the web. In plain language terms, the web was just not designed for the kind of large file burst capacity transfers that typify an eDiscovery collection. There is a good discussion of these limits by Stacey Higginbotham here.
2010-09-17 ILTA Snapshots – Part III – That’s a Wrap! Here is the last batch of takeaways from my briefings at the recent ILTA 2010. I have been able to schedule deep dives on some of the new offerings, so I hope to bring you more details on the new toys.
2010-09-14 ILTA Snapshots Part II In order to keep my ILTA feedback as fresh as possible, I have decided to try a combined post that just pulls the highlights for a number of the providers that briefed me at the conference. I expect to follow up most of these highlights with a more in-depth piece after the full demo. I have pretty much given up on trying to do full product demonstrations at conferences. You just do not have the time to do them justice in the midst of the hustle and bustle. Nextpoint brings a true Saas/cloud offering to the market with their Trial Cloud, Discovery Cloud and Cloud Preservation web products based on Amazon web services. Their $25/GB/month flat pricing definitely challenges the established players and makes an interesting option for small firms or companies with matters below the usual hosting cost/benefit thresholds. My experience with raw internet transfer limitations says that Fedex will be making a lot of money for matters over 5 GB in size, but everyone seems to be used to shipping hard drives these days anyway.
2010-09-09 ILTA Snapshot No. 1 – IPRO Allegro At the recent ILTA 2010 conference I managed to get briefed on quite a few new product offerings. I wanted to pass along the highlights quickly to keep them timely. I may follow up some of these snapshots with full deep dives, but I will stick to the high level takeaways. Let’s get right to it. IPRO is finally taking some strides toward integrating products into a single platform that share the Eclipse database backbone. They have released an ‘Early Data Assessment’ application named Allegro built on Windows Presentation Foundation for a dynamic, better interface and a completely new processing engine. IPRO conservatively estimates 250 GB per day on a laptop or up to 750 GB on a workstation, all without exploding or copying email or file containers. IPRO sells software, not appliances, so performance will vary with your hardware. Like many recent performance claims, the devil is in the details of the test collection and hardware. Providers seem to be very concerned with ingestion performance since NUIX broke the 1 TB per day threshold.
2010-08-30 EDRM Lowers the Threshold for Participation With so many professionals newly drafted into the complex, dynamic eDiscovery world, there is an ever-increasing demand for educational resources (OLP, ALSP), conferences (ILTA, ARMA, LTNY, Georgetown Institute), associations and materials from authoritative bodies such as The Sedona Conference and the Electronic Discovery Reference Model. Many years ago, George Socha and Tom Gelbmann (EDRM founders) began encouraging the participation of independent, corporate and law firm professionals with alternative membership options. I am happy to report that non-providers make up over half of the 2010 Metrics project when I stepped down as the project co-lead. All of this leads up to this week’s announced shift to an ‘EDRM Anniversary Membership Model’ for single or all project participation. The membership cost for an individual is just $200/year and $1,000/year for organizations with 10 or fewer employees. In consideration of the 2008-9 economic downturn and the consolidation in the eDiscovery market, EDRM will continue to waive the individual membership fees for anyone who has lost their job recently.
2010-08-27 The Product that Shall Not Be Named – Why Not? Now that ILTA 2010 has wound down, I have been reflecting on the striking differences between this educational networking event and the ‘big’ tradeshow , Legal Tech New York (LTNY). ILTA is volunteer-governed industry organization, although it is managed by a full time paid staff. It describes itself as a peer networking organization and that was certainly a large focus of the event including a heavy emphasis on social technology to forge new connections. This creates a curious blend of grass-roots community organizing within a tightly structured event agenda, somewhat like a national Scout Jamboree. The core value to “maintain vendor independence” includes an admirable “No Sales Pitch” rule for sessions and social events. I was handed a ‘No BS’ button to go with my speaker’s ribbon as a clear reminder.
2010-08-24 ILTA Impressions – A Call for Unity Despite being a regular speaker on the eDiscovery conference circuit, this is my first time making the ILTA conference. The theme of the conference is Strategic Unity, expressed in social networking, new education initiatives and collaborative technologies. As a volunteer run organization, the tone at ILTA does not have the same frantic vendor driven character as Legal Tech has taken on. My panel session on ECA usage scenarios and perspectives seemed to go well, but that is always difficult to tell from the other side of the microphone. The top moments included Tom Morrisey’s “Voldemort, the software that cannot be named”, Chuck Kellner’s violation of the vendor profit oath and the agreement that there is no “ECA solution”, only features that support your ECA process. Imagine my surprise when Jim King dragged me over to the IPRO booth to proudly show me the Allegro banner proclaiming “Early Data Assessment”. Please forgive the iPhone picture quality…
2010-08-18 ITLA, Counting Down to Vegas! If you have not heard, the Atlanta flooding forced the International Legal Technology Association (ILTA) to relocate to Las Vegas. The conference kicks off next week and I wanted to throw out some highlights to tempt you to join us. I invite everyone to my Monday panel “Early Case Assessment: The Benefit is in the Eye of the Beholder”. Duane Lites of Jackson Walker has recruited Tom Morrisey-Purdue Pharma, Scott Cohen-Winston & Strawn, Chuck Kellner and myself to represent different perspectives and scenarios on ECA.
2010-08-11 Can One Bad Apple Break Your Legal Hold? Elbow deep in a recent engagement, it occurred to me just how fragile most legal holds really are. A couple years back, one of my friends on the speaking circuit introduced me to a case that seemed to say that hold notification without some kind of verification process was insufficient effort. The case is In re HAWAIIAN AIRLINES, INC., Debtor. HAWAIIAN AIRLINES, INC., Plaintiff, vs. MESA AIR GROUP, INC., Defendant. Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF HAWAII 2007 Bankr. LEXIS 3679. The spoliation memo is located here. The lesson that I took away from Mesa’s experience with their data deleting executive was to notify then verify. That was a good starting point, but now I realize that this lesson extends beyond the matter level preservation requirements to include a company’s retention process.
2010-07-28 MerlinOne – Affordable Audio Search and Review? Every day new products and service bundles enter the eDiscovery market. I know this because of the constant feedback that we get from articles saying, “But we do that! Why didn’t you mention us?” The reality is that I cannot list every product that has guided search, conceptual folders, etc in every article. So I try to pick 3-4 example products with as much diversity as possible. I could have called out Stratify, Recommind and many others in my Guided Search article. The good part about all this feedback is the constant opportunity to be briefed on new versions and products. For many years, Autonomy and Nexidia have had the only enterprise level audio search built for discovery (and I am sure that I will now hear from others). The team at MerlinOne briefed me on their new hosted review platform going live in August. Lo and behold, their offering includes a new, fixed fee option for dealing with large collections of voicemail, meeting minutes and other audio/video collections.
2010-07-26 Ringtail Analytics – Moving Upstream in More Than One Way As some of you might recall, I briefly ran Attenex’s services group before the potential FTI acquisition reminded me how much I liked to work for myself. I always liked Document Mapper, aka ‘the Petri Dish’, and wanted to expand the usage of their conceptual clustering, social networking and other visual analytics beyond the review interface. The FTI Technology team has accomplished this by combining three products under the Ringtail Analytics brand. Even better, they are breaking free of the volume based licensing that has dominated the market for far too long. Corporations can purchase these add-on Ringtail modules via a traditional enterprise license. The idea is to apply a variety of analytics on the early assessment samples and against collections as large as a million items to support ECA, search creation, processing parameters and to optimize automated review sets management.
2010-07-22 Caselaw Survey – Do Sanctions Make Any Difference? The firm of Gibson Dunn has published a survey that covers 103 eDiscovery cases from the first half of 2010. To catch the overall legal implications, Ralph Losey has done his usual excellent analysis riffing on an Andy Warhol theme this time. I wanted to pull out some trend highlights and talk through the potential impact on corporate stakeholders who are struggling to implement a full eDiscovery process. Although there have been some large and well publicized eDiscovery sanctions going back to Zubulake v. UBS Warburg, the total number and cost of civil sanctions against the overall litigation scope has not been sufficient to compel most corporations to invest in defensible process. Corporate legal departments are a cost center. Corporate counsel must make risk versus cost decisions every day and the realistic risk of sanctions has not measured up to the cost of doing discovery ‘right’ for many or most companies.
2010-07-16 Introduction to Guided Search Almost every new processing or review application that I have seen over the last year has featured a left hand navigation window that enables users to dynamically filter the collection by Author, Date, Type and more. You can call this faceted navigation, guided search or browsing navigation, but it boils down to the user’s ability to actively browse/filter the collection by metadata characteristics and categories that have been extracted from the index. Although this seems like just another way to construct a search, this feature offers a lot more to the discerning user. In older platforms, users had to run reports on their collections to extract the summary population metrics across different fields. The first one that I recall was the Tally function in Summation. This could only be done one field at a time, but unlike most static reports, you could generate the tally numbers on a set of search results instead of the entire collection. Current review, processing and even archiving products like Clearwell, Relativity, Introspect and Symantec’s Discovery Accelerator can generate these hierarchical ‘facets’ across multiple fields and display the total and item level counts dynamically in real time.
2010-07-02 Can Daegis/Unify Spin Gold From Straw? The Daegis acquisition by Unify caught my attention this morning as I was coding the latest batch of news and blogs from the eDJ search engine. After the 2009 slump, I expect to see a string of consolidation and acquisition within the eDiscovery market. Knowing some of the talented folks at Daegis (including some of the best of SPI), I did not expect them to be acquired for a 1.5 multiplier. That was a shocker. Daegis reported $24 million in revenue with a healthy 27% profit for fiscal 2009. That was pretty good for last year. So why did they accept $38 million in cash, notes and stock? They are advertising it as a merger and taking the Daegis name, which indicates that they are going after the corporate eDiscovery market as opposed to the corporate archive or database support market. If that seems confusing, consider that Unify specializes in database management and migration software. Unify acquired AXS-One for $8 million in stock last June. AXS-One seemed to be struggling in the archiving market, which has been consolidating for a while.
2010-06-29 Desktop Collection 2.0 –Enterprise Forensics Part 2 In Part 1, we explored the basic methods of collecting from desktops in the large enterprise environment. The recent Delaware ruling of Roffe v. Eagle Rock provided a good context to discuss the potential pitfalls and necessity of custodial self-designation of potential evidence. That brings us around to the lowest risk/highest effort method, full forensic images of desktops. I want to be very careful here to differentiate a bit-by-bit image of the physical drive from the more commonly used ‘forensically sound copy’. A forensic image captures every one or zero across the entirety of the physical drive. This means that an 80 GB laptop drive will have an 80 GB forensic image, even if there are only 20 GB of files on it. A ‘forensically sound copy’ uses the operating system to capture the content (Hash verified) and the context (OS metadata) of selective active or deleted files. Now that we have made that clear, we can move on to enterprise forensic collection, which I am taking to mean the ability to collect a full forensic image without having to physically attach a write-block device.
2010-06-25 Don’t Give Up on Custodial Self Collection My very first Journal entry, The Myth of Custodial Selection, explored the very real discrepancy between what your designated custodians think might be relevant and reality. Now the Delaware ruling of Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010) seems to assert that custodian self-collection is inadequate and all collection must be done under the direct supervision of counsel. Barry Murphy tackled some of the potential implications and solutions in his article on Standardized Collection Workflows. I would like to assert the need for technology to enable custodial self collection or ‘custodial designation’ as an integral part of any preservation and collection effort. In my recent examinations of Enterprise Desktop Collection, Self Collection is the first and dominant methodology outlined. That is because even if you do a full forensic image of every desktop, I believe that you are still obligated to interview key custodians and ask them for relevant ESI. No one wants to try and explain why a reviewer missed a key document that your star witness knew was the smoking gun.
2010-06-21 Mining the Lehman Mountains – Searching 3 Petabytes Everyone talks about the ‘explosive growth’ of discovery collections. Every once in a while we get a glimpse behind the curtain at the sheer size and complexity of large matters. Browning Marean posed a question to the EDRM Search project that resulting in my wasting an entire afternoon dissecting the 511 page examiner’s report from In re Lehman Brothers Equity/Debt Securities Litigation, 08-cv-05523, U.S. District Court, Southern District of New York (Manhattan). Now I do love to geek out on metrics of all kinds, but what drives me is trying to understand the impact of numbers in context. In this case, we get to see the actual search criteria created by 20 Jenner & Block attorneys to find everything related to the downfall of the investment firm.
2010-06-18 Service Provider ROI in a Tough Economy Yesterday I was the guest speaker for the monthly meeting of Houston Association of Litigation Support Managers (HALSM). When we polled for topics of interest, the first request concerned how to position and explain the value and role of outside service providers to attorneys at the law firm or corporate legal department. The recent economic downturn put pressure on litigation support staff everywhere to do more with less. Management are asking hard questions like, “Why do we need vendors if we have you?” Or worse, “If we have to use a vendor, why do we need you?” We had the highest HALSM meeting attendance in memory with 25-30 folks packed into a large conference room for the lively discussion.
2010-06-15 eDiscovery Tools, Trust but Verify – Mt. Hawley v. Feldman Howard Reissner, CEO of Planet Data, forwarded me new eDiscovery decision with best practice implications, Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). Being elbow deep in an ugly client issue, I did not get around to digesting the case until well after Ralph Losey, Craig Ball and others have properly dissected it. So I missed the scoop and have to settle for chewing over some of the crumbs in one of the more interesting recent discovery decisions. Stepping aside from the legal wrangling about privilege waiver, I always enjoy getting insight into the raw metrics and burden of litigation that can be dissected publically. Start with the fact that 1,638 GB were collected via forensic imaging from 29 custodians. That means beginning with roughly 60 GB/user. Typical processing at $350-500/GB could have run the Feldman $500-750k just to get it ready to filter and search by their provider, Innovative Discovery. Although the actual file/email count was not given in the opinion, we can roughly guess that it was between 8 and 12 million individual ‘documents’. Even assuming that you can drop 50% in system files and the usual filters, Felman was still staring at a multimillion dollar manual review.
2010-06-07 Desktop Collection 2.0 – Tackling the Enterprise Part 1 I have always contended that the estimates of the true volume and cost of eDiscovery compliance resembled the proverbial iceberg. The Socha-Gelbmann Survey, Gartner Magic Quadrant and Forrester Wave only deal with the small minority of matters that rise above the waters because their particular size or risk forced the parties to treat them with due diligence. The recent run of judicial sanctions and caselaw have focused entirely on preservation and search criteria issues, but they have raised corporate awareness about the difficulties associated with desktop preservation and collection. I have seen this awareness translated into corporate clients exploring their options, if not actually conducting RFP exercises in search of a solution.
2010-06-02 Meet and Confer = The Telephone Game Recent discussions on Debbie Westwood’s Small Firm eDiscovery LinkedIn group have revolved around the results of the 7th Circuit’s pilot program to reduce eDiscovery costs. The focus of this program seems to be actual discussion at the Rule 26(f) Meet and Confer instead of the usual bilateral sets of demands that are misinterpreted or poorly translated back to the technical teams. The program reflects the ongoing efforts of The Sedona Conference® Cooperation Proclamation to “reverse the legal culture of adversarial discovery that is driving up costs and delaying justice”. This effort to make all the attorneys ‘play nice’ with each other does not address one of the critical assumptions that has crept into civil litigation as a whole. That is the assumption that only attorneys can or should directly communicate between the parties once litigation is filed.
2010-05-27 Index Lag – Mind the Gap! Traditional discovery search applications like dtSearch and processing packages like Clearwell are usually offline while new collections are being indexed. Litsupport and legal personnel are used to being confident of the collections being searched at that moment. If you add new ESI to your matter, then you need to update the index before your search, right? But now that there are tools for searching ESI where it lives on live corporate servers and desktops, we introduce a relatively new wrinkle into search, index lag. Enterprise and desktop search engines run in the background and watch for new, deleted or changed files within the scope of folders that they are watching. The problem is that index updates are never instantaneous, which means that enterprise wide searches are never 100% complete.
2010-05-25 LitSupport: We Read Your Email One of today’s stories from the eDJ (eDiscoveryJournal) news engine reminded me of that first email review. The contract paralegal used the firm email system to complain about a festival and was subsequently sacked for her temerity. I used to call this the ‘5,000 to One Rule’. The first time any corporation attempted an in-house review of journaled or restored email, we would see at least one employee fired or disciplined for every 5,000 email reviewed.
2010-05-21 A Sneek Peek at Relativity 6 – Are You Ready for Pivot Tables? While at the recent EDRM 2010 Kickoff meeting, I was able to get a guided tour of the newly released Relativity Six from Andrew Sieja (CEO) and his team. Having several clients who have standardized on the kCura platform in the last year, it was definitely interesting to see the new features and product direction. I will not try to walk through every new bell and whistle here, as your favorite sales rep is more than happy to dive into that level of detail. Instead, I will try to give you the high level points. Andrew’s goals for this release included improving the analytics integration, review workflow, ‘ECA’ functionality and to extend the platform with a new API. Calling out ‘Early Case Assessment’ drew a spirited round of critical debate on the dubious validity of the term in light of the overuse in the discovery market. Despite the call from George Socha to ban the term from the sales cycle, I can see how cKura’s new Relativity Pivot feature supports many of the typical scope and liability assessment scenarios. The overall goal seems to be a more integrated and mature interface for case managers and power users to automate workflow and extract collection profile characteristics.
2010-05-18 Migrating Legal Holds on Enterprise Systems In my consulting practice, I frequently work with corporate legal departments to select and prepare their designated ‘IT Custodians’ who will have to sign affidavits and may be deposed/testify as a Rule 30(b)(6) witness. Historically, these designated subject matter experts covered accounting systems, business practices and other complicated areas relevant to the issues at the heart of a matter. The enterprise ESI lifecycle itself has become so complicated that every preservation or collection request may now require a translator to effectively communicate all the implications of system configurations, user actions and discovery technologies on the scope and format of response efforts.
2010-05-14 EDRM Turns Six – 2010 Kickoff Meeting Everyone may be familiar with the Electronic Discovery Reference Model (EDRM), but many of you may not know much about the organization that created this iconic representation of the eDiscovery lifecycle. EDRM turned six this year and has grown to over 300 participants that span providers, firm, corporate and independent discovery practitioners. The record attendance this year (104 participants) reflected the uptick in business and company’s willingness to commit budget to eDiscovery initiatives. The initial EDRM diagram project has grown to nine active projects developing non-commerical eDiscovery resources and guides. George Socha and Tom Gelbmann (of the Socha-Gelbmann Survey) coordinate the twice yearly meetings and tirelessly support all of the group conference calls and web resources throughout the year. The May gathering is a chance to report on project progress and set new goals for the next year. Each project has two to three leaders and 10-90 individual and organizational participants. All public materials are freely available for use under the Creative Commons Attribution 3.0 United States license as long as you properly attribute them to the EDRM project. The projects follow a consensus based approach and participants of all backgrounds and experience levels are welcome.
2010-05-11 Discovery on Enterprise Archives and Content Platforms My first article on corporate data collections focused on preserving the content, container and context of native files as found on network shares and desktop folders. Discovery requests are increasingly targeting email archives, content management systems and other semi-structured data sources. Most of these sources include search and retrieval features, so one could assume that this makes them a safer candidate for in-house collections. This is not automatically true and is definitely worth talking through some of the common problems that can lead to incomplete or altered retrievals. The first thing to realize is that these systems were not designed to comply with legal discovery requests as found in the United States. The search and retrieval functionality was added to support a business user seeking to find a few specific email or an IT administrator restoring a larger set of items that were either lost or need to be transferred to a new user. Both of these scenarios stress quick, simple search without needing to verify the accuracy or integrity of the search or restoration.
2010-05-07 Legal Collection vs. Business Retrieval – The Basics According to the eDiscoveryJournal analytics, many of you are corporate IT administrators trying to understand these new eDiscovery requirements that your legal department keeps talking about. You provide technology and infrastructure while balancing business requirements against the total cost of ownership. Legal is bound by a different balancing act, cost against risk. This is a fundamental difference between a business unit asking for a document management system and collecting the ESI from twenty laptops for litigation. Many IT administrators tasked with executing collections from their systems have not been given a basic, plain language explanation of the legal requirements for collecting identified ESI when it may be presented as evidence at a later date.
2010-05-04 eDiscoveryJournal Your Way The eDiscoveryJournal (eDJ) search and syndication engine kick started to life just three months ago at Legal Tech New York 2010. Your feedback and the increasing traffic tell us that the eDiscovery market is indeed hungry for relevant news and perspective. The eDJ engine collects 100-200 new items per weekday that we manually review and categorize. In just three months, eDJ has accumulated over 3,300 web posts covering news stories, blogs, press releases and new sites. We have published over 60 original Journal articles, keeping to our goal of a new Journal piece every day of the working week. All of this is a lot of content and so we have just added some new tools to your user profile that will enable you to what you want to hear about and how you want to receive it. Everything we create or find on the web is manually coded with 43 eDiscovery concepts.
2010-04-29 The Devil is in the Details – Processing Pitfalls The management and review of native files (ESI) generally requires the extraction of internal/external metadata and the readable text to be indexed for search. Most types of container or multipart files such as ZIP or PST containers must be broken out into individual files for this step and subsequent productions. This is the foundation of what our industry calls Processing. Most counsel, corporate IT and judiciary seem to operate under a presumption of magical perfection in these software and services of specialized eDiscovery providers. Most of these ‘built for purpose’ applications manage to avoid the basic MS Windows issues that drop or alter date fields, but the infinite variables associated with ESI formats and contents make it nearly impossible for any system to automatically get everything right, even if we could agree on what ‘right’ is. Although I had heard about Planet Data’s acquisition of the Cerulean Engine™, the time at the AIIM 360 Expo gave me an opportunity to understand the deep processing experience that accompanied the software.
2010-04-26 New Integrated Analytics on the Catalyst CR Platform Although the AIIM Expo Discovery Pavilion had a modest start with six booths, that did give me plenty of time to visit with my neighbors and dig into their new features and offerings. The sheer size and diversity of Legal Tech tends to make it difficult to get real information at the booth. Everyone is trying to schedule you for an offsite demo and jump to the next person in line. I got to talk shop with the good folks at Catalyst and Planet Data in a way that would not have happened at one of the major eDiscovery shows. The Catalyst team has been busy integrating new conceptual and organizational technology into the user workflow of their CatalystCR platform.
2010-04-21 eDiscovery at the AIIM Expo – Day 1 Impressions Old school eDiscovery professionals are used to hitting the big three conferences; Legal Tech, ARMA and ILTA. So I came to the AIIM Info 360 Expo without preconceptions to this conference focusing on ECM technologies, providers and adjacent services. The last several years have reinforced the message to the market that the money and investment is ‘going left’ on the EDRM lifecycle. Review costs still dominate the actual litigation spend, but we all know that discovery starts where the ESI lives, which makes information management initiatives and technologies the best long term bet. The conference is attended by IT admins, records managers and the providers offering anything needed to get records into a system. Every other booth seemed to offer some kind of Sharepoint based workflow application. Microsoft dropped a full training center into the middle of the conference floor and surrounded it with partners. It definitely took the ‘app d’jour’ prize.
2010-04-20 Searching by Date? Be Very, Very Careful... During a recent software testing engagement, I ran into an interesting issue with date based searches that could impact your discovery search results. The root of the issue is based in the different ways of representing communication attachments or other multipart items such as Sharepoint/wiki page attachments. In the dark ages of eDiscovery, our software was designed to simulate the myriad physical attachment levels of scanned paper documents. I am not ashamed to recall coding levels of staple, clip and binder groupings back in IPRO ver. 1.5. The system enabled an attorney to determine the exact hierarchical relationship of that individual document to all the others scanned from that box retrieved from Iron Mountain. Newcomers to our field cannot imagine the labor required to manually code in Author, Recipients, Subject and other fields that are now extracted from ESI during processing.
2010-04-15 Small Firm Technology – Part 2 In Part 1, I outlined the typical litigation profile questions that would support a realistic needs assessment for a solo attorney or small firm. From a the set of requirements, we explored the basic software packages through the EDRM lifecycle while calling out small firm perspectives. In the intervening weeks, I have tried to track down and get hands on new applications and SaaS offerings that might meet my challenge criteria. The nice folks at QD Documents got me a trial license for their $500 package. The product definitely gives a solo attorney the basic organizational space to code in documents, exhibits, transcripts, filings and all the other working pieces of a matter. Unfortunately, it is really just a nice, clean document tracking and management space, rather than an eDiscovery processing platform. I suppose that you could put URL links in field for native files, but that just feels too much like Concordance. So a good, cost-effective case management tool, but not an answer to my challenge.
2010-04-12 Destruction Management – A Practical Alternative When you consult on discovery issues, you cannot avoid running into retention management initiatives, no matter how hard you try. One of the first Interrogatories on almost every matter asks for a copy of the corporate retention policy and supporting documentation concerning record systems. The problem is that records are no longer boxes of old files kept in offsite storage. In the modern business environment, every piece of ESI has the potential of being considered a ‘record’ or at least evidence. One of my more frequent client conversations starts with, “We need to have a system to apply retention periods so that I can get rid of anything that I do not absolutely need.” Counsel views the seas of unstructured ESI as potential evidence that will cost $1-3 per item to review. So the motivation behind legal’s push for retention management is to reduce discovery cost and risk. The actual goal is to destroy non-record ESI as fast as possible. To that end, I have come to the conclusion that trying to define records and apply retention periods is tackling the problem from the wrong end of the equation. A program of ‘Destruction Management’ that categorizes and destroys non-records seems to be a much more practical initial step toward overall information lifecycle management.
2010-04-07 So How Do You Review Web Collaboration ESI? In several recent posts, Barry and I have called out the challenges of collecting dynamic content from web based collaboration platforms, focusing on Sharepoint as the market leading platform. It is definitely on the minds of corporate legal departments and providers alike. Our articles prompted the team at Kiersted Systems to request a demo and briefing on their newest Sharepoint collection and review offering. Although we do not do classic product ‘reviews’ at eDiscoveryJournal, I do like to explore the implications of new methodologies and technologies. Sharepoint 2010 itself is new to the market and brings new capabilities to manage legal holds on records as well as more robust search and export features. The new ability to make a ‘preservation copy’ within Sharepoint is probably the highlight feature to take note of. They have wrapped a bit more workflow and specific action templates around holds, search and export, but the basic item level functionality seems unchanged.
2010-04-02 eDiscovery Technology for the Small Firm – Part 1 Although my consulting practice focuses on corporate legal departments and Biglaw firms, expert work does not discriminate against small firms. Following a recent consultation, an attorney from a small three man firm reached out to me for advice on basic software to handle their modest needs. It had been a while(quite a while) since I had checked the options and pricing for technology appropriate for this part of the market. I was seriously out of touch on the per seat pricing for CT Summation’s iBlaze and the firm definitely did not want any volume or subscription based licensing. They wanted to buy software, learn to use it and get on with practicing law. This exercise reminded me of Craig Ball’s EDna Challenge back in January. My challenge was about equipping a small or solo firm with basic eDiscovery technology without breaking their budget.
2010-03-30 Is Your LPO Partner Breaking the Law? The 2009 economic downturn created a boom in the offshore review industry. The cost of review still dominates the eDiscovery lifecycle and is the top target for budget conscious corporate legal departments. Corporate counsel tends to start with the actual hourly wages of reviewers because that does not change their current workflow. Some work with pools of contract attorneys to bring the hourly rates down to $25-$80 per hour. But this still requires outside or inside counsel to manage the review and invest in the review platform to host the data. Outsourced service providers have traditionally handled the large, multiparty matters and supplied both project management as well as offshore contract reviewers. This is the root of the new Legal Process Outsourcing (LPO) service model. Integreon, one of the largest LPO players, announced that it had been named in a writ for unlicensed practice of law to the Madras High Court in India.
2010-03-24 Breaking In To eDiscovery – Certifications and Training Options I was recently asked what training and certifications could help an attorney looking to break into contract work on eDiscovery projects. This is an attorney that has practiced for 20 years , but she still felt the need to put some technical alphabet soup behind her JD. The questions mostly focused on which software and what level of training would demonstrate overall competence. What it takes to ‘break in’ as an independent is a good topic for a full article, but I will start with my perspectives on software, training and certifications as they exist today. Although contract attorneys are primarily used as reviewers, I am going to assume that an experienced attorney or other professional wants to take a case or project management role for a corporate or law firm client. This role has traditionally been filled by the service provider, but with corporations insourcing discovery and firms taking more fixed fee engagements, I can definitely see a potential niche market for someone with the right skills.
2010-03-23 Autocoding Take III – New Acuity Offering The first two journal entries on autocoding definitely resonated with the market and generated a lot of on/offline responses. One of those responses was a call and subsequent briefing from my old colleagues at FTI Technology on their latest offering, FTI Acuity. [EDITOR’S NOTICE– Greg worked at Attenex prior to the FTI acquisition.] A quick visit to the FTI site leads one to believe that Acuity is just a packaged services-hosting offering with a fixed per-GB or per-Document pricing model that they term Integrated Document Review. DiscoverReady was one of the first Attenex partners to offer fixed-fee per document review pricing back in 2005. The FTI materials barely mention the new predictive coding and quality control functionality that has been added to the Ringtail-Patterns platform.
2010-03-17 Preserving Dynamic Collaboration Content – Part 2 In Part 1, we explored changing face of internet and intranet collaborative communication platforms and the increased risks posed by outdated policies and technologies. My main concern over these systems is the unreasonable expectation that a typical corporate custodian could preserve relevant ESI stored in Sharepoint or another cloud based system. Despite recent rulings emphasizing written Hold Notification, most users simply do not have the tech savvy, rights or proper tools to either make a complete preservation copy or secure the items in place against expiry or accidents. That shifts the onus back onto Legal to effectively preserve these dynamic data sources.
2010-03-12 Preservation Pitfalls of Dynamic Content Platforms – Part 1 The legal community is just coming to grips with the implications of native files and their metadata. I like to think of this as the content vs. context of ESI or the letter vs. the envelope in communications. Parties and courts are still arguing about how to handle, track and present multiple copies of the same item collected from different locations. Now we move that content into a dynamic environment with multiple, simultaneous ‘custodians’ that may contain historical versions, associated commentary, workflow and more. It is any wonder that many corporations have tried to define restrictive acceptable usage policies and implement net filters to limit user access to Facebook, Twitter and more from the enterprise?
2010-03-08 Internal Metadata – Hidden Text Lurking in Your ESI When we talk about metadata for native ESI, we are usually concerned about the Operating System (OS) fields that are kept in the File Allocation Table (FAT). Different OS formats support a wide variety of fields such as different dates, attributes, permissions and file name formats (long vs. short). These fields are not usually stored within the actual file and so are very vulnerable to alteration or complete loss when items are read or copied. Forensic collection is focused on preserving this ‘envelope’ information so that evidence can be authenticated and the context reconstructed in court. That is only half of the metadata story. Microsoft Office and other programs retain non-displayed information within the header and body of all common file types, especially with the adoption of the XML based Office 2007 file formats.
2010-03-05 Inside of Automated Review – Part 2 In Part 1, we defined and looked at how automated document review has entered the eDiscovery market. Attenex and Stratify both encountered the same slow adoption and educational sales cycles when they brought concept clustering analytics to the hosted review market. Being on or over the cutting edge can be rough when you have a relatively conservative customer base. Counsel want strategic advantages without corresponding risks while corporations push for cost containment. In the midst of this pressure cooker, DiscoverReady has launched a new automated first pass review system called i-Decision™.
2010-03-04 Is the Market Ready for Automated Review? - Part 1 In the weeks following LTNY 2010, I have tried to catch up on the demos and briefings that did not make it into my busy show schedule. I finally managed a look at the new i-Decision automated first pass review from the team at DiscoverReady. It got me thinking about the entire concept of automated relevance designation. Several years back, H5 introduced automated review to the market using their Hi-Q Platform™. Recommind’s Axcelerate, Equivio’s Relevance and now Xerox Litigation Services CategoriX also bring some flavor of automated categorization to the field. Having at least five serious products on the market tells me that customers are paying the relatively high per item or per GB rates to bypass a full manual review.
2010-03-02 Sampling Sizes – No Easy Answers As inside and outside counsel struggle with ever larger ESI collections, the question of appropriate sample sizes for quality assurance pops up on the national lists, conference panels and in social gatherings of law geeks. There are many different statistical theories that can be used to calculate the relative probability that the results of a sample set can be extrapolated against the total collection. In simpler terms, sampling is used to define how confident we are in an assertion when we have not or cannot review every single item due to scale, availability, cost or time. This is expressed as the Confidence Interval or Confidence Range. Do not worry, I am not a statistician and have no intention of even trying to translate significance levels, variability parameters or estimation errors. Instead, I will talk about how sampling can apply to the discovery process.
2010-02-26 No Such Thing as Free Advice – Consultants Part 2 In Consultants Part 1, I explored the different kinds of eDiscovery related consultants and how they came to be from the mid 1990’s to today. No we can look at the ethical issues facing subject matter experts in their different roles. Lawyers, accountants and physicians and other traditional advisory experts work within a well defined framework of legal and ethical standards that define their fiduciary responsibilities to their clients. There are no such regulatory or standards bodies governing eDiscovery experts as yet. In part, this is because such consultants are expected to deliver their advice directly to counsel, who should make the final legal determination.
2010-02-23 Fiduciary Duty From the Fringe – Consultants Part 1 Several recent blog posts and discussions on various industry listservs have raised interesting issues about the potential problems and benefits of consultants working for and with software and service providers. See John Heckman’s post ‘What is a Consultant, Anyway?’ as well as Seth Rowland’s ‘Sales vs Consulting – The Cost of Independence’ for some well developed criticisms of consultant’s who are compensated by the seller instead of the buyers. Steve Miller’s ‘What is a Consultant, Anyway? My Two Cents’ provides some counterpoints supporting vendor relationships for consultants. These opinions seem to originate from the software sales area instead of actual consulting on cases.
2010-02-19 The Pricing Limbo - How Low Can You Go? One of the topics bouncing around LTNY was the new SaaS pricing of $100/GB/year for processing, hosting and review by Houston based Sfile Technology Corporation. In this world of hidden pricing, NDA wrapped RFPs and other hide-the-ball licensing games, Sfile is publishing their upfront pricing and undercutting the current market average of $300-500/GB by a huge margin. Aside from the usual belly-aching from other processing-hosting providers, I expected that most of my corporate and firm clients would be excited about the potential downward price pressure.
2010-02-16 A Call for Pricing Transparency
2010-02-11 LTNY 2010 Part 3 – Secret Shopping, A Failed Experiment This year I tried an experiment in my continual quest to gather as much information from the Discovery Maze (LNTY Exhibit Halls) as possible. The experiment was a bust, but there were lessons in why and how it failed. The idea was to recruit corporate and firm managers and specialists with 5+ years experience to be ‘Secret Shoppers’ on the Exhibit Hall. This way I could try to reach more of the floor and everyone in the network would share their feedback on a set of secured web pages.
2010-02-10 LTNY 2010 Part 2 – ECA Everywhere Barry Murphy called out 2010 as “the year of ECA”. Certainly those three letters were found on almost every booth, even if the exhibitors did not exactly agree on what that entails. The majority of the processing players seem to consider canned reports and inventory functionality to provide ECA support. But the important trend is that everyone is looking to provide upstream decision support.
2010-02-09 LTNY 2010 Part 1 - Times They Are A’Changing “What positive impact?” you ask. It seems that when times get tough, good companies get busy and the others go out of business. Every booth that I visited trotted out new features, licensing options and a better overall understanding of the customer’s needs. The economic pressure cooker seems to have sounded the wake up call to service and technology providers alike. What impressed me the most was that everyone was able to express a consistent value proposition message. Many still have technology flaws and poor usability, but they are becoming aware of the user’s context and can present their offerings within some kind of usage scenario.
2010-02-07 The State of eDiscovery on the Web The final result was an initial list of 543 sites that met my fairly strict requirements. That means that almost 95% of sites were only vaguely related to our industry or practice. No wonder webinars, conferences and training organizations are getting decent attendance. If you do not already know what you are looking for, your odds of finding it are pretty slim or you are in for a lot of surfing.
2010-01-26 Performance Testing for Baseline Discovery Metrics As legal technology migrates from external service providers to inside the firewall, it is more important than ever to test and understand your rates of collection, processing, loading, reviewing and producing ESI. Litigation support is a deadline driven business. Counsel will wait as long as possible before pulling the trigger on discovery in the hope and expectation of resolving the matter without having to incur further costs. Successfully adapting to this pressure cooker lifestyle requires that you construct a ‘burst capacity’ workflow as opposed to a normal ‘continuous capacity’ model.
2010-01-26 ECA, the functionality behind the hype
2010-01-26 Measure Twice, Cut Once – Downsizing Legal Departments
2010-01-26 Appealing Discovery Issues Just Got Tougher – Mohawk Industries v. Carpenter Mohawk Industries v. Carpenter is Justice Sonia Sotomayor’s first opinion and while it first appears to be a simple procedural issue, it may have far reaching consequences with counsel making risk vs. cost decisions around their discovery efforts. The case involves a dispute over whether privilege waiver and other discovery related district court orders can be appealed during or after the case, whether it qualifies for an interlocutory appeal in lawyer speak. The unanimous opinion found that with some exceptions discovery decisions could only be appealed after the final judgment was rendered.
2010-01-26 The Myth of Custodial Selection Common sense, law school and practical experience all tell a litigator that interviewing a custodian is the best way to identify potential ESI. This made sense when the evidence was in the filing cabinet, but not when it is scattered over network shares and other systems.
2014-02-24 SharePoint eDiscovery Tools: On-Premise and Office 365 2014 is shaping up to be a good year for Microsoft when it comes to SharePoint migrations and/or Office 365 adoption. Consulting client inquires have had me writing, speaking and researching about the new Microsoft eDiscovery Center and the overall challenges/benefits of launching corporate ESI to the cloud. But enterprise migrations require many months of planning, user education and testing prior to moving email and files. I am seeing conservative enterprise clients estimating 12-18 months as a realistic project lifecycle when assessing upgrades and migrations. That creates a need for interim tools to perform eDiscovery collections from on-premise SharePoint and/or cloud SharePoint in Office 365 environment. Since some IT groups have a tendency to kick off pilot projects without consulting legal or compliance, I can see many companies having a short-term need for a collection tool where they do not want to commit to a full ‘eDiscovery platform’. Thus the inspiration to update the SharePoint Collection category in the eDJ Matrix and add a new category just for Office 365 Collection.
2014-02-17 Long Distance Discovery in the Cloud Preliminary results from my ongoing survey on Cloud Services Adoption have added some interesting context to the LTNY hot topic of Microsoft’s Office 365. As you can see below, 30-40% of consumer respondents (n=16) have already faced discovery of email or files from cloud repositories such as Office 365 or Gmail. What jumped out to me was the 37.5% who have already used the brand new MS eDiscovery Center to place holds or run collections. Early in 2013, eDJ saw the first engagements and inquiries with global corporate clients actively exploring the potential risks and benefits for migrating their key communications and content infrastructure to the cloud. We expected this to slowly ramp up as early adopters testing the waters. We did not expect so many CIO’s to jump straight into the deep end of the pool until the courts, regulatory agencies and other stakeholders gave more concrete guidance and best practices for compliance in the cloud.
2014-02-13 eDJ Brief: TunnelVision 4.0 – Betwixt Corporate and Cloud I first encountered TunnelVision back in 2009 during a process assessment for an AmLaw 200 firm. They were an early adopter using TunnelVision 1.0 for email culling to cut the volume going into Clearwell by 40-60%, an easy ROI for the tool back then. TunnelVision 4.0 delivers a completely new HTML5 user interface with automated workflow and a ‘visual navigation dashboard’. The Mindseye team sought to create a better vehicle for finding data that matters driven by a small number of knowledge workers rather than large review teams. So the focus is on dynamic presentation of multiple data profile facets such as chronology, custodians, concepts and more on one dashboard. This ‘eDiscovery cockpit’ can be intimidating at first, especially to non-technical prospective buyers. Mindseye and their channel partners will have to find the right sales strategy to demonstrate clear usage scenarios and ROI. That being said, TunnelVision 4.0 joins the select group of processing/ECA tools with fully integrated analytics, universal accessibility and dynamic visual navigation dashboards.
2014-02-10 LTNY 2014 – Trends, Take Aways and New Tech So you didn’t brave the snow to make the big show this year? Guess what, you were not alone. Someday I will understand why a February conference has to be held in NY. I don’t want you to get the impression that the show was deserted, but it definitely did not hit the projected attendance of 13,000 based on my time on the exhibitor floor and conversations with exhibitors. So traffic was down, the third floor of exhibitors converted to a stage and some empty booth slots at the back of the second floor. On the up side, providers seem to have figured out how to qualify real prospects and route them off the floor to demo suites for serious sales discussions. Indeed, the real action seems to have moved to suites, lounges and other quieter venues. This explains why the Hilton converted so much of our casual meeting zones to private/paid space. For next year, expect to stand through your meeting, leave the hotel or pay for a dedicated space to talk shop. My top impression is that of a widening confidence gap between the market leaders and the mid-tier players who are struggling to adapt their value proposition to an increasingly savvy consumer base.
2014-02-02 LTNY 2014 – Mixed Signals Are you going to Legal Tech in frozen New York next week? Over 50% of my admittedly small survey are not attending this year. Quite a few of my long term friends will not be there this year and that has me wondering about the legal technology market in general. I have always viewed LTNY attendance, sponsorship and exhibitor counts as prime indicators of the eDiscovery marketing budget. LTNY 2013 certainly promised a rebound from the recession doldrums that afflicted every market. 2013 took off with a bang and seems to have ended in cautious confusion among many of the providers we briefed through the last quarter. So why are people going to LTNY this year? Education and panels led in overall importance rankings with social networking right behind. Interesting enough, 25% of survey respondents are paying their own way and no one reported complementary provider passes (which may be a reflection on the changing exhibitor packages). Of eDiscovery topics, Information Governance – upstream eDiscovery ranked significantly higher than Predictive Coding – analytics or any other topic.
2014-02-03 eDJ Brief: Recommind Axcelerate 5 – eDiscovery HTML5 Makeover Recommind hit the market hard in 2011 as one of the earliest predictive coding (PC) offerings. They garnered a bit of market backlash for their high profile announcement to broadly enforce their PC patent but seemed to shift their focus to Information Governance corporate sales in 2012. Recommind’s latest round of funding for $15 million in September of last year seems to have coincided with a return to eDiscovery along with a quiet turnover of key management. Indeed, Axcelerate 5 represents an entirely new HTML5 application layer on the CORE platform infrastructure to address adoption complexity and increase usability and accessibility. This makes sense when you learn that the cloud based Axcelerate On-Demand represents the majority of Recommind’s revenue. It feels like Recommind is doubling down on eDiscovery while waiting for the corporate market demand for enterprise analytics and Information Governance to catch up. The overall take-away is that Axcelerate 5 is a ‘new’ review product aimed squarely at customers seeking a hosted review platform with mature linear and PC capabilities.
2014-01-27 eDJ Brief: Intella Pro – Straddling the Gap Between Forensics and Enterprise Search Intella Pro aims to cover the market gap between forensic collection and high performance processing engines with implementation options that cover desktop to team web-server for $5-25k. Although Intella customers are reportedly using the system on live data sources, it is currently designed to process collected ESI and forensic containers for fast ECA, filtering, image conversion and production. Like many products with forensic software roots, Vound’s primary customer base are the big consulting firms, law enforcement, government and some biglaw firms with heavy international litigation. The Intella suite has a relatively intuitive user interface and Vound focuses on adoption usability as a prime differentiator for customers used to relatively complicated forensic analysis software. Vound was founded in 2008 and is based in Australia, yet another market entry from down under.
2014-01-19 eDJ Update – Participation is the Key If you are a long term reader of the eDiscovery Journal, you know that we continually change our business model, sites and forms of content to bring you our unique perspective, keep our independence and make a living. As you may have gathered from our recent blogs, the consumer market does not seem to be ready to support paid subscriptions to our premium eDJ Notes, reports, survey results and more. We listened as consumers and providers alike bemoaned the lack of true strategic expertise to navigate the dynamic eDiscovery challenges and technical capabilities our clients face every day. With eDJ Group focusing on our consulting business, what does that mean for our research engine and readers? No one can generate consistent, high quality research content for free. You should always follow the money to understand any potential bias or hidden marketing messages in ‘free ’ white papers or articles. Even if you do not have the budget for a paid membership, you do have something to offer to the eDJ family: your perspective and survey participation.
2014-01-03 eDiscovery 2014 - Times They Are A’Changing The new year has brought some pretty big changes to the eDJ Group based on what we were seeing in the eDiscovery market. The holidays and my annual diving trip gave me the time and distance to reflect on how these changes may impact you in the coming year. This blog will not be my classic ‘trends & predictions’ for 2014, but a more myopic perspective on the rapidly evolving business of legal technology and services. The decision to transform our ‘independent analyst’ business to more traditional research-on-demand consulting was not made easily or quickly. Providers and consumers alike told us that that they were cutting back on analyst and membership budgets. At the same time, blogs like my recent one on the MS eDiscovery Center were generating inquiries and consulting opportunities from corporations and their service providers struggling with strategic decisions. So what did we see in the market that forced eDJ to focus all of our attention on strategic consulting?
2013-12-23 Who Keeps the Keys to the Corporate Data Castle? In a recent eDJ Reviewed briefing session, Geoff Bourgeois (CTO of Acaveo) highlighted the Smart Information Server’s rapid installation by pointing out that all the only preparatory requirement was a single service account with essentially “Superuser” access rights to every data source that you want to see, search or collect from. Having sat through hundreds of product demos, I know that it takes nerve to do a cold installation, configuration, search and collection in a one hour demo on a live remote environment. It occurred to me that every enterprise discovery collection system on the market assumed that the corporate IT group would give Legal/Compliance full access rights. I have observed increasing tension between IT, Security, Legal and other stakeholders over these ‘keys to the data kingdom’. The Sarbanes-Oxley Act of 2002 was the first big access rights wake-up call to IT. Every new article on massive data breaches (example Target stores) drives IT/Security to slam the gates of the corporate castle and scream “None shall pass!”
2013-12-05 Hands On with the 2013 MS eDiscovery Center My regular readers know that I have spent a lot of time evaluating Microsoft’s initial discovery tools for SharePoint and Exchange. With so many of our clients contemplating enterprise wide migrations of unstructured data to on-premise or Office 365 SharePoint, I have been scrambling to keep up with all of the eDiscovery offerings that have built connectors to support business requirements such as retention categorization, legal holds, investigations, collections and even review on in-place data. Up to this point, our knowledge of the new SharePoint eDiscovery Center has been based on our briefings, demonstrations and meetings with the Microsoft (MSFT) team and client POC environments. eDJ uses Office 365 for our email and SharePoint sites, including our development cycles tracking goals, requirements and bugs. Since we upgraded our SharePoint sites to the 2013 infrastructure, I decided to upload my validation test data sets and some known test data to a secured email mailbox and to a SharePoint document folder to run some initial hands on tests. The MSFT product management team had assured me that there were major upgrades to the 2013 FAST index that addressed many of the search issues that I found in my Exchange 2010 testing. I took an attitude of ‘believe it when I see it’ in those early briefings and was pleasantly surprised with my initial tests of known file types and search terms when compared to dtSearch, X1 and Symantec’s Enterprise Vault/Discovery Accelerator. That’s right, the 2013 FAST search may be good enough for selective preservation or collection.
2013-11-29 Mobile Discovery Cost or Consequences? Every boot camp brings me new insight, usage cases and friends. Last week’s ARMA Mobile Discovery boot camp gave me a great new phrase that encapsulated the struggle over BYOD decisions, “Cost or Consequences.” These full day ARMA sessions forced me to re-work the boot camp scope and format, but allowed us to dig deep and get specific with our fictitious stakeholder teams and the real quandaries that participants were able to share. This time I gave roughly twice the time to mobile device polices, management and upstream techniques to minimize mobile ESI even entering the eDiscovery lifecycle. Despite carrying that conversation through lunch, the topic deserves more than a four hour crash course to hammer out the tangled facets of our increasingly mobile workforce. Our representatives from the local government entities played a lively role in discussions and brought home some distinctly different priorities. They conveyed a unique willingness to hold civil employees accountable that I have not encountered in corporate or law firm clients. It was corporate executives who broke the BYOD ice by bringing iPhones and iPads to board meetings.
2013-11-07 Don’t Be an eDiscovery Castaway Are you wandering in an eDiscovery wilderness? Everyone working in the eDiscovery market has to balance the confidential, privileged nature of our work against the need for advice, perspective and knowledge to meet constantly changing requirements, tools and challenges. In the very earliest days of eDiscovery, the litigation support village was small enough that we could use the Yahoo list and personal contacts to vette process and technical questions. The 2006 FRCP brought eDiscovery obligations into the spotlight and raised the consequences for ignorance or willful disregard. The vast majority of eDiscovery practitioners have less than 5 years of direct experience, although many bring substantial tangential experience to the table. Mature industries have developed resource systems for user education, certifications, social networking, standards bodies, productized templates, analyst reports and standardized consulting offerings. All of these resources are still in their infancy where discovery intersects information governance. So what do you do when you need real strategic or tactical advice?
2013-10-29 Legal Market Squirrel!!! Practice Management ≠ EDRM The EDRM Midyear Meeting press release included the usual project updates and an important announcement regarding George Socha and Tom Gelbmann passing the leadership baton to convert EDRM into a true non-profit standards organization. This transformation raises many questions about the organization’s goals and has some analysts challenging the use (or misuse) of the seven year old lifecycle model by product marketing and management teams. First let’s take a look at these titles, “Is the EDRM a Jack-of-All-Trades and Master of None?” and “Abandoning the EDRM assembly line: a legal-regulatory technology market ripe for change.” While these rather evocative titles could lead you to believe that the EDRM is to blame for software companies that have built ‘Frankenstacks’, products that attempt to support too many divergent business tasks. I am not exactly sure what specific products were being lumped into this category. Most providers chasing the ‘eDiscovery Platform’ market have added legal hold notification, project workflows and some matter management modules to either collection or review foundations, but these are all supporting related tasks.
2013-10-10 ESI Held Hostage – Not Just for Politicians Many of the articles and blogs concerning the ruling in GlaxoSmithKline LLC v. Discovery Works Legal Inc., et al., Case No. 650210/2013 will try to tell you that these kinds of alleged provider misconduct are rare and isolated incidents. Indeed, attorney Michael G. Van Arsdall’s January article asserts, “Of course, there is a very low likelihood such a hostage situation would ever arise with the larg number of reputable vendors that occupy the e-discovery space.” I found Mr. Arsdall’s excellent recommendations for handling providers recycled through numerous blogs/articles without anyone questioning his basic assumption that you should not have issues with ‘reputable vendors’. I wish that business practices in our industry were somehow special, different or above the basic conflicts in the global consumer-provider market that litigation thrives on. We all make our livelihood on bad business deals. So why should eDiscovery providers be any different? Buy any experienced litigation support manager a few libations and then ask them about the ‘bad’ vendors. Then do the same thing with any eDiscovery sales rep and compare the stories. The eDiscovery market is still a relatively immature industry founded on emergency, reactive services purchased with someone else’s money under adversarial conditions.
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