Early Case Assessment (ECA) Should be Emerging as a Best Practice

With no end in sight to the accellerating volume of Electronically Stored Information (ESI), the associated increase in the amount of eDiscovery work required to prepare for litigation and the resulting dramatic increase in the cost, Early Case Assessment (ECA) is beginning to emerge as a fundemental "Best Practice" in most eDiscovery projects. However, why is it taking so long for the legal industry to embrace?

This question was addressed in an article/marketing piece published on November 2, 2009 on the The Metropolitan Coprorate Counsel website by Rich Cohen and Joe Garber titled, "The Evolution Of Early Case Assessment From Simply A Good Idea To An Enterprise Solution".

And, even though the article is a bit self serving from the standpoint that they are peddling Vestigate, the ECA platform that their company, RenewData offers, Cohen and Graber actually do a really great job of outlining the issues and explaining some of the "real" value intrinsic in the ECA model.

There is no doubt that pushed and proded by the changes to the Federal Rules of Civil Procedure (FRCP) and more specifically the requirements of Rule 26(f), most litigators now understand the "concpet" that knowing where your ESI is located, collecting and analyzing that ESI and then performing an intelligent culling of that ESI down to the truly relevant and possibly responsive ESI is a fundemental key to realizing success in the eDiscovery process. And, that it can be a key competitive advantage in preparing for the initial meet and confer meeting(s).

However, and as pointed out by Cohen and Graber, the technology platforms to support this ECA process is all very new and therefore, for the ill prepared or misinfomred, can out to be a very technical endeavor with less than understandable and/or even acceptable results. In addition, eDiscovery vendors, whether intentional or not, have done an extremely good job of completely confusing the marketplace in regards what all of this new technology does based upon conceptual search vs. the old EDD keyword search approach and and how to use it.

I have addressed some of these issues in past Blog Posts:

The eDiscovery Paradigm Shift: Concept Search vs. Keyword Search

The eDiscovery Paradigm Shift: Concept Search Case Law Emerging

And, I plan to post more of the same over the remainder of 2009 and into early 2010 and have some great overview of very interesting new ECA and Conceptual Search technology. However, for the purposes of this post, I would like to make the following observations regrading ECA and Conceptual Search Technology:

1. Early Case Assessment (ECA) technology is maturing and does have the potential to be somewhat of a silver bullet for eDiscovery market.
2. Any Early Case Assessment (ECA) solution that wants to rise to the top of the vendor pile is going to have a very sophisticated "true" conceptual search solution possibly sitting in a technology stack with Lucene and associated Open Source solutions that have been adopted into the commercial markets. However, next generation conceptual search and associated support for next generation ECA such as the eDiscovery Tool Kit from Orcatec, can be farily easy to integrate with older solutions as it doesn't necessarily have to sit on any specific newer technology stack.
3. As a follow on to # 2, don't get confused by vendors that are contending that they have conceptual search when in fact that have "old" boolean key word search. There is a big difference (see my posts on this topic).
4. The true sliver bullet ECA solution will be more of an end-to-end eDiscovery solution that will be SaaS based (i.e. users will be able to access it over the Web), will enable ingestion of 400+ files types, will be able to normalize all embedded files, will be able to apply very sophisticated analytics based upon conceptual search and related technology, will support iterrative document review of both the native and image versions of documents (as opposed to linear review), will enable user extensible tagging, will include workflow management and stakeholder dashboards to track project status, will support production into the standard required formats, and; may even include new automated/machine driven review (stay tuned for more posts on this topic in the comming weeks).
5. Courts are beginning to undertsand how all of this works.
6. Don't be affraid to bring in the experts to help with understanding all of this. And, the technology vendors may not necessarily be the experts as they don't necessarily understand ECA best practices, etc.

So, Early Case Assessemnt (ECA) is evolving and growing and trying to find its way. But, don't wait too long to jump on the train as it is leaving the station and once gone, you may be left without a way to complete the 26(f) requirements and may be at a substantial disadvantage to your opponent.
The full text of the articel by Rich Cohen and Joe Garber is as follows:

Ask 10 people who are "in the know" about managing electronic data for legal or regulatory purposes, and I suspect that you wouldn't find one who says that Early Case Assessment (ECA) isn't a great concept. The idea of leveraging advanced technology to help you be smarter about how you approach eDiscovery and save millions of dollars in downstream legal review would seem to be a slam dunk. Yet despite the obvious benefits, the adoption of ECA technology has been slow to rise.

The reasons for this apparent anomaly are actually threefold: 1) despite a great amount of buzz on the topic a clear definition of ECA has yet to emerge, causing many organizations to remain hesitant about deployment; 2) the software that has been introduced to the market so far has been somewhat misaligned with the fundamental needs of its users; and 3) a simple approach to evaluate the various technology options for this process has been unavailable to date.

This article will address these issues head on. In the process, we will clear up any confusion about what ECA is, identify the gaps in how this technology has been delivered thus far, provide a new framework for evaluating different solutions available, and ultimately tell you about a unique approach to ECA that is much more in line with the needs of the market.

What Is ECA?

Today, many organizations are finally starting to get their arms around their total costs of eDiscovery, and they're finding that the primary cost driver is attorney review. To combat excessive spending in this area, many smart organizations are looking for ways to analyze their data further upstream in the eDiscovery process so they can make some strategic decisions before involving large teams of lawyers that they pay by the hour.

To that end, ECA tools are designed to quickly provide a snapshot of what is contained within all your data and help you make sense of it all. Knowing where all your information is, and what risk exposure your organization has right up front will help you decide if you want to settleor if you intend to fight the case, ECA may help you determine how you will staff the case and what approach you'll take as a defense. Perhaps just as important, it can help you set aside clearly non-responsive data so you don't have to pay to review it later on.

ECA is attractive to organizations in virtually all industries, particularly those that have a high volume of legal or regulatory actions who are facing pressures from budget cuts and/or downsized legal and IT staffs. It is contrasted with traditional review technology because it takes place much earlier in the eDiscovery process, is generally conducted by a more senior-level attorney (who has the experience to make the strategic decisions), and provides a higher level of analysis than that which often takes place in review software to prepare your data for use in court.

The ECA Challenge (So Far)

Again, despite the obvious benefits, many organizations have been slow to adopt ECA to this point. There are several reasons for this, including internal cultural issues (e.g., people have a hard time adapting to change), and that ECA technology was a bit in its infancy until recently.

But possibly a bigger barrier to adoption has been how this technology has historically been delivered. ECA came to pass when some of the larger software companies figured out that the conceptual search technology they'd invested in over the past few years had some clear overlap with the need to analyze a great amount of data, very quickly, for legal reasons. This software, which uses some complex mathematics to find patterns in data, could help you more quickly categorize the data you were looking at and thus expedite your search.

However, what was taking place under the hood was difficult to understand - and more importantly, difficult to explain to opposing counsel and the courts. As a result, many felt they really couldn't re-use their work product in the subsequent review stage. That meant users had to use one technology for ECA, and then start all over with their search efforts in a separate review application they could better explain to all parties later on. Naturally, using one application for ECA and a second for review led to more risk and cost than most organizations were comfortable with.

The other drawback to how ECA technology was traditionally being delivered was that you didn't have a great sense that you had really seen "everything that needed to be seen." It's no surprise by now that ECA is about looking at only a small subset of your overall data to make some strategic decisions - and most technologies built for ECA do not have the tools in place to provide confidence to its users that they haven't missed a critical piece of evidence as they did their quick analysis.

The Market Evolution

As we set our sights on a new decade, ECA technology is poised to make a leap from simply a good idea to being a true enterprise solution that can deliver on the promises made when the technology was originally conceived. This is because a small handful of providers have arrived at the inevitable conclusion. In order to deliver software that is widely adopted in the market, a number of changes have to be made to how it is packaged and delivered.

The new market mandate is for ECA technology that is able to provide a quick snapshot of an organization's data, can be leveraged for both ECA and review, is simple enough to be used by the senior-level attorneys who generally conduct this work, and provides users with measureable confidence that the data they've based their strategic decisions on is truly representative of the entire corpus.

Translated more simply, the ECA technology that will provide the greatest value to organizations subject to legal or regulatory action will be those applications that cast a wide net on all your data, are simple to use, are highly transparent (i.e., do not rely on black-box search), are integrated into an end-to-end eDiscovery solution, and can deliver measureable certainty that you've seen what needs to be seen.

While simple in concept, this is a tall order that very few technology vendors will be able to fulfill going forward.

A New Breed Of ECA Technology

One company that has made great strides in delivering a market-driven ECA solution is RenewData, an eDiscovery, archiving, and information governance service provider. Its Vestigate software is based on a methodology that was being used with an exclusive set of clients and which has just recently been translated to a technology-based offering for the mass market. This Software as a Service (SaaS) solution lets humans take back control of their data, and is ahead of the curve in terms of delivering the value that organizations are now demanding.

There are three key components of the software that accelerate access to relevant documents and provide measurable accuracy to ensure that important documents have not been missed:

1. The first key component is a simple user interface that allows a small team to quickly identify what's relevant in a given document just by using a mouse to highlight critical language (or metadata) that's relevant to the case.

2. The system then finds all similar documents using nothing more sophisticated than Boolean searching, and automatically bulk tags those documents to eliminate the need to read significant amounts of redundant data. This happens until it appears that all potentially relevant documents have been identified.

3. The final key aspect of Vestigate is statistical sampling for quality control. This important analysis is put in place to provide confidence that you have taken reasonable steps to locate and analyze the most critical data. This process, based on zero-defect testing that is widely used in many industries (such as pharmaceutical drug testing), delivers a measurable confidence levelup to 99.9 percent certainty that all relevant documents have been identified.

Most Vestigate clients start out with an 85 percent confidence level that the critical data has been analyzed during the ECA stage, which is much higher than humans are capable of achieving on their own with redundant tasks, according to a wide range of published reports. After reading only five to six percent of the total data in question, organizations have a very good sense of what's contained within their data and have their most senior-level attorneys interact with the system (regardless of their comfort with technology) to make the key strategic decisions for a given case.

The ease-of-use and measureable certainty are two clear differentiators for Vestigate, but another is its integration in an end-to-end eDiscovery solution and its ability to be leveraged for both ECA and review. If the senior attorneys decide that they intend to fight a case after their analysis, they can then go back to the data in Vestigate and keep working. Using the exact same tool, they can proceed with first-pass review and have a very small team mark data for relevance. Generally, using the same text-highlighting, bulk-tagging, and quality-control capabilities, the team will only review about 15 percent of the overall dataset, achieve up to a 99.9 percent confidence level that they've reviewed all potentially relevant data, and can ultimately save the organization up to 70 percent in overall review costs.

Summary

ECA is a hot topic in eDiscovery circles (and boardrooms) today for a good reason. The cost of attorney review is extremely high, and it's only destined to increase as the volume of data expands. A number of technologies are available to help organizations bring these costs in line.

But buyer beware - not all ECA solutions being sold in the market today are the same. In fact, there is a wide range of offerings available, many of which have yet to evolve from concept to solution. Make sure you understand what each software provider is delivering and look for a solution that allows you to get a good sense of what your data is telling you about the case at hand - without forfeiting overall cost savings or certainty that you've seen what needs to be seen before you make your decisions.

eDiscovery Tricks and Treats for 2009

As the beautiful fall days of 2009 slowly drift by and Halloween quickly approaches, I am reminded of some of the tricks and treats facing the eDiscovery market in the remainder of 2009 and into 2010. Therefore, following is my short list of "things" that players, whether users, vendors or consultants, in the eDiscovery market need to face. Some of these items are real "treats". And others may seem like tricks. Overall, its just part of the evolution of the eDiscovery market and therefore I hope that none of these items scare anyone too much!!

1. Its not a trick that the increase in the volume of Electronically Stored Information (ESI) is accelerating at an alarming rate (i.e. paper is so yesterday and tapes are not that far behind).
2. I think that its a real treat that Cloud Computing is taking hold faster than the market thought that it would (not me by the way!)
3. Its going to be a real treat for technology vendors as the "Cloud" emerges as the defacto storage location, Software-as-a-Service (SaaS) eDiscovery solutions need to be given serious consideration.
4. Its a real treat that conceptual search technology and advanced analytics (i.e. something a little more robust than keyword searching) is going to be required in more matters than anyone thinks as the eDiscovery vendors move these technologies into mainstream eDiscovery solutions.
5. It's no trick that there is going to be a convergence of eDiscovery and Governance, Risk and Compliance (GRC) faster than anyone realizes with eDiscovery becoming a sub-market of GRC (where have you heard that before?).
6. It will be a real treat when an integreated SaaS/Cloud based eDiscovery solution emerges later this year or early 2010 that supports the entire EDRM model and most of the requirements for GRC.
7. It may be a trick and certainly no treat for some that Federal and State judges are quickly moving up the eDiscovery learning curve and therefore it is already close to impossible to assume ignorance on the bench and push through outrageous claims regarding almost any issues with ESI and eDiscovery.
8. It will be a real trick for eDiscovery to become a standard practice with standard certifications. But, it will be a real treat when it happens.
9. It will be a real treat when players in eDiscovery better become familiar with terms like Lean Six Sigma and BPM. But, probably a real trick to get is all to work.
10. And, my favorite trick or treat for Halloween 2009 is the prediction that there willl be a matter where all of the responsive and relevant evidence comes from Twitter or Facebook. And, many in the industry will say, "what's Twitter and Facebook?". Better go ask your kids?

Participate in an eDiscovery Research Survey

Radu Stancut and Professor Gerard Becker from the Department of Management adn Information Technology, the School of Continuing and Professional Studies, New York University asked me to invite professionals from the eDiscovery industry to partipicate in an online research study of the effects the changes to the Federal Rules of Civil Procedure (FRCP) have had on the relationship between corporate clients and their respective outside counsel. Click Here to get a link to participate in the study.

Fulbright's 6th Annual Litigation Trend Survey Report Indicates that It's a Great Time to be an eDiscovery Vendor

Fulbright's 6th Annual Litigation Trend Survey Report is out and there are some really exciting trends to report for those of us in the eDiscovery market.

Fulbright’s 6th Annual Litigation Trends Survey Report was conducted from May through July by Greenwood Associates, a business research firm in Houston that has produced previous editions of the report. The survey, launched by Fulbright in 2004, is the largest polling of corporate counsel on litigation issues and concerns.

Fulbright’s 2009 survey asks companies to consider, among other things, what types of litigation most concerns them, where they’re spending limited budgets and how they are adjusting approaches to litigation management in light of the downturn. This year's survey also delves into special topics, such as how companies are dealing with rising e-discovery costs and employee use of social media Web sites, such as Facebook and Twitter.

The survey reflects information collected from 408 company lawyers—13% more respondents than last year—most of whom identify themselves as either general counsel or head of litigation. Companies polled are both public and private, and span industry groups, from education to energy, engineering, financial services, healthcare, insurance, manufacturing, real estate, retail and technology. A quarter of respondents do business in at least 11 countries. Companies in the survey also are well-represented by size: 16% report revenues of under $100 million, while 31% have revenues between $100 and $999 million, and another 53% are at $1 billion and above.

First of all, accoring to the report, corporate counsel say they are steeling themselves for a big year of litigation with 42% of U.S. respondents anticipating an increase in legal disputes their companies will face in the next 12 months. So that is great new for all the eDiscovery vendors and consultants. That is up from 34% of last year’s respondents. The expectation comes during a year when 83% of U.S. respondents reported that new litigation has been commenced against their companies in the past year, up from 79% last year.

In the year to come, respondents from large-cap companies reported the highest expectation of litigation, with 52% forecasting an increase in legal disputes, while 47% of public company respondents foresee a jump in disputes. The economy was cited as the primary reason for these expectations by 38% of U.S. respondents and 34% of U.K. respondents.

More than one-third of companies say the economic downturn has resulted not only in an increase in their litigation caseloads, but also their use of alternative fees. Tighter cost control, more than anything else, is the most important way in which the economic crisis has affected litigation management, respondents say. So, although the report doesn't come right out and say this, it is obviously a great time to be an eDiscovery vendor and the prospects for even more matters appears to be strong.

Click Here to Download a Copy of the Report

Will California's New Rules for eDiscovery Increase Costs?

By now, we all know that Califronia Governor Schwarzenegger signed California Assembly Bill 5 into law on June 29th, 2009 dramatically expanding upon the federal requirements for playing nicely in eDiscovery as stated in the Federal Rules of Civil Procedure (FRCP). However, no one knows for sure how this new law will effect the cost.

Therefore, this past couple of weeks, I have been investigating the fallout from these new rules and wanted to share some of what I have found.

First of all, let's review what Bill 5 actually says. In a september 9, 2009 blog posting on the DCIG Blog titled "California's New State Law Raises eDiscovery Stakes; Costs Poised to Skyrocket" , Howard Haile listed the following points of interest in the Electronic Discovery Act:

1. The California law differs from the FRCP in how it approaches data in "a reasonably useable form". If your company is subject to an eDiscovery request, the burden will be upon you to provide the information in a reasonably useable form. This is a big departure from FRCP. This new wording could lead to a large expense for a company as definitions of a "reasonably, useable form" are worked out.
2. Expands eDiscovery beyond inspection and copying to include testing or sampling of ESI. This act expands existing eDiscovery procedures and demands that can be made for inspection of ESI to include copying, testing or sampling of ESI.It also allows for a party to demand that another party of someone acting on that party's behalf, to inspect, copy, test, or sample ESI in the possession, custody, or control of the party when an eDiscovery demand is made.
3. Parties that fail to produce ESI pursuant to a discovery request may face monetary sanctions. This sets a new precedent that organizations must now consider. Before they mostly just had to contend with costs at the federal level. Now the state of California has the power to levy monetary sanctions as well
4. Sanctions are prohibited if failure to produce ESI is due to routine, good faith business operations. I consider this California's version of the safe harbor provision, but as with FRCP, safe harbor can be elusive as evidenced by the aforementioned statistics on sanctions.

Mr. Haile went on to further point out that There is much more to this act, including more notable departures from the language of the FRCP. Overall this is a detailed act with new risks and eDiscovery considerations that now impact organizations if they end up in the California state court. Like all risks, it all boils down to costs but the big question organizations have to answer is, "What is the cost of complying versus doing nothing and taking a reactive approach to an eDiscovery to deal with it only if and when it hits you?"

Current case law in California for cost shifting is found in Toshiba America Electronic Components vs. Superior Court (2004, 21 Cal Rptr. 3d at 532) where the Court concluded that California Code of Civil Procedure Section 2031(g) (1) shifts the cost of providing compilations of electronic data in a usable format to the demanding party. However, it is now clear if this precedent will continue to be the rule?

In discussions the past two weeks with General Counsel from California based corporations and with partners from some of the larger California law firms, I didn't get the impression that Bill 5 was on the top of anyone's list of concerns. However, I don't think that anyones "hair was on fire" due to eDiscovery collection or production issues either. But, it is just a matter of time before it will be. And, for those litigatore who have not really been paying attention to the changes in the FRCP, the new California Bill 5 and the bills from other states that are sure to follow, there are going to be additional costs involved in any cases that require eDiscovery. Which, with the accellerating increase the amout of ESI, is probably close to 100% of all matters in 2009 and beyond.

Iny any case, chagnes in eDiscovery practices, law and costs are here to stay in California and the rest of the United States. And, the litigators that "don't pay attention" may in fact get "terminated". And, it is going to cost more to litigate in 2009 and beyond than in did in previous years where Electronically Stored Information (ESI) was just not that prevalent. However, even if you wait until ther terminaor is cashing you and/or your hair is on fire, there are ways to contorl costs and get eDiscovery done properly. And, it might even make sense to proactively beging to think about how you are going to handle eDiscovery and maybe even take some steps to be prepared so that your hair never does catch on fire.

Over the next couple of weeks, I will be gathering more specific information about the increasing cost of eDiscovery in California due to Bill 5 and the costs everywhere due to the changes in the FRCP.

So, if anyone has any input, send it to me and I will include it in my next posting on this topic.

eDiscovery Solutions Group to Offer File Transfer Security Solution to Technology Vendors and End-users in eDiscovery and Governance, Risk and Compliance (GRC)

With the accellerating increase in the amount of Electronically Stored Information (ESI) and the subsequent exponential increase in the amount data that has to be saved, collected, analyzed and produced to meet the reporting reqirements of today's global enterprise, file transfer security and integrity should be on the minds of every CIO and General Counsel in the world. However, I believe that many of us have been lulled into a false sense of "secutiry" and throw around terms like MD5 and SHA hash, SSL certificates and ditigal signatures to cover our true understanding of whether or not "our data" is really safe.

Following the lead of IBM, Sun Microsystems and the UK Government, eDiscovery Solutions Group believes that there is market for next generation file transfer security and integrity and has therefore announced that is has formed a partnership with Tru Data Integrity Limited to Market the TruSeal™ Electronically Stored Information (ESI) Integrity and File Transfer Security Solution to Technology Vendors and End-users in the eDiscovery and Governance, Risk and Compliance (GRC) markets.

The full text of the press release is as follows:

New York, New York (October 6, 2009) - eDiscovery Solutions Group, an emerging leader in providing comprehensive eDiscovery and Governance, Risk and Compliance (GRC) consulting, services and technology worldwide announced today that it has entered into a partnership with Tru Data Integrity Limited, a European-based provider of next generation Electronically Stored Information (ESI) file transfer security solutions.

TruSeal™ is a next generation “disruptive” technology that enables users to digitally fingerprint and timestamp any Electronically Stored Information (ESI), assign a unique digital signature, store the signature and associated information about the ESI on a secure cloud based server and then require any third parties that need to read the ESI to verify their credentials. All calls to and from the server are securely encrypted as is the TruSeal record. In addition, the Software-as-a-Service (SaaS) based system keeps a complete audit log of all activities. Packaged for use by both end-user as a stand-alone system and as a component to be integrated with Governance, Risk and Compliance (GRC), eDiscovery and other ESI management platforms that require a high level of data security and integrity, TruSeal™ is easy to use and will fulfill the integrity requirements of even the most stringent users.

TruSeal™ has successfully completed extensive testing at IBM's Research and Development facility in Hursley in the United Kingdom. TruSeal™ has been granted both hardware and software clearance status for incorporation into value propositions throughout the IBM organization. With IBM’s "chiphopper" and “blue stack” status, TruSeal™ is now immediately available to work with DB2, Lotus Notes and Websphere, Integrations with Domino, Content Manager, Web forms and Tivoli are key elements of the TruSeal™ product roadmap.

In addition, Sun Microsystems has integrated TruSeal™ in a new approach to data retention. Focusing on communication service providers (CSPs), Sun’s Secure Data Retrieval Server (SDRS), combines data storage, highly secure operating system and data management software with TruSeal™ to provide a solution to the new EU Communication Data Retention initiative.

Further, Tru Data Integrity’s TruSeal™ product is the sole UK Government accredited product to lend integrity to any digital information on a COTS (commercial off the shelf) product. The GGAP objective is to establish and formalize partnerships with IT and business suppliers, and thereby facilitate innovation to assist the EDT in the implementation of the Transformational Government Agenda.

Under the terms of the partnership, eDiscovery Solutions Group will immediately begin marketing TruSeal™ to the legal and IT departments of the Global 2000, law firms and to Governance, Risk and Compliance (GRC), eDiscovery and other ESI management platforms that require a high level of data security and integrity.

“ESI security and integrity is an issue that has been on the minds of every CIO in the Global 2000 for the past 10 years. However, when you now have the real requirements of GRC and eDiscovery brought on by changes to the federal rules of civil procedure and beefed up government statutes to address the collapse of worldwide financial systems in 2008, ESI security and integrity may be the single most important issue facing the Global 2000 in 2009 and beyond,” states Charles Skamser, President and CEO of eDiscovery Solutions Group. “Therefore, we are very pleased to have formed a partnership with an organization with the reputation of Tru Data Integrity Limited and believe that together we will be very successful addressing the needs of the ESI security markets for years for come,” added Mr. Skamser.

Tru Data Integrity Limited is a company of Singlepoint Holdings Limited, a privately funded international group, founded in 2003 to address the compliance and legality issues affecting digital data.

Singlepoint Data Services Ltd, Tru Data Integrity’s sister company, was born to meet the requirements of the Regulation of Investigatory Powers Act (2000) (RIPA). It is the only organization accredited by the Home Office to act as a 'clearing house' for acquisition of communications data, as held by Telecommunications and Internet Service Providers for lawful business purposes. Access is required by a range of Law Enforcement Agencies including the Security and Intelligence Services, all Police Services, and a number of National Regulatory Bodies for the purpose of supporting criminal investigations.

“We are very pleased to be partnering with eDiscovery Solutions Group and becoming a member of the eDiscovery Solutions Group worldwide consortium, “stated Alun Thomas, Chief Executive Tru Data Integrity Limited, “We believe that TruSeal™ will have an immediate and lasting impact on the GRC and eDiscovery markets for both end users and solution vendors, ” added Mr. Thomas.

The worldwide security software market will total $14.5 billion in 2009, an 8 per cent increase from 2008, according to Gartner, Inc. In 2008, it grew at 19 per cent, and Gartner anticipates the market to grow 13 per cent in 2010 as revenue will total $16.3 billion. In Europe, the security software market will total €3.2 billion in 2009, representing 7 per cent growth from 2008.

“Although the worldwide security software market is affected by the economic downturn, the growth will continue to be strong in 2009 as security remains a critical area where drastic cuts cannot be afforded,” said Ruggero Contu, principal research analyst at Gartner. “In the medium term, the greatest growth opportunities will come from software as a service (SaaS), appliance based offering and small and medium businesses (SMBs), which are in security catch-up mode compared with large companies and therefore spend a higher percentage of their budgets on security.

Additional information is available in the Gartner report “Market Trends: Security Markets, Worldwide, 2007-2013.” The report is available on Gartner’s website at http://www.gartner.com/DisplayDocument?ref=g_search&id=1107215&subref=simplesearch.

About Tru Data Integrity Limited Tru Data Integrity Limited is a company of Singlepoint Holdings Limited, a privately funded international group, founded in 2003 to address the compliance and legality issues affecting digital data.

Singlepoint Data Services Ltd, Tru Data Integrity’s sister company, was born to meet the requirements of the Regulation of Investigatory Powers Act (2000) (RIPA). It is the only organization accredited by the Home Office to act as a 'clearing house' for acquisition of communications data, as held by Telecommunications and Internet Service Providers for lawful business purposes. Access is required by a range of Law Enforcement Agencies including the Security and Intelligence Services, all Police Services, and a number of National Regulatory Bodies for the purpose of supporting criminal investigations.

As RIPA is among the most stringent and robust of all compliance acts in Europe or North America, Tru Data Integrity was created to apply this model to other compliance areas. Tru Data Integrity delivers irrefutable data integrity for intellectual property protection, litigation and compliance purposes by sealing, transferring, managing and storing electronic information including documentation, imagery, video or audio files. For more information, visit http://www.tru-dataintegrity.com/

About IBM
For more information about IBM, visit http://www.ibm.com/.

About Sun MicroSystems
Sun Microsystems develops the technologies that power the global marketplace. Guided by a singular vision -- "The Network is the Computer" -- Sun drives network participation through shared innovation, community development and open source leadership. Sun can be found in more than 100 countries and on the Web at http://sun.com/.

About Gartner
Gartner, Inc. (NYSE: IT) is the world’s leading information technology research and advisory company. Gartner delivers the technology-related insight necessary for its clients to make the right decisions, every day. From CIOs and senior IT leaders in corporations and government agencies, to business leaders in high-tech and telecom enterprises and professional services firms, to technology investors, Gartner is the indispensable partner to 60,000 clients in 10,000 distinct organizations. Through the resources of Gartner Research, Gartner Consulting and Gartner Events, Gartner works with every client to research, analyze and interpret the business of IT within the context of their individual role. Founded in 1979, Gartner is headquartered in Stamford, Connecticut, U.S.A., and has 4,000 associates, including 1,200 research analysts and consultants in 80 countries. For more information, visit http://www.gartner.com/.

About the Forbes Global 2000
The Forbes Global 2000 is an annual ranking of the top 2000 public companies in the world by Forbes magazine. The ranking is based on a mix of four metrics: Sales, Profit, Assets and Market value. The list has been published since 2003. For more information on the Forbes Global 2000 list for 2009, visit: http://www.forbes.com/lists/2009/18/global-09_The-Global-2000_Rank.html

About eDiscovery Solutions Group
eDiscovery Solutions Group is an international consortium of leading independent eDiscovery consultants, eDiscovery consulting firms, regional litigation service providers and best-in-class eDiscovery technology companies that have come together to provide all of the services, consulting and technology necessary to support the entire eDiscovery lifecycle for the legal departments of corporations, the IT departments of corporations that need to support eDiscovery requirements and litigation centric law firms.

With a growing consortium of partners worldwide, eDiscovery Solutions Group offers a broad array of eDiscovery consulting, services and technology along with project management to support the entire eDiscovery lifecycle. Following the eDiscovery processing paradigm of the Electronic Discovery Reference Model (EDRM), eDiscovery Solutions Group has developed an eDiscovery best practices framework that includes consulting, collection, analysis, processing, production, review and presentation.
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Standards Need to Emerge for Collecting and Processing Electronically Stored Evidence (ESE)

Most litigators and their litigation support staff that have been practicing over the past 5-10 years could probably teach a class on the process of preservation, collection, processing, review and production of paper evidence. Or, at least they could stand at a whiteboard and draw a basic workflow diagram of the basic steps.

However, with the dramatic and accellerating increase in the amount of Electronically Stored Information (ESI) which I like to call Electronically Stored Evidence (ESE), the subsequent technical issues and the associated changes to the Federal Rules of Civil Procedures (FRCP), very few, if any of the same litigators and their staff, can now even describe the most basic workflow to to get ESE for a trial. Therefore, although many are talking of their importance (myself included), eDiscovery standards of any substance, are a long way off.

This is certainly not the fault of the lawyers as they have never been required to have much of true understanding of the technology of processing evidence in order to be successful litigators. However, the bar has now literally been raised and litigators can't even provide adequate representation without an indepth understanding of these new issues.

Maybe we should consider requiring a license or some type of ceritification to practice law when eDiscovery is involved? Or, has ESE become so intertwined in our matters that there isn't a case without eDiscovery and therfore every lawyer that want to litigate anything should have to be certified?

As a place to start this discussion / debate, we need to start identifying the basic components of ESE and how it is stored, how to preserve it, how to extract it (the new word for collection), how to process it, how to review it, and how to produce it.

Wouldn't it great if 5 years from now, litigators could stand at a whiteboard and diagram and explain the basic "standard" components of the workflow for processing Electronically Stored Evidence (ESE)?

Eric P. Blank addresses these issues in an excellent article titled,"The Need for E-Discovery Standards: A Call From the Trenches", posted on October 5, 2009 on the EDD Update Blog.

Eric P. Blank is the founder and managing attorney of Blank Law + Technology PS. His practice focuses on electronic discovery counseling, e-security response planning and implementation, investigations and computer forensics. Mr. Blank has conducted more than 300 investigations into computer and software-related torts and employee misconduct since 2001 and has frequently been a court-appointed special master or neutral in e-discovery matters.

The full text of Mr. Blank's post is as follows:

Most discussion about standards in electronic discovery focuses on the big-picture issues of scope, cost and cost shifting.

These are important questions eloquently argued in the courts. However, they overlook the mundane, pick-and-shovel e-discovery concerns that affect every case. I’m talking about the elementary technical issues of preservation, extraction, processing, review and production.

I’m talking about extracting data from electronic storage media, processing the data and its metadata into a document review software application platform, supporting the review and producing the data as discovery or evidence.

Outside the e-discovery world, the first stage of this process is known as Extract, Transform, Load (ETL). Identifying and overcoming the challenges of ETL have occupied computer scientists for decades. Principal obstacles to effective ETL include widely diverse and poorly documented storage repositories, asynchronous multimedia platforms, constantly evolving software, hardware and software anomalies, and human error, usually with respect to initial planning.

E-discovery vendors on the ground face those obstacles and more. Consider, as just a few of many examples, the following:

Mobile phones and PDAs: In some models, data can be extracted through forensic imaging. In others, such as many of those without SIM cards, data can only be pulled through live file extraction. Click here and here to read my earlier blog posts about the difference between forensic imaging and live file extraction. In any case, the question is this: Should data extraction scope be defined by current technical capabilities, or should there be a single common standard – such as live files only – for those instances when mobile phones and PDAs are subject to e-discovery?

A multitude of file types: Extraction and processing applications address dozens, sometimes hundreds, of file types. These file types are usually associated with, and identified by, a particular file extension, such as .doc or .xls. However, custom extensions are easy to apply – documents I create might have a .epb file extension, for example – and it is also simple to apply a nonstandard extension to a particular file type (e.g., a .doc extension to a PDF file). These are often missed, or improperly processed, by extraction and processing software.

Computer forensics software in the hands of an experienced technician can reveal documents by file type without relying on extension format and such, but doing so is costly and time consuming. What checks should be done for mislabeled or unusual file extensions? When are such checks required?

Metadata: Most of us think of metadata in basic terms such as the putative author, creation date, modification date, last-access date and so forth. However, metadata varies widely across data types. Microsoft Office documents, for example, have more than 100 metadata fields. It is also possible to create custom fields with many document types. Nearly all of these, such as the ubiquitous P-size and L-size, are nearly never important in civil litigation.

“Nearly never” is not, however, the same as “never.” Such data can be extracted, but it is not, as a rule, supported by processing software, which renders it unavailable at the attorney review level. Is it possible to agree on which metadata fields should be preserved and processed? When they should be processed? Which fields are important forensically? When all fields should be preserved?

Rapid technological change: Software is updated all the time. This affects how metadata is produced and the appearance of electronic documents. Processing software hasn’t kept up. It’s also inconsistent. For example, the last-access date on a Word 2007 document running in Windows Vista is affected differently than an Office XP Word document running on Vista. Both documents, however, are processed the same, as if the metadata means the same, when it does not. How should inconsistencies like this be addressed? What should the typical approach be?

Webmail: Screenshots of Web-based email services such as Hotmail are a common and inexpensive workaround to downloading actual Hotmail files. Which method is preferred? Is either method not preferred? As third-party cloud data repositories multiply, what constitutes best practices with regard to extraction methods will become a critical question.

Capture rates: What percentage capture rate is acceptable for processing software? Many files are often not processed by even the best technology, and must be laboriously hand processed. In a million-item processing job, a 1 percent miss rate equals 10,000 documents not processed and available for review. Is 99 percent acceptable? Is 98 percent? Note: If you think that the processing rate for your document review software is 100 percent, you’re kidding yourself.

Searching: Keyword searching, including keyword searches supported by “fuzzy” search techniques, are giving way to conceptual searching, which is the future of document search and review. Conceptual searching, however, involves proprietary algorithms and processes with a wide range of accuracy. What standards must conceptual searching meet to be accepted? How are these standards applied? When, if ever, is conceptual searching disallowed?

File format: In e-discovery today, most documents are produced in .Tiff format. Putting aside the larger question of whether .Tiff should be the standard for producing electronic documents, what about documents such as spreadsheets that don’t translate well into .Tiff files? In what format should presentation-type documents be produced? As slide shows? As workbook copies with notes and presenters’ comments? How are native files to be tracked and authenticated as a best practice?

Today, e-discovery consultants decide many of these questions on their own or after consulting with litigation counsel. In essence, a consultant decides when it is and isn’t practical to extract files from a system, whether to image a particular hard drive and whether to put aside as unreadable a back-up tape from a set of tapes that must be searched.

Much of the time, the consultant makes the “right” decision, as subsequently decided by the court, the client or the opposing party. It’s a rare consultant, however, who won’t admit that adopting e-discovery standards would bring enormous benefit to the practical challenges of data extraction, processing and production.

I'll be discussing these and other issues in the future. Any of the problems mentioned above could be an entire article. I look forward to working with the legal and technical community to address these “technical” standards – as opposed to the widely discussed “strategic” standards which may ultimately be addressed by changes in the Federal Rules of Civil Procedure.