Do Lawyers Need eDiscovery Certification?

It was reported by those in attendance at the Advanced E-Discovery Institute 2009 held at Georgetown University on November 13, 2009 that a panel of federal judges discussed whether eDiscovery certification should be required for lawyers. Reports from the meeting indicate that, with perhaps a lone exception, the judges collectively agreed that such certification was unnecessary. I have to agree. No eDiscovery certification is necessary…for the lawyers.

The law involving eDiscovery, though emerging, is not very complex. The responsibilities of lawyers in the eDiscovery process is but a subset of overall ethical standards for lawyers, including Competence (Rule 1.1), Diligence (Rule 1.3), Candor to the Tribunal (Rule 3.3) and others. It is also a subset of other discovery obligations that arise from court rules, case law, statutes and other regulatory obligations. Handling eDiscovery should cause litigators and corporate counsel great pause and concentrated attention, but knowing and following the rules of the game are all that is necessary. Lawyers can get up to speed by attending CLEs, reading case law and learning from each other the proper ways to handle a case.

What is really needed is certification for the technology vendors. How does a lawyer, corporation or government know whether they can trust a particular vendor? It is not the lawyer but the technology vendor or client's IT department that must ensure that the ESI collection and preservation is ultimately done correctly. The lawyer must ensure that ESI is preserved, that a vendor is selected that will do the job correctly, that the process is legally defensible, and that the ESI can be admitted as evidence and meets the discovery requests. However, the lawyer is not the one doing the preservation, collection, analysis or processing of the ESI. Lawyers are not expected to do computer forensics on a hard drive! All of this work is done by IT personnel that are hopefully highly trained and competent in what they do. At least that is why we pay them to do this work. It would be great to know that if a vendor has certain qualifications or certification that they will be qualified to do the job.

Lastly, not only is eDiscovery certification not necessary for lawyers it'll never take hold. Lawyers get their "certification" by going to law school, passing the bar, and gaining experience. In no other legal field (with the exception of patent attorneys) is any other "certification" required or demanded. Then why would it be necessary for eDiscovery? In such complex fields as tax, securities, business transactions and litigation no special certification is necessary. eDiscovery is a subset of GRC and discovery obligations and not legal specialty unto itself.

Let’s push for certification for the techies!

Ready or Not: Cloud Computing is Comming to eDiscovery

Today, as I read a really great Blog posting by Jim Ericson on the Information Management Blog site titled, "Clouds: Both Sides Now," I was reminded of how, a couple of months ago, I got aboslutely slammed on my prediction that eDiscovery was ripe for Cloud Computing and the Software-as-a-Service (SaaS) delivery model for eDiscovery applications.

I was told that, "serious corporations will never let their data outside the firewall." And, it was made very clear to me by more than one commenter that serious General Counsel and outside litigators were certainly not going to allow the sensitive data from these serious corporations to be processed, stored, reviewed and then produced for trial outside the hallowed firewall or outside the supposedly secure data centers of the eDiscovery elite firms. I even had one comment that told me take my fancy leading edge technology somewhere else because, "it just doesn't belong in the legal market."

Anyway, that could be. But probably not!! Just as the rest of the world, (outside the hallowed firewalls) is finding out, cloud computing may be just what is needed to solve alot of the problems associated with the accellerating rise in the amount of Electronically Stored Information (ESI).

1. Cloud Computing provides a really cost effective way to archieve ESI
2. Cloud Computing enables the financial costs of really great data centers to be spread across multiple corporations making affordable for all.
3. Software-as-a-Service (SaaS) applications enable "the masses" to get access to really great functionality at an afforable price.
4. Etc, Etc., Etc. (you all know that benefits)

So, once again, it is time for Cloud Computing and SaaS based applications to take their rightful places at the head of the class for next generation eDiscovery solutions. Whether it's email archieving, ESI storage, Early Case Assessment, ESI Analystics, EDD processing, ORTs, Project Managemenet, eDiscovery Workflow or any of the mainstream eDiscovery Solutions, Cloud Computing and SaaS based architectures are the way to go. So, bring on the objections and the complaints and the "no ways". Because this time, I am ready to respond in kind with case studies, financial arguments and whatever else I need to bring to make my point.

Jim always provides a good mix of humor and serious commentary and this posting is no exception. The full text of Jim's post is as follows:

So much messaging on cloud computing has been slamming my inbox lately that I’ve been tempted to tune out, but of course I cannot. I do believe that in the next few years we will reach a tipping point that will touch a lot of IT plans and map a destiny for entrepreneurs.

Over time, cloud computing might do to captive IT what iTunes did to CDs, but in corporate technology, we've rarely seen such a consumer-like gold rush. With everyone behaving so hip and game changing, you can almost smell a cloud TV reality series coming soon. This week alone there’s a Web 2.0 conference and the big Interop event in New York and DreamForce in San Francisco that will probably draw 25,000 people between them. If you’re bored with your inlaws, you can head to Singapore for a Thanksgiving cloud banquet next week.

No one is saying this is a fad or a bad thing or a bust. Six months ago I thought workers were chained to their desks and conferences were out for the year. But now that I am proven wrong, the big vendor industry still looks frustratingly pregnant, with everyone poised in coats and hats, waiting to rush to the hospital. From an outsider's point of view, a lot of vendor marketers are frozen in their boots to find that their messaging is coming true, and that they now have to fill in the blanks in their promises.

The mainstreaming has been under way for a good year. IBM has the only TV commercial on cloud computing I have seen so far, slick as an iPhone ad, more vague but equally portentous. This week, IBM also launched a petabyte-sized business analytics cloud for internal employees, one of those stories that show how much a vendor believes in an IT evolution. To their credit, IBM did very well in a similar internal launch of employee blogs and discussions. IBM's project is also open to customers, and claims their petabyte can contain 100 times the data held in the U.S. Library of Congress. As far as I know these are so far empty bytes, and I'll leave the punch line to others to compare that to our Congress's output of late.

That's why it doesn't surprise me that big software/hardware vendor cloud launches are so strident on message and short on detail. Peruse the messaging of IBM, HP, Oracle, Microsoft, their consultants and all the competitive big names, and see if you disagree. Even Amazon Web Services (AWS) won't speak directly about developments during their latest earnings calls or talk to reporters outside of infrequent press releases and summaries that arrive after business hours on a Friday night. (Now, that's something Congress is good at).

The heart of this evolution isn't servers, it's creativity. The flip side of the public clouds is that corporate experimenters, institutions and SaaS vendors are running all kinds of interesting experiments and production workloads, though most are not visible yet. More important, the open source group movements that gave birth to new business models such as Animoto stands to influence future investments of mainstream companies and startups. Turn a few brainiacs loose with open infrastructure, and some Ph.D. or startup genius will bury a Fortune 1000 company in data processing within a week. And if a simple correct business model proves true, it might well change a company's direction or win on its own with a few keen managers and a bit of investment.

You know the stork is circling when the financial markets jump into the game and pick the winners. Last week, Goldman Sachs put out a fat report complete with a “paradigm shift,” and, in their own branding, a “Techtonic” one. If Goldman’s picks turn out to be true, we can all go back to our desks because the incumbents winners listed are Accenture, Cisco, EMC, HP and IBM. Somebody has a lot of storage and blade servers to sell and configure.

Goldman's list of "disruptors" is a mix of familiar and unlikely names: Brocade, Citrix, F5, NetApp and Juniper, among others. I've never been good at stock picks but I always thought this was an important movement and that I was one of a couple dozen prescient writers when the industry started thinking seriously about this stuff a few years ago. If our foreboding was good instinct, we pushed the button too early and now we’re running out of clever headlines. Gestations can lose congruity when you’re watching events too closely, and we suddenly find ourselves in a slippery moment. Reporters and independent software vendors have this problem in common, we're always regaining our footing, perspective and timing.

Meanwhile, security, integration, networking and other expert skeptics are warning against the cloud with some justification. But even industry veteran Lou Agosta politely ate his words when retail giant Dollar General launched what might be the first reported enterprise data warehouse of its size, some 70 billion records, in the cloud.

My next leading indicator predicts we'll hit the true birth of cloud computing when someone comes up with a good industry cover-up conspiracy, as in RFID chips in dollar bills or cell phones that cause brain tumors. I have seen it before and so have may others. Once that kind of opposition arrives, we will be wheels down. I can only hope I have the right stories in hand when it happens, because it is happening pretty fast.

Autonomy and IDOL are Too Expensive for Most Enterprises

I have been meaning to comment for some time now on Garnter's contention that, "Autonomy is not practical for smaller enterprises."

Fate would have it that this past week, while talking to the Chief Information Officer (CIO) of mid level Global 2000 enterprise, I was actually asked my opinion on the "true cost" of implementing Autonomy as the foundation for a Governance, Risk and Compliance (GRC) and eDiscovery proactive Electronically Stored Information (ESI) Management platform. My answer quickly moved the discusssion to the cost of implementing Autonomy's Intelligent Data Operating Layer (IDOL).

First of all, I want to state that the comment "Autonomy's vision for the value of its Intelligent Data Operating Layer (IDOL) at the largest enterprises and for strategically engaged OEMs remains irreproachable and exceptional. Its practical value in many smaller installations remains problematic, as it is a challenge to implement and adopt" that I am referring to came from a Gartner report released on July 13, 2009 by Whit Andrews, titled "Autonomy IDOL for Information Access: Effective for Strategic Use; Difficult for Smaller Implementations"

Back to my discussion, the annual sales for the company that this CIO works for is in the $5 Billion range and therefore has a rather hefty IT budget even in these troubling economic times. However, I was quick to point out that because Autonomy's solution sits on IDOL, it requires a multi-million dollar investment, a 12 month implementation plan and a team of IT professions to maintain. As such, my caution was that he not view it as a casual decision. And, moving my thoughts to companies in the less than $1Billion in sales range and smaller, I am hard pressed to see how the Autonomy solutions is even an option (And, know people that either work or have worked at Autonomy, I would suggest that would agree with this positioning).

As backup for my opinion, I also cited a Blog posting by Aaref Hilaly on August 31, 2009, titled, "When It Comes To E-Discovery, Beware Of IDOL Worship" and threw in the disclaimer that Mr. Hilaly was the CEO of Clearwell which has a somewhat competitive and much less expensive eDiscovery solution that competes with Autonomy.

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

There is no greater euphemism than the word “strategic”. Whenever a company announces a “strategic acquisition“, you know it paid a ridiculous price which cannot be justified any other way; when someone does a “strategic deal“, it means the economics favor the other party; and, when someone says a product is good for “strategic use”, it means the product does not really work or deliver any value today, but might in the future. So it was with great interest that I read Gartner’s recent research note entitled “Autonomy IDOL for Information Access: Effective For Strategic Use; Difficult For Smaller Implementations“. The author is Whit Andrews, who is not only one of the most cogent observers of the electronic discovery market, but also articulate, erudite and given to occasional poetry-writing. So the nuance of the word “strategic” is not lost on him.

IDOL, which is the underlying technology behind Aungate, is a powerful, flexible, extensible platform. But it only works if you spend several millions of dollars on software licenses, and dedicate a full-time team of at least 3 people to maintain it. Autonomy has sought to address some of these issues with a lower-priced package called Retina, but you’d be hard-pressed to find any successful implementations of it.

So, who IS using Autonomy and powering the company’s strong financial performance? And what are they using it for? The answer, from my own experience, is very large companies and government agencies that make multi-year, multi-million dollar commitments. In return, Autonomy becomes a “strategic partner”, an extension of a customer’s in-house IT team, and works closely with them on installation and customization. Typically, the product is used for large scale, complex, enterprise search, and proactive information management.

Like all of us, Autonomy is a product of its time. Started in the late 20th century, it is a traditional enterprise software company, like Siebel or PeopleSoft, which offers a product which is powerful, flexible, but expensive, hard to use, difficult to implement. By contrast, modern 21st century web-applications, like salesforce.com or Netsuite, come from the opposite end of the spectrum. They make simplicity, and ease-of-use their design center, and seek to offer the subset of functionality you really need at a small fraction of the cost of traditional software.

From a customer perspective, either can work – it’s all a question of what you want. Are you more comfortable with an easy-to-use, quick-to-deploy, low-cost web application for e-discovery, or do you place “strategic value” on the flexibility and infinite customization of traditional software? This note from Gartner will help you make the right decision.

So, I got my chance to talk about this issue. However, since I am actually much more interested in this topic, over the next couple of months, I plan to try and find some real financial data and true comparisions. Clearwell is definitely one of the less expensive next generation competitors to the eDiscvoery part of Autonomy.

However, there are many many more and even new eDiscovery solutiuons on the market. As an example, you are going to start hearing about Venio Systems who has an exciting new Early Case Assessment Tool (ECA) that will compete with Clearwell and therefore by Clearwell's own definition, compete with Autonomy. I plan to provide a complete review on Venio Systems and other next generation ECA tools in the weeks to come. If anyone would like to submit their ECA product or a case study of the cost of implementing either Autonomy or one of the next generation ECA solutions, I would be more than happy to publish them.

eDiscovery Jumping Back In-House

Beyond vendor predictions and the ancedotal evidence, analyst spending reports and surveys are now begining to indicate that eDiscovery is jumping back in-house.

Gartner predicted that spending on eDiscovery software will grow to more than $1 billion in 2009, up 33 percent from 2008, with much of the spending comming from moving eDiscovery in-house. Bud­gets for man­ag­ing elec­tronic data tripled this year at average-​​sized U.S. com­pa­nies, accord­ing to a study, as busi­nesses braced for an influx of law­suits stem­ming from a reces­sion that’s been partly blamed on fraud. As I have reported on this Blog, I find Gartner's prediction of more spedning in 2009 to be reflective of what I am seeing in the industry worldwide as long as you view the increase from the perspective of increases in in-house IT spending to address the overall need to provide next generation document mangement infrastructure and Governance, Risk and Compliance (GRC) with support for eDiscovery being a willing benefactor.

To add even more credibility to the arguemnt, in addition, a recent survey by Kroll Ontrack Inc indicated in that com­pa­nies spent about $1.29 mil­lion each on man­age­ment of elec­tronic data this year, com­pared with $437,000 last year, accord­ing to the sur­vey by con­sult­ing com­pany.   That is almost a 300% increase. The data, released  in late October 2009, were based on inter­views in June, July and August with in-​​house lawyers and tech­nol­ogy spe­cial­ists at 231 U.S. and 230 U.K. companies.  Again, most of this additional expenditure is probably not showing up as an increase in spending on eDiscovery.

The most recent evidence was reported on November  16, 2009 on the NearShore Journal Site in a press release by Clearwell tittled "Survey Finds 73 Percent of Enterprises Plan to Bring E-Discovery In-House in Response to Rise in E-Discovery Requests".  In the press release, Clearwell announced findings from a survey conducted in partnership with analyst firm Enterprise Strategy Group (ESG). The survey, titled “Trends in Electronic Discovery: A Market Perspective” quantifies both the rise in e-discovery and litigation over the past year. Additionally, the survey findings reinforce the need for increased enterprise readiness to manage the expected growth in volume of cases in 2010.  This is probably the most eDiscovery centric indication of the increase in spending as I would assume that Clearwell was looking for evidence that corporations were spending more money on Early Case Assessment (ECA) solutions

I realize that not everyone in the eDiscovery industry is seeing these trends and reaping the rewards of this increase in speding.  However, the spending is real, it has just jumping in-house and may not be listed under a line item called eDiscovery.

Prediction: With the impdening crash of the worldwide commerical real estate market and the subsequent institutional  failures and eventual legal actions, I see 2010-2012 being even bigger. However, it is not clear if these will be handled in-house or by law firms.  I think that this may be one last bite at the eDiscovery processing apple outside of the corporation.

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.