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The eDiscovery Paradigm Shift

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Thursday, February 11, 2010

How is Outside Counsel Doing wtih eDiscovery?

I grew up in the world of Global 5000 Business Process Automation (BPA), Business Process Improvement (BPI), Business Process Management (BPM) and Balanced Score Cards. Therefore, I can sling information and business consulting acronyms with the best of them. However, now that I live in the world of eDiscovery and Governance, Risk and Compliance (GRC), I am faced with an industry that, for the most part (there are some exceptions), is just not familiar with the practice of BPM or its benefits. And, in many cases it is literally a matter of "not even knowing what you don't know." Therefore, I believe that the next big market for BPM and all of its associated glory is the GRC and eDiscovery markets. After all, I can't help by wonder if there are any General Counsel in the Global 2000 that would like to know how their outside counsel would score on an independent eDiscovery and GRC Assessment. And, there may even be some CEOs or Board of Director members that would like know how their legal departments would score on an independent internal eDiscovery and GRC Assessment.

As a place to start, I wanted to comment on some of the finding by Elise Olding in the Gartner RAS Core Research Note G00165528 from March 12, 2009 titled, "It's a Matter of Survival: Use BPM to Drive Out Costs".

Ms. Olding put forth the proposition that, "In a troubled economy, struggling companies often cut costs broadly and blindly without understanding whether those cuts further compromise their survival." This statement should ring very true today for both the legal departments of the Global 5000 and certainly law firms as they have both dramatically cut costs across the board without understanding the effect it may have on their ability to effectively handle eDiscovery. She went on to state that, "For struggling companies, business process management is a lifeline that helps them survive by reducing and avoiding costs in this volatile and turbulent economy." I contend that the same holds true for law firms and legal departments as they struggle to compete and survive. However, I am also going to contend that due to the fact that very little is truly understood and very little has been documented about the processes involved in GRC and eDiscovery, even without the pressures of the current economic situation, BPM would be an excellent approach for law firms and legal departments to employ to ensure that they are carrying their duties in regards to the serious issues of governance, compliance, risk management and eDiscovery in a manner that will enable the best possible outcomes.

Whether its Sarbanes-Oxley compliance or ensuring that you are following the rules of handling Electronically Stored Information (ESI) as stated in the amended Federal Rules of Civil Procedure (FRCP), leaders from Global 5000 legal departments and partners at the major law firms need to seriously consider beginning to employ the Business Process Management (BPM) methodologies and technologies that have been successfully used throughout the rest of the Global 5000 enterprises for many years.

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Monday, February 8, 2010

Is the eDiscovery World Flat?

Over the years, various cultures have had conceptions of a flat Earth, including ancient Babylon, Ancient Egypt, pre-Classical Greece and pre-17th century China. This view contrasts with the realization first recorded around the 4th century BC by natural philosophers of Classical Greece that the Earth is spherical.

In February 2010 at the Legal Tech convention in New York City, I was dumbfounded at how many litigators believe, in essence, that the world is flat in regards to Software-as-as-Service (SaaS) in eDiscovery and that venturing into hosted technology solutions will end in disaster.

However, this current day belief cannot be reconciled with reality. According to Gartner, the market for Software-as-a-Service (SaaS) was forecast to reach $8 billion in 2009, a 21.9 percent increase from 2008 revenue of $6.6 billion, . Gartner further predicts that the market will show consistent growth through 2013 when worldwide SaaS revenue will total $16 billion for the enterprise application markets.

"The adoption of SaaS continues to grow and evolve within the enterprise application markets as tighter capital budgets in the current economic environment demand leaner alternatives, popularity increases, and interest for platform as a service and cloud computing grows,” said Sharon Mertz, research director at Gartner.

“Adoption of the on-demand deployment model has grown for nearly a decade, but its popularity has increased significantly within the last five years,” Ms. Mertz said. “Initial concerns about security response time and service availability have diminished for many organizations. As SaaS business and computing models have matured, adoption has become more widespread.”

Trying to deny the adoption of SaaS technology in the world and therefore in eDiscovery would be like taking the position that all of this Electronically Stored Information (ESI) is just a fad and will subside in time. SaaS is here, the use of SaaS is going to grow and denying it or ignoring it is not going to make a difference. To use another analogy, 'The train has already left the station" and it was odd to listen to some at Legal Tech in New York in 2010 standing "at the empty station" pontificating about the dangers of SaaS and whether or not it has a place in eDiscovery