This Page

has been moved to new address

The eDiscovery Paradigm Shift

Sorry for inconvenience...

Redirection provided by Blogger to WordPress Migration Service
----------------------------------------------------- Blogger Template Style Name: Snapshot: Madder Designer: Dave Shea URL: / Date: 27 Feb 2004 ------------------------------------------------------ */ /* -- basic html elements -- */ body {padding: 0; margin: 0; font: 75% Helvetica, Arial, sans-serif; color: #474B4E; background: #fff; text-align: center;} a {color: #DD6599; font-weight: bold; text-decoration: none;} a:visited {color: #D6A0B6;} a:hover {text-decoration: underline; color: #FD0570;} h1 {margin: 0; color: #7B8186; font-size: 1.5em; text-transform: lowercase;} h1 a {color: #7B8186;} h2, #comments h4 {font-size: 1em; margin: 2em 0 0 0; color: #7B8186; background: transparent url( bottom right no-repeat; padding-bottom: 2px;} @media all { h3 { font-size: 1em; margin: 2em 0 0 0; background: transparent url( bottom right no-repeat; padding-bottom: 2px; } } @media handheld { h3 { background:none; } } h4, h5 {font-size: 0.9em; text-transform: lowercase; letter-spacing: 2px;} h5 {color: #7B8186;} h6 {font-size: 0.8em; text-transform: uppercase; letter-spacing: 2px;} p {margin: 0 0 1em 0;} img, form {border: 0; margin: 0;} /* -- layout -- */ @media all { #content { width: 700px; margin: 0 auto; text-align: left; background: #fff url( 0 0 repeat-y;} } #header { background: #D8DADC url( 0 0 repeat-y; } #header div { background: transparent url( bottom left no-repeat; } #main { line-height: 1.4; float: left; padding: 10px 12px; border-top: solid 1px #fff; width: 428px; /* Tantek hack - */ voice-family: "\"}\""; voice-family: inherit; width: 404px; } } @media handheld { #content { width: 90%; } #header { background: #D8DADC; } #header div { background: none; } #main { float: none; width: 100%; } } /* IE5 hack */ #main {} @media all { #sidebar { margin-left: 428px; border-top: solid 1px #fff; padding: 4px 0 0 7px; background: #fff url( 1px 0 no-repeat; } #footer { clear: both; background: #E9EAEB url( bottom left no-repeat; border-top: solid 1px #fff; } } @media handheld { #sidebar { margin: 0 0 0 0; background: #fff; } #footer { background: #E9EAEB; } } /* -- header style -- */ #header h1 {padding: 12px 0 92px 4px; width: 557px; line-height: 1;} /* -- content area style -- */ #main {line-height: 1.4;} {font-size: 1.2em; margin-bottom: 0;} a {color: #C4663B;} .post {clear: both; margin-bottom: 4em;} .post-footer em {color: #B4BABE; font-style: normal; float: left;} .post-footer .comment-link {float: right;} #main img {border: solid 1px #E3E4E4; padding: 2px; background: #fff;} .deleted-comment {font-style:italic;color:gray;} /* -- sidebar style -- */ @media all { #sidebar #description { border: solid 1px #F3B89D; padding: 10px 17px; color: #C4663B; background: #FFD1BC url(; font-size: 1.2em; font-weight: bold; line-height: 0.9; margin: 0 0 0 -6px; } } @media handheld { #sidebar #description { background: #FFD1BC; } } #sidebar h2 {font-size: 1.3em; margin: 1.3em 0 0.5em 0;} #sidebar dl {margin: 0 0 10px 0;} #sidebar ul {list-style: none; margin: 0; padding: 0;} #sidebar li {padding-bottom: 5px; line-height: 0.9;} #profile-container {color: #7B8186;} #profile-container img {border: solid 1px #7C78B5; padding: 4px 4px 8px 4px; margin: 0 10px 1em 0; float: left;} .archive-list {margin-bottom: 2em;} #powered-by {margin: 10px auto 20px auto;} /* -- sidebar style -- */ #footer p {margin: 0; padding: 12px 8px; font-size: 0.9em;} #footer hr {display: none;} /* Feeds ----------------------------------------------- */ #blogfeeds { } #postfeeds { }

Thursday, October 15, 2009

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

Labels: , ,

Wednesday, October 14, 2009

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.

Labels: , ,

Monday, October 12, 2009

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

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

About IBM
For more information about IBM, visit

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

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

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:

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.
Within this framework, the eDiscovery Solutions Group can deliver data retention policy, development, data archiving, eSecurity, eCompliance, eDiscovery readiness, strategic planning, implementation support, paper and ESI collection, investigations, expert testimony, data recovery, computer forensics, early case assessment, data analysis, data redundancy management, conceptual search, de-dupe, near de-dupe, scanning, copying, coding, language translation, EDD, TIFF conversion, hosting, on-site, on-shore and off-shore review, legal process outsourcing (LPO), courtroom graphics and presentations, tool training, systems integration and custom solutions. For more information about eDiscovery Solutions Group, please visit:

Labels: , , , , , , ,