eDiscovery Technology Adoption Lifecycle: Lawyers vs. Technologists

I have been in the business of introducing new technology into the Global 5000 for over twenty five (25) years. However, I can't remember having ever witnessed such an antagonistic atmosphere as the one that exists today in eDiscovery as technologists attempt to introduce new technology and lawyers desperately try to avoid the use of this new technology. I have been wrong a few times in the past about markets that are going through paradigm shifts and technology adoption lifecycles (e.g. voice recognition). However, I really don't believe that there is an invasion of eDiscovery technologists from "deep space" or that anyone is trying to "snatch anyone's body".

As a long time student and follower of the technology adoption lifecyle as described in "Crossing the Chasm" by Geoffrey A. Moore, I am very well aware of the concepts of "early adopters", "mainstream buyers" and "lagers". And, as indicated by Mr. Moore, buyers and/or adopters fit into one of the technology adoption lifecycle categories and then move, into the next based upon a normal progression of events such as maturation of the technology, solid references, overwhelming evidence and facts like literally everyone else in the industry has moved (i.e. the very late lagers). The process is not unlike watching the migration of the wildebeests. However, is some very rare instances, this natural progression is dramatically accelerated due to factors that are very much beyond the control of the adopters. And, when this happens, the adopters are forced way outside their comfort zones and therefore have a tendency to act irrationally. It is my opinion that we are witnessing this phenomenon in eDiscovery.

The accelerating increase in the volume of Electronically Stored Information (ESI) along with the subsequent and associated changes to the Federal Rules of Civil Procedure (FRCP) and many state and local rules of civil procedure have created a "text book" environment for "early adopters" to utilize new technology to propel their personal agenda's, careers and abilities to support their clients to extraordinary new levels of success. However, this same set of circumstances as "foreced" late lagers on the opposite end of the technology adoption lifecycle to at least consider becoming more mainstream adopers or even early adopters. Unfortunately, with yellow pads in hand, this is a very foriegn and uncomfortable situation for many in the legal community. Add to this the conunderum of a poor economey that has created an environment of fewer resouces (i.e. due to layoffs), lower revenues and lower margins and you have a situation which is almost the "perfect storm" for having to rely upon new technology to even survive.

On February 23, 2010, Donna Seyle, Esq. wrote an excellent article on the Law & Social Networking site, entitled, "Lawyers and Innovation: An Uneasy Alliance." Ms. Seyle writes, "Much has been written and discussed about the reticence with which lawyers approach the massive restructure of doing business as they knew it. Law school trains us to make legal arguments by following precedent, to rely on what has been decided before. Almost all lawyers have gone to work at law firms after passing the bar, and learn from an established institution how “things are done”. While this is true of other professions as well (i.e., the medical profession, and look at the mess they’re in), there is not one profession that is more risk-adverse than law. And since change involves risk, well. . .you get my point. And right now, lawyers have a lot of change on the table." And although this article does not specifically discuss the changes in eDiscovery technology, it does do an excellent job of pointing out that lawyers have an change and especially change the require new technology.

In another excellent article on this topic titled, "Innovate Now?", Michael J. Anderson states, "We all know that the only constant in the legal industry today is change. Firms that don't recognize that are doomed, firms that change with the times will survive and firms that innovate will prosper. What kind of firm do you want to be?"

Once again, the article by Mr. Anderson does not deal exclusively with the topic of eDiscovery technology. However, he lays out an excellent roadmap for internal self assessment for becomming more innovative. And, this roadmap could very easily be used in the context of adopting new technology.

I should be unbiased in this discussion and conclude that I am not sure where all of this is headed. However, I am not unbiased and I do know where all of this headed. Very much in line with Mr. Anderson, I believe that those indidivuals and their firms and legal departments that do not recognize the paradigm shift that has occured and therefore quickly embrase and adopt new eDiscovery technology, will find it very hard to compete and eventually almost impossible to continue to practice.

The full text of Ms. Seyle article is as follows:

Much has been written and discussed about the reticence with which lawyers approach the massive restructure of doing business as they knew it. Law school trains us to make legal arguments by following precedent, to rely on what has been decided before. Almost all lawyers have gone to work at law firms after passing the bar, and learn from an established institution how “things are done”. While this is true of other professions as well (i.e., the medical profession, and look at the mess they’re in), there is not one profession that is more risk-adverse than law. And since change involves risk, well. . .you get my point. And right now, lawyers have alot of change on the table.

In “Innovate Now?“, Michael J. Anderson writes: ”

"When law firms finally realize that they are falling behind (minimal or non-existent profit growth, lower margins and/or declining market share), the first knee jerk reaction is to reduce costs and start to restructure. In law firms that usually means laying off associates and staff. The sad thinking seems to be that since there is little chance that we can increase the total number of billable hours, we had better share those hours among fewer people and those people should be the owners. For some strange reason we choose to keep the people who cost us the most and let go those who cost less and who will provide a better long term and short term future for the firm.”

That kind of response to today’s economic tsunami is both shortsighted and ineffective. Clients are straight-up refusing to pay ludicrous hourly fees, so law firms are now faced with finding a different, or “alternative” billing model. This process involves a thorough review of the amount and nature of legal work necessary, the value this work will bring to the client, and complete accountability for and transparency of the work performed.

In order to implement this model, changes need to be made not in a knee-jerk reaction, but in a formalized review of the firm’s practice management that will reduce the risk economic loss in value-priced package. You must determine: 1) whether the work-flow methodology is the most cost-effective, and 2) whether the skills of each associate or staff member are compatible with the work assigned to produce the greatest efficiency. Is the firm just following the “way it was always done” map? Have you implemented practice management techniques to improve both the quality of work product and of work environment? Do you need to hire a Project Manager to oversee newly established procedures? Asking these questions is the only way lawyers can begin to meaningfully and profitably design billing models other than the billable hour and rest assured they will not go out of business.

Then there is the massively influential rise of social media marketing. Blogging. Networking. Social engagement. Publishing. Webinars. Monitoring the results. Marketing has firmly embedded itself into the strange new world of web 2.0, and most lawyers didn’t even like web 1.0. Let’s just say that if social media where a person, s/he would not be invited to the firm’s Christmas party.

But you cannot afford to allow this aversion to affect your business decisions. If you don’t have the time to do it, hire someone who can. If you say you can’t afford it, ask yourself: can you afford NOT to do it? Think about how much time and research was spent to determine where best to advertise to reach your target market. Well, guess where all those potential clients are now? Online. Go there.

All of this can be accomplished more easily by embracing technology. Technology is your friend. Research virtual law office platforms to find the one that fits best with your firm’s environment and transfer onto it. Check out as many legal tech tools as you can. Used correctly, these tools can streamline your communications, case/document/knowledge management systems, automate your ediscovery compliance efforts and keep you updated, informed and on time for meetings. The time management and cost effectiveness can handily reduce your overhead.

To research the tech tools available, search legal IT sites such as TechnoLawyer.com, LegalITprofessionals.com and Mylegal.com (among many others) to learn more about how you can leverage technology to keep the bottom line intact.

The full text of Mr. Anderson's article is as follows:

When law firms finally realize that they are falling behind (minimal or non-existent profit growth, lower margins and/or declining market share), the first knee jerk reaction is to reduce costs and start to restructure. In law firms that usually means laying off associates and staff.

It wasn't that long ago that solid, major companies like IBM could expect to grow and prosper by simply by maintaining a “steady as she goes” approach because they had proprietary software that kept their clients locked into their hardware. Change occurred very slowly back then in the dark ages. We all know that the last twenty years has seen that incredible change has overtaken every industry. For years change was slow with companies like IBM or TWA or Xerox. Now look at them. What happened was that they were sluggish in realizing that the terrain changed shape faster than they could change their basic concepts, technologies and marketing definitions.

When law firms finally realize that they are falling behind (minimal or non-existent profit growth, lower margins and/or declining market share), the first knee jerk reaction is to reduce costs and start to restructure. In law firms that usually means laying off associates and staff. The sad thinking seems to be that since there is little chance that we can increase the total number of billable hours, we had better share those hours among fewer people and those people should be the owners. For some strange reason we choose to keep the people who cost us the most and let go those who cost less and who will provide a better long term and short term future for the firm.

An inevitable result of this kind of downsizing is a huge loss of employee morale. We keep telling employees, especially new recruits, that they are most valuable asset of our firm but then we treat them as the most expendable instead. That reaction to a downturn makes recovery even harder.

At best, this type of restructuring just buys a little time. It will usually not have any lasting effect on profitability. A study of large US corporations documented in the Wall Street Journal show that restructuring caused share prices to rise at first but, within three years, those same share prices were even further behind their industry growth rates than before they restructured. Some people even believe that when a company announces a restructuring, they should sell the shares rather than the common belief that this is a good time to buy them.

Don't get me wrong. There is a constant need, in good times as well as challenging times, to fine tune the operations of any law firm and small continual restructurings are a way of doing that. It is when restructuring becomes the primary strategy of the firm's management that we have started down the slippery slope to ever worsening profitability. The next step is to start making up all of the excuses as to why your partners will be earning a lot less in the coming year. Of course, the step after that is when your partners change the management group.

The usual second knee jerk response to a downturn in profits is to re-engineer the firm. Cut less profitable work, streamline our systems, improve client satisfaction, deliver greater value and quality and do all of these things in a short time. With re-engineering there is more hope of improvement than with restructuring. In both cases the firm gets smaller but with re-engineering, there is hope that we will also get better.

Again, re-engineering should be part of a constant strategy in both good and tough times. It is necessary to catch up with the industry. However that still won't make you a leader. Reorganizing and restructuring are ultimately dead ends.

It is now time for re-invention, innovation and a revolution in your strategic thinking. It is not “What is everyone else doing?” but rather, “What can we do to set ourselves apart from the market? How will we become the leaders of our industry within our markets and consequently how will we improve our profitability?”

Painters like Picasso, Pollack, Renoir and Warhol used their imaginations to create distinctive and new styles in art. Each also generated a large number of copy cats who, while some of them may have been successful, the copyists never reached the pinnacles that these great artists achieved through their innovation and imagination. In the legal business, what sets leaders apart from laggards is the ability to be uniquely innovative. And the courage to be first.

The competition in the future will be won by those who create and those who dominate emerging opportunities -- stake out the new spaces.

We are at the beginning of a revolution that goes far beyond, but impacts, the legal industry. There will be an environmental revolution, a genetic revolution, a digital revolution, a communications revolution and an information revolution. Each of these areas will offer great opportunities for those firms who are the first movers, the leaders. The existing industries that we now serve like health care, telecommunications, banking and retailing will all be profoundly changed in the very near future. Are you ready?

In the future, most of the industries that we will be serving will be global in nature while many law firms are presently local, regional or national but very few are global. Again, are you ready?

To compete in the future Managing Partners and Executive Committees will have to understand how competition will be different from today's competition. Those who only think in terms of current clients, current practice areas, current manpower, current technology and current competition will be in for a rude awakening when their partner compensation drops dramatically because they didn't keep up, let alone lead.

Question: What do these entities have in common?

Southwest Airlines
Dell Computers
Baker & McKenzie
Charles Schwab
Wal-Mart

Answer: They are all firms that changed their entire industries by being innovators. They all came up with a new way of doing business in their particular sectors and I am sure that you can think of many other companies that could be included in this list.

Discount airlines took on a whole new meaning when Southwest Airlines developed their system for airline passenger travel with no advance seating, no meals, and adding some fun.

Dell was one of the first to develop customized personal computers that could be ordered over the telephone or through the Internet and delivered within days.

Baker & McKenzie was the first real world wide law firm with offices in almost every major country in the world.

Charles Schwab created the phenomenon of discount brokers by doing away with analysts and commissioned salespeople.

Wal-Mart developed discount department stores that were all located outside of major cities.

Because Edge International has dealt with almost 1,000 law firms all over the world, we are often asked, “Given that it is not our training or natural inclination to move very far from precedent and tradition and because we are much more comfortable being risk identifiers than being risk takers, how do we get our lawyers to start thinking in a more innovative way?”

Well, the question is not a simple one and the answer has many facets, but it is safe to say that for a firm to create an innovative atmosphere, the initiative must start at the top. Most long term thinking in law firms must be done by the Managing Partner and/or the Executive Committee because our partners are too busy dealing with the day to day struggles. To determine whether your firm is already innovative, you might start with a series of questions:

•Does the Executive Committee have a clear and broadly shared vision of where the legal industry will be in five or ten years time?

•In our markets, does our firm regularly define new ways of doing business, developing new capabilities, introducing new practice areas and setting new levels of client satisfaction?

•Is the Executive Committee aware of new and unconventional forms of competition on the horizon?


Are we driving change in our legal market or are we only reacting to our competition? Do we lead or do we follow?

After exploring the vision of the Executive Committee, you may well wish to take the pulse of the partners as to their perception of the firm as innovators. A survey would probably go a long way to telling you what your partners really think. And no, you really don't know what they are thinking, you just think that you do.

A survey might include questions like:

•How prominently should innovation rank in our mission statement?

•In our firm, is innovation widely regarded as a critical competitive advantage?

•What percentage of our partners have had any innovation or entrepreneurial training?

•Is innovation recognized and rewarded in our firm?

•How much of our practice group plans deal with innovation?

•Is it unusual for a particular partner to be significantly and financially rewarded for a particular instance of innovation?

•Does the firm have a formal innovation process? Is innovation encouraged? What does an individual do when they have an innovative idea and does the firm fund the experiment in any way?

If your firm is like most that we see, you will probably discover that everyone thinks that innovation is important, that there is very little of it being done and that there is no generally acknowledged process to follow when you have an innovative idea.

A second step would be to ask a series of questions of your partners that will give you a sense of what your capabilities are and which areas need to be addressed. This should probably be done in a retreat setting with generous amounts of time available for discussion. Some examples follow and each question should be answered in two ways, being a.) the relative importance (“needed to play”, “needed to compete” and “needed to win”) and b.) our current status (“worse than our competition”, “as good as our competition” and “better than our competition”)

•Do we really differentiate ourselves from our competition?

•Do we have strong name recognition?

•Are we good at identifying and establishing new areas of law?

•How good are we at identifying and abandoning marginal practice areas?

•Are we aware of trends in the industries that we serve?

•Are we perceived as providing real value to our clients above and beyond what they would have expected?

•Do we constantly ask clients about their future needs?

•Have we developed target lists of both clients and industries that we would like to serve?

•Are we maximizing technology to deliver our legal services?

•Do we have substantive knowledge that could be packaged for clients?

•Are there ancillary businesses that we could create?

•Do we know what our growth options are and are we aggressively pursuing them?

•Are we developing industry and client groups that cross all practice areas?

With the results of questions like those exampled above in hand, break out into small work groups that will then identify several things that we can do right now to improve and several things that should be longer term goals.

Another workshop concept would be to assign industries to each break out group and ask them to report back to the combined group what they would do to be innovators in that industry. An example might be the hotel industry and an innovation might be to rent rooms on a 24 hour basis (i.e. check out time is 24 hours after check in, not arbitrarily noon of the following day - much like the car rental industry).

The second break out session would be to have the same groups then identify actions they can take to get to know these industries better, discuss how to communicate their willingness to be innovators to that industry and to create a target list of potential clients and assign marketing to those clients to individual partners.

In both of these cases, the results should be goals that require the individuals, the group and the firm to “stretch”. A firm's innovation strategy should be an ambition that stretches far beyond the normal or past capabilities of the firm.

A goal for firms that choose to become innovators should be the creation of research and development as a part of the firm culture which identifies who will do what research and how the firm will support them. Some firms have created an “innovation fund” that sets aside a portion of profits to be used solely for continued innovation research and trials. Most industries spend 5 to 10 percent of their gross revenues on research and development and most law firms spend nothing.

Becoming an innovation firm is not easy. It must be done in a step by step basis and the key to moving ahead is to just get started. As our friend David Maister is fond of saying, “Don't look at the entire diet process because it is too daunting. Pick a small first step, complete that and then pick a second step and so on.”

And yes, you will have partners who will be enemies of innovation for many diverse reasons. Some of them are empire builders and see this as a threat to their control, others have narrow minds and a real fear of change and still others will want to concentrate on income before investment (let's just make as much money now with what we know rather than invest in creating an even more profitable firm in the future).

We all know that the only constant in the legal industry today is change. Firms that don't recognize that are doomed, firms that change with the times will survive and firms that innovate will prosper. What kind of firm do you want to be?

Labels: 2009 eDiscovery Predictions and Trends, Crossing the Chasm, Early Aopters, eDiscovery, Inovation, Late Lagers

posted by Charles Skamser @ 10:58 AM 0 Comments

eDiscovery Tricks and Treats for 2009

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?

Labels: 2009 eDiscovery Predictions and Trends, Twitter

posted by Charles Skamser @ 8:14 AM 0 Comments

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

Labels: 2009 eDiscovery Predictions and Trends, eDiscovery, Fulbright

posted by Charles Skamser @ 3:29 PM 0 Comments

VC Funding for SaaS Solutions on the Rise

I just got an email with a link to an article on the Information Week Cloud Computing page indicating that venture capital investment in Software-as-a-Service (SaaS) based solutions is on the rise. The article Posted by Mary Hayes Weier @ 10:49:AM on Sep,18, 2009, titled, "VC Funding Is Dead? Tell That To Eight Newly Wealthy SaaS Startups," states that more than $60 million has been pumped into SaaS startups in the past couple of week.

For anyone that reads my Blog on a regular basis knows that I am a SaaS bigot of sorts (http://ediscoveryconsulting.blogspot.com/2009/09/ediscovery-saas-continues-to-gain.html) and therefore beleive that most investments in solid SaaS based technology are going to provide above market returns in the coming years. And, with the accellerating increase in the volume of ESI and the subsequent emergance of the eDiscovery market, I beleive that the investment with the highest returns are going to be SaaS based solutions in the eDiscovery and/or GRC (Goverance. Risk and Compliance) space.

Having spent that last year examining all of the SaaS based solution startups or restarts in the eDiscovery market in detail, I can tell you that there are some very exciting SaaS based eDiscovery solutions that are going to turn this industry upside down, give the legacy vendors a run for their money (literally) and provide some tremendous opportunities for investors.

I have already begun to work with several SaaS based vendors with new technologies in legal hold, chain of custody mangement, next generation file transfer security, project/case/matter management and workflow, Early Case Assessment (ECA), EDD processing and of course online review tools. Over the next twelve months, I am planning to either find or develope a SaaS based solution that seamlessly covers the entire EDRM model and maybe even pushes left into document retention and archiving. Further, as you have also heard me contend on this Blog, I beleive that the ultimate SaaS based solution for ESI management will actually be within the GRC space with eDiscovery as a subset of the requirement (http://ediscoveryconsulting.blogspot.com/2009/08/about-month-ago-i-had-opportunity-to-be.html.)

The full text of the post by Ms. Weier is as follows:

Venture capital funding is at a historic low, yet at least eight software startups announced VC funding in the past two weeks for a total of more than $60 million. Their products are all very different, but they have one thing in common: they're delivered in a software-as-a-service model.

This is significant, because it shows that when VCs are thinking about what software companies to fund, they recognize value in the SaaS model. Some apps are just easier to sell and deploy as a SaaS, and are likely to gain better traction in a tough economy.

And $60+ million in two weeks is impressive, considering the National Venture Capital Association reports that VC investments in the second quarter of this year dropped to levels not seen since 1996.

Here are eight SaaS companies that have publicly announced VC funding so far this month; certainly there are others:

1) Accept, a SaaS for idea and portfolio management, designed to help businesses quickly bring their best product ideas to market, raised $17 million in Series B financing from StarVest Partners, Jefferson Partners and the Entrepreneurs Fund.

2) Apptio, a SaaS for IT financial management, raised $14 million in Series B financing from Andreessen Horowitz Fund, Shasta Ventures, Greylock Partners and Madrona Venture Group.

3) Jobvite, a SaaS for job recruitment, raised $8.25 million in Series B financing from ATA Ventures and CMEA Capital.

4) NextBio, a SaaS used by life science researchers at universities, and businesses such as Eli Lilly, Merck, and Johnson & Johnson, to find and share information, raised $8 million in Series C financing in a round led by Newbury Ventures.

5) Sonian, a SaaS for data management, raised $5.6 million in Series A funding from Prism VentureWorks and Summerhill Venture Partners.

6) HealthHiway, a Bangalore, India-based SaaS for hospital patient data and billing, raised $4 million from Greylock Partners.

7) OptionEase, a SaaS for fair market value accounting and compliance, raised $3.5 million in Series A financing from Miramar Venture Partners and others.

8.) A marketing-related SaaS provider has completed a round of Series C financing. The company and its VC will announce details on Sept. 22.

Labels: 2009 eDiscovery Predictions and Trends, Cloud Computing, eDiscovery, Venture Capital

posted by Charles Skamser @ 9:45 AM 0 Comments

Gartner Humming the Proactive eDiscovery Tune with Five Step Process for Better Use of Enterprise Search in eDiscovery

Having spent most of my career assisting IT departments worldwide provide more business relevant support to their business units, I have been very interested in following the paradigm shift that is going on within the IT deparments and their bretheran in the legal departments as they collectively deal with eDsicovery.

If you read my Blog with any consistency, you know that I believe that eDiscovery is part of a bigger issue called Goverance, Risk and Compliance (GRC). And, if addressed from a proactive standpoint with ESI archiving and leading edge enterprise search and analysis from forward thinking technology organizations such as Orcatec and ContentAnalyst, eDiscovery will eventually become a commodity process.

And, although Gartner has not exactly said this same thing, it is nice to know that they are at least begining to hum this same basic tune.

The full text of the Gartner press release is as follows:

By the end of 2012, enterprises that fully document their search processes in e-discovery will save 25 percent on their collection processes, according to Gartner, Inc. Enterprises of all sizes, and those facing any number of legal actions annually, should have a simple set of practices to follow anytime they need to embark on an e-discovery process in the near future.

Although no single relevance model or cocktail of relevance models will be effective in the next five years, Gartner predicts that by 2014, lawyers and technologists will use a customary means of recording search processes in e-discovery.

"Addressing the ongoing challenge of the IT perspective of litigation management demands both that the technologies be acquired and that procedures for using them be established," said Whit Andrews, vice president and distinguished analyst at Gartner. "Companies need to own the products that will be necessary for them to address litigation and understand that those products will not have the same positive impact unless they are supported by repeatable, effective, systemic processes for lawyers and IT to follow."

Gartner identified five guidelines to ease the first steps of addressing e-discovery for litigation:

Open communication wide, and include potential custodians. The legal team, or teams, and IT must be able to communicate throughout the process. At the first threat of litigation, IT and the lawyers representing any company or government enterprise should initiate a planned round of meetings as though the e-discovery phase of litigation were a project with phased deliverables and expectations.

Get a senior litigator involved immediately. High hourly rates are compensated for through effective decision making.Waiting for the final product to be ready for delivery to opposing counsel is a mistake. A senior litigator, engaged at an early stage, will be able to advise on what document and data sources should be searched and examined, how to structure initial queries and what information should be searched, and how to record processes so that they are more defensible in the case of an inquisitive judge.

Analyze the corpus of documents and data early.Understanding the underlying content of the case holistically will allow IT workers and lawyers to discuss meaningfully what the impact will be of any collection strategy. It will also give the senior litigator the ability to call whether the case should proceed or be settled.

Estimate the price scale for collection based on what it will cost to pursue strategies of different degrees of intensity. Budgeting the cost of collection will allow IT workers and lawyers to work together to determine a proportional expenditure on e-discovery that is proper for a case, given its significance and the financial exposure it represents.

Document your decisions. Terms and methods of querying them should be saved in a grid such as a spreadsheet file for simplicity. Lawyers, in particular, continue to hope for a specific means of conducting searches that would allow them not to examine search processes as granularly as they must now. However, for the immediate future, lawyers' involvement will be critical to achieve recall that will be acceptable to the bench and opposing counsel.

"Codifying these guidelines in order will further enhance efficient proceedings and improve the successful resolution of litigation," Mr. Andrews said.

Additional information is available in the Gartner report "Five Steps for E-discovery to Improve Search and other processes." The report was generated as part of the e-discovery workshop that Gartner conducted with leaders in e-discovery, such as Robert Brownstone, law and technology director at Fenwick & West LLP, at the Gartner Risk Management and Compliance Summit, April 29-May 1 of this year. The report is available on Gartner's Web site at http://www.gartner.com/DisplayDocument?ref=g_search&id=1060612&subref=simplesearch.

Mr. Andrews will provide additional analysis at the Gartner Symposium/ITxpo, October 18-22, in Orlando, Florida. In the session "Gartner Magic Quadrant and MarketScope: Information Access Technology and E-Discovery," Mr. Andrews will offer a visual snapshot of e-discovery's direction and maturity, as well as the leading participants.

Gartner Symposium/ITxpo is the world's most important gathering of CIOs and senior IT executives. It is the industry's largest and most important annual gathering of CIOs and their senior IT leaders. This event delivers independent and objective content with the authority and weight of the world's leading IT research and advisory organization, and provides access to the latest solutions from key technology providers. Gartner's annual Symposium/ITxpo events are key components of attendees' annual planning efforts. They rely on Gartner Symposium/ITxpo to gain insight into how their organizations can use IT to address business challenges and improve operational efficiency. Additional information is available at www.gartner.com/symposium/us.

Members of the media can register for the event by contacting Christy Pettey at christy.pettey@gartner.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 www.gartner.com.

Labels: 2009 eDiscovery Predictions and Trends, eDiscovery, eDiscovery Best Practices, Enterprise Search, Gartner, GRC

posted by Charles Skamser @ 12:10 PM 1 Comments

eDiscovery SaaS Continues to Gain Marketshare

As the eDiscovery SaaS evangilist, I thought that it was time for another quick update on the current status of the proliferation of SaaS based applications in the eDiscovery market. 6-12 months ago, most players in the eDiscovery market didn't even now what SaaS (Softtware-as-a-Service) was or how it would benefit their organizations. And when you tried to explain that it was the next generation of onDemand software applications or the practical application of "cloud computing", many shouted that, "the legal market will never let such sensative data outside the firewall." And therefore the benefits such as; no software license fees, no annual software maintenanc fees, no hardwar to purchase, consumption based pricing, etc. never really got heard. At this point I in the debate I always like to point out that at a very embarrassing time in human history, many though that the world was flat. However, back to my post.

Regardless of whether the "world is flat" or not and whether it is a symptom of the world economic crisis or just the natural progression of a true paradigm shift, the eDiscovery SaaS market is growing.

Some Proof that the World Isn't Flat
Doing a scientifically calibrated quick Google search on "eDiscovery SaaS", I found that in late August 2009, Orange Legal Technologies, a leading provider of one source litigation, audit, and investigation support services for law firms and corporations seeking insight on electronically stored information, announced a technology partnership allowing BlackStone Discovery to integrate the OneO® Discovery Platform into its existing electronic discovery service portfolio. The strategic partnership with Orange Legal Technologies enables BlackStone Discovery clients to reduce electronic discovery times, and costs, by 50% while also reducing risk when compared to non Software-as-a-Service (SaaS) based electronic discovery offerings.

I know the executives at both Orange Legal Technologies and Blacktone Discovery and they are all very experienced and successful eDiscovery professionals. As such, I would consider them to be somewhat of a bellwether for where eDiscovery SaaS is going.

The full text of the press release is as follows:

(Salt Lake City, UT and Palo Alto, CA) Orange Legal Technologies, a leading provider of one source litigation, audit, and investigation support services for law firms and corporations seeking insight on electronically stored information, today announced a technology partnership allowing BlackStone Discovery to integrate the OneO® Discovery Platform into its existing electronic discovery service portfolio. The strategic partnership with Orange Legal Technologies enables BlackStone Discovery clients to reduce electronic discovery times, and costs, by 50% while also reducing risk when compared to non Software-as-a-Service (SaaS) based electronic discovery offerings.

“This new partnership between BlackStone Discovery and Orange Legal Technologies solidifies the OneO® platforms’ footprint in Silicon Valley,” stated Bret Laughlin, President and CEO of Orange Legal Technologies. “Based on the fact that BlackStone Discovery serves as the preferred electronic discovery consultant for many of the leading international law firms and corporations with a presence in San Francisco, Palo Alto, and San Jose, our new partnership is already off to a successful start as a large government organization in the Silicon Valley has chosen to work with BlackStone Discovery powered by OneO®.”

“There are many software applications available for early case assessment, processing and hosting.” shared John Kelly, President and CEO of BlackStone Discovery. “After extensive analysis and evaluations of available technologies, it became clear that OneO®’s integrated suite of technology was the right fit for our law firm & corporate clientele. We are committed to partnering with best in class companies, and this alliance combines the strength and efficiency of BlackStone Discovery’s own Rapid Response Methodology with OneO®’s superior cost-savings and speed.”

To Learn More

The OneO® Discovery Platform provides law firm and corporate legal professionals with an integrated, web-accessible, forensically sound electronic discovery platform that enables online analytics, processing, and review of data from the security of a hosted centralized repository. To learn more about how the OneO® Discovery Platform can quantifiably save users 1/2 the time, 1/2 the cost, while lowering the risks associated with traditional electronic discovery approaches, contact Orange Legal Technologies today via website (http://www.orangelt.com/technology), email (info@orangelt.com), or phone (1.415.989.7922) .

About Orange Legal Technologies

Orange Legal Technologies is a leading electronic discovery provider of one source litigation, audit, and investigation support services for law firms and corporations seeking insight on electronically stored information. Headquartered in Salt Lake City, Utah, and with four locations nationwide, OrangeLT™ offers a complete suite of electronic discovery services to include collection, analysis, processing, review and production of both digital and paper-based information. Enabled by the OneO® Discovery Platform—an integrated, web-accessible electronic discovery platform that provides online analysis, processing, and review of unstructured data from the security of a hosted centralized repository—and augmented by best of breed electronic discovery partners, Orange Legal Technologies has participated as a member of the Electronic Discovery Reference Model (EDRM) and the International Legal Technology Association (ILTA). For more information on Orange Legal Technologies, visit http://www.orangelt.com/.

About BlackStone Discovery

BlackStone Discovery is Silicon Valley’s preferred electronic discovery and document management company with a wide range of data-centric services delivered under the Rapid Response Methodology™. Based in Palo Alto, California, BlackStone Discovery’s portfolio of litigation support services includes collection, native analysis, processing, review, and production services supported by a dedicated team of litigation technology consultants and project managers. For more information on BlackStone Discovery, visit: http://www.blackstonediscovery.com/.

Next week I will be posting an update on all of the eDiscovery SaaS Vendors so let me know if you have something that you would like to contribute.

Labels: 2009 eDiscovery Predictions and Trends, Saas, Software-as-a-Service

posted by Charles Skamser @ 8:59 AM 0 Comments

Current Status of eDiscovery and Governance, Risk and Compliance (GRC) Markets

About a month ago, I had the opportunity to be the keynote at a small luncheon of legal and Information Technology Professionals in Chicago, Illinois and discuss my thoughs about the current status of the eDiscovery and Governance, Risk and Compliance (GRC) markets. Following is the press release that provides a summary of the highlights of that speech:

Chicago, Illinois - August 31, 2009 (PRWeb) - eDiscovery Solutions Group announced today that Charles Skamser, the company’s Founder and CEO, spoke on the current status of the eDiscovery and Governance, Risk and Compliance (GRC) markets at a Chicago area luncheon for litigators and global information management professionals on July 31, 2009.

Mr. Skamser, Founder and CEO of eDiscovery Solutions Group, started out his speech by listing what he called, “the known truths about Governance, Risk, Compliance (GRC) and eDiscovery.”

- eDiscovery is not that complicated
- eDiscovery is too expensive
- eDiscovery will be brought back into the IT departments of the Global 2000
- There will be a convergence of eDiscovery and GRC technology and management
- Most eDiscovery and GRC solutions will be cloud based in 10 years

Mr. Skamser went on to talk about how the increase in the volume of Electronically Stored Information (ESI) has perpetuated the dawn of a new technology era in litigation.

“Even though most lawyers ignored the advent of the integrated circuit and the subsequent introduction of the personal computer in the 1980s, evidence collection and processing has been slowly going through a paradigm shift from paper based evidence to electronic evidence,” stated Charles Skamser, Founder and CEO of eDiscovery Solutions Group. “However, with the accelerating volume of Electronically Stored Information (ESI) surpassing anyone’s expectations, it is now fool hardy for even the most stayed and cautious litigator to not realize that the game, and more importantly the technology of litigation, has changed,” continued Mr. Skamser. “As a result of this eDiscovery paradigm shift, it is time for the Global 2000 to get serious about managing ESI for eDiscovery and GRC,” stated Mr. Skamser.

Mr. Skamser went on to claim that the attempt by law firms and many litigation service providers to utilize eDiscovery technology has failed and as a result corporations worldwide are bringing eDiscovery processing in house.

"Over the past three years, I have heard a common message of dismay from many of the partners from the top litigation law firms in the country,” stated Mr. Skamser. “This common message of dismay is that they went to law school and either started a firm or joined a firm to practice law. And, one morning, several years ago, they all woke up and found themselves managing a technology company. It is my opinion that we would all be better off if lawyers and law firms went back to being lawyers and let the technology experts handle the technology,” added Mr. Skamser. “The lawyers would be happier; the technologist would be happier; and, most importantly, the clients would be happier,” stated Mr. Skamser

Mr. Skamser next contended that eDiscovery is too expensive.

“A really good litigator is probably worth $400 or more per hour when engaged in defending your company in a multi-million dollar matter.” stated Mr. Skamser. “However, beyond the dynamics of the free market economy, I have never been able to justify spending $2,000 per gigabyte to find the ESI that is required to respond to a request. Further, I have found very few litigators and corporate counsel that could even explain what exactly it was that they were getting for their $2,000.”, continued Mr. Skamser. “The overall cost of identifying, collecting, processing, reviewing and producing ESI has come down in the past 12 months. However, it is still way too high and still excludes many if not most from the legal system,” contends Mr. Skamser. “Armed with a better understanding of what eDiscovery technology does and what it should cost along with a new crop of cloud based vendors with a much lower cost of production that are willing to challenge the current cost structures, I predict that the cost per gigabyte to process ESI will fall below $100 in the coming years,” predicts Mr. Skamser. “At some point, you should be able to push a couple of buttons and get a report on the electronic evidence that you need to better understand and, if required, support your matter,” added Mr. Skamser.

Mr. Skamser next spoke about the technologies that he believes will survive and thrive in the new eDiscovery and GRC marketplace.

"In general, when an industry goes into a paradigm shift, chaos irrupts and creates opportunities for new technology and new players to emerge. And, this is exactly what we have been seeing in the litigation services, eDiscovery and GRC market,” stated Mr. Skamser. “Up until 2007, there were only few major technology players in the litigation services space and because there wasn’t much competition, the market pretty much gave them a pass and allowed them to get by with peddling out of date and inferior technology at very high prices. Further, there was very little integration between the various core component technologies required to process data,” added Mr. Skamser. “This was great for the vendors that had a strangle hold on the market. But, not so good for clients and not so good for the industry as a whole.” “This all began to change in late 2007 about the same time that the changes to the Federal Rules of Civil Procedure went in to effect. I believe that it was a coincidence that this all happened at about the same time. However, the changes to the rules may have at least added some creditability to the notion that dealing with ESI was going to be much different than dealing with paper.”

Mr. Skamser went on to predict that there would be a convergence of eDiscovery and GRC technology.

“Given the requirement that both eDiscovery and Governance, Risk and Compliance (GRC) need to have access to all of the ESI that an organization creates; and, given the fact that both eDiscovery and GRC need to be able to examine and act on the most granular ESI available; and, given the fact that it is much more efficient in both eDiscovery and GRC to be proactive instead of reactive, I predict that eDiscovery and GRC technology will converge into a single integrated solution,” predicts Mr. Skamser.

Mr. Skamser went on to predict that Software-as-a-Service (SaaS) and cloud based computing will become the technology of choice for both eDiscovery and GRC.

“Regardless of what many of the so called industry experts are saying about the dangers of cloud computing and SaaS based solutions, the security sky isn’t falling. And, I predict that within 5 years most, if not all eDiscovery and GRC solutions will rely on SaaS and cloud based computing infrastructure,” stated Mr. Skamser. “There is just too much technical and investment momentum for it to go any other direction. So, although I am not a investment guru, I would suspect that an investment in anything SaaS and/or cloud based for eDiscovery and/or GRC will end up paying big dividends,” added Mr. Skamser.

Mr. Skamser next commented that he believes that the technical support of eDiscovery and GRC will become the responsibility of the information technology groups within the enterprise.

“Litigation services and now eDiscovery have created a financial boondoggle for law firms and litigation and eDiscovery service providers throughout the world over the past five years,” contends Mr. Skamser. “As a result, the cost of eDiscovery has remained high and there has been a real disconnect in expectations between clients, outside counsel, general counsel, internal IT departments and the service providers,” added Mr. Skamser. “Further, when you put into perspective the fact that the average multinational corporation faces more than 150 lawsuits per year, eDiscovery. Add to that the fact that corporations collectively spent several billions of dollars on electronic review and you have an issue that requires watching. It becomes crucial to better understand these processes and to learn where you can cut costs effectively. As a result, I predict that that technical support and management of eDiscovery and GRC will become the responsibility of the information technology groups within the enterprise with General Counsel having more direct responsibility and outside counsel taking on more of a consulting role,” continued Mr. Skamser. “This doesn’t mean that the litigation services, eDiscovery technology vendor and eDiscovery consulting market is going to go away. It just means that they are going to take on more of a consultative role supporting the internal operations of the enterprise,” added Mr. Skamser.

Mr. Skamser next spoke about his views of the current contraction in the number of players in the eDiscovery technology vendor community.

“Although I didn’t have any more than experience from other technology industries, personal observation of the litigation services industry and anecdotal evidence to back up my claim, I predicted early last year that as with any other technology industry that is in a throws of a paradigm shift, the eDiscovery technology and services market would suffer aggressive contractions with mergers, acquisitions and a large number of vendors going out of business,” stated Mr. Skamser. “Late 2008 and 2009 have proven my prediction correct as litigation services and the eDiscovery technology industry have both been hit hard by natural contraction and the downturn in the economy. And, even though most of the companies that took hits during this contraction would contend that it was due to the downturn in the economy, I contend that the eDiscovery market as a whole is actually still expanding and therefore any casualties had old technology, lack of industry understanding, poor customer service or all of the above to blame for their demise,” added Mr. Skamser. “And, even though I have my doubts about the theories of evolution in general, the current state of the eDiscovery market is s perfect example of survival of the fittest. As a result, we are now entering a time when the options will be the best of what’s left,” continued Mr. Skamser.

Mr. Skamser next indicated that industry wide standards and professional certifications would be the key to the long term stability and success of the eDiscovery and GRC markets.

"Having spent most of my career helping IT professionals from the Global 2000 utilize leading edge and disruptive software technology to attain business objectives, I am very familiar with the power of industry standards and professional certifications,” stated Mr. Skamser. “The quicker the leaders from within the eDiscovery and GRC markets establish and enforce both standards and certifications, the quicker we will begin to see a normalization effect that will enable the entire industry to move forward in a more coherent way,” he continued.

Mr. Skamser finished his speech by indicating that, although there is lots of chaos and a shortage of answers, it is a very exciting time to be involved in the eDiscovery and GRC markets.

“I hope that my speech today didn’t paint a negative picture of eDiscovery and GRC or leave you confused in regards to how to successfully navigate the rough waters of eDiscovery and GRC,” stated Mr. Skamser. “On the contrary, I hope that you are encouraged by the prospects of what lies before us and can see the light of success at the end of this tunnel,” added Mr. Skamser.

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: http://www.ediscoverysolutionsgroup.com/.

Labels: 2009 eDiscovery Predictions and Trends

posted by Charles Skamser @ 4:01 PM 1 Comments

The Critical Need for eDiscovery Certification

Having spent most of career assisting the Global 2000 to utilize leading edge information technology, I am a big proponent of industry certifications.  Therefore, I wanted to post an article titled "The Critical Need for eDiscovery Certification" by Chere Estrin that appears in the August 30th  LA Legal Careers Examiner.  Chere is leading a very important effort to define and expand certifications in the eDiscovery market.

The full text of the article is as follows:

Today's screaming for qualified e-discovery professionals has reached an unprecedented volume. Recently, Socha-Gelbman published an overview of the results of their annual survey on the Legal Technology News site.

One of the most important single observations from it is the shortage of expertise in the market-place with providers, law firms and corporations reported as "fighting each other for the few people who actually understand what is involved in handling electronic documents". That is significant because the lack of qualified professionals can only grow. Predictions of 20%- 25% growth in the field does not guarantee that a generation of skilled and knowledgable people are simply going to pop up.

Most litigation support staff learn on the job. Many are victims of degenerative on-the-job training. That is to say, the trainer received inadequate training; he/she trains another individual who receives even more inadequate training; that person trains another who now receives twice as much inadequate training as the previous inadequately trained individual and so on and so on and so on.

Most law firms and vendors do not have substantive ediscovery training programs. There's plenty of continuing ed and in-house seminars but no real comprehensive long-term courses nor exams to certify core competencies. Reputations and careers are at risk.

Further, law firms hesitate to spend money on any employee who is not slated for partnership. Firms and vendors alike may hire a person from another position i.e., litigation paralegal; computer technician or someone from outside the field, to transition into the lit. support field. Only after plenty of trial and error (possibly on your case), are they called an "expert". There is no test, certification nor standards to enter or stay in this relatively new profession.

As a result of this crying need from judges, law firms and vendors alike, a new non-profit organization, The Organization of Legal Professionals (www.theolp.org) has been formed for the purpose of providing an exacting and tough certification exam to establish core compentencies. This organization has assembled a blue ribbon Board of Governors and Advisory Council. The names of these legal icons are the best in the nation and beyond.

The benefits to law firms, legal departments and vendors alike are tremendous. Just a few include the delivery of higher level quality services; better adherence to risk management; lower malpractice rates; and assured skills and competencies in a new profession that at present, has no barriers to entry.

We need your help. We need you to join and support us. We need you to help spread the word. The lack of qualified people in the fastest growing arena of litigation is unprecedented. And now, there is a way to help manage and control the problem.

Please go to www.theolp.org and join as a member, sponsor, student member or affiliate partner. If you cannot join at this time, feel free to get on the mailing list. Or, join us on the Advisory Council for 1-2 hours per month. Become a Subject Matter Expert and be in on the ground floor of this exciting adventure in solving a major problem in the legal field today.

The enormous challenges that have already been met by lit. support stars and hard-working, dedicated and persistent individuals in this field today should not be underestimated nor dismissed. It's simply time to take a look at the future and who will be entitled to call themselves an e-discovery expert and why.

I look forward to your thoughts. Please feel free to contact me or anyone on the Board of Governors or Advisory Council directly.

Labels: 2009 eDiscovery Predictions and Trends, Cerifications, The Organization of Legal Professionals, Training

posted by Charles Skamser @ 1:24 AM 0 Comments

Watering Down the Definition of eDiscovery

Based upon a posting on one of the Cloud Computing Blogs that I follow, it appears that Google is tauting some of its new cloud storage and archiving solutions as eDiscovery technology. According a Blog posting by Mike on the On Cloud Computing Blog on July 22, 2009, titled, "Google Docs Get eDiscovery," "Google Apps customers can now employ a sort of safety net to protect corporate documents and files in Google Docs. Called CloudSave, users are able to conduct legal discovery and “un-delete” previously deleted documents as needed."

I am a very big advocate of cloud computing and I have not doubt that this technology has a place in someone's bag of inexpensive archiving tricks.  However, I am leary of defining it as an eDiscovery tool.  But, I wouldn't underestimate Goolge on anything.  And, this solution is not cheap. You can make your own decision.  The full text of Mike's post is as follows:

CloudSave comes courtesy of Salvair, a company that works to increase organizational efficiency through cloud computing solutions. They recently announced the release of version 2 software for Google Docs Archival and eDiscovery. Traditionally, Salvair offers software, services and training for companies evaluating and subsequently implementing Google Apps. Encompassing migration, integration and usability for the enhancement of the Google Apps experience, Salvair focuses on software that supplements Google Apps within the enterprise. By employing CloudSave, documents, spreadsheets, presentations and PDFS can be readily backed up, making it a useful eDiscovery tool. Companies can benefit from the flexibility of archiving documents for an entire domain or for specific users, while enjoying the access and ease of Google Docs.

Because eDiscovery isn’t just for companies, Salvair offers discounted pricing for educational and non-profit organizations. Considering that use of Google Docs is an affordable option for business document suites, not to mention collaboration and messaging, why not use the money you’re saving to ensure security and protection of your files?

Price varies by options but starts at US$ 25 per user, or a minimum of US$ 15,000. By making eDiscovery tools more accessible and easy to implement, Salvair is doing more than helping companies become more organized, they are making them more secure.

Labels: 2009 eDiscovery Predictions and Trends, email archieving, Google, Salvair

posted by Charles Skamser @ 1:24 PM 0 Comments

Ease The Pain Of eDiscovery

Even though it seems like there have been more “horror” stories than success stories in eDiscovery, it is my opinion that the successes are beginning to outpace the failures. A good example of how three companies have pulled together IT, legal, and other stakeholders to reduce the complexity and cost of finding information when the lawyers come calling by recently posted by Andew-Conry-Murray in InformationWeek on May 30, 2009 12:02 AM (From the June 1, 2009 issue) in an article titled “Ease the Pain of eDiscovery”.

The article starts out with the famous horror story of the $6 million ediscovery costs associated with the Federal Housing Enterprise Oversight Office of as they attempted to respond to subpoenas for documents in litigation involving Fannie Mae and Freddie Mac.

After making his point about the “horrors” of eDiscovery, Andew-Conry-Murray goes on to provide a great overview how eDiscovery teams from Blue Cross, Webcor and Verizon eased the pain of eDiscovery by following some simple rules during each of the phases of eDiscovery.

As the article proves, eDiscovery isn’t a black art that requires a high paid Merlin type to pull off. There are plenty of very good guides and best practice models publically available that will enable even the most eDiscovery challenged among us to have a pretty good chance at success.

The full text of the article is as follows:

When the Office of Federal Housing Enterprise Oversight was subpoenaed for documents in litigation involving Fannie Mae and Freddie Mac, its IT department thought it had searched every cranny to find relevant e-mails. It turned out the agency overlooked disaster-recovery backups that were stored off-site.

That oversight triggered a legal fight and then a protracted search that resulted in a $6 million discovery bill--a whopping 9% of the office's annual budget.

When it comes to e-discovery costs, $6 million isn't an outlier, which points to the urgency of IT and legal departments working hand in hand to build policies and execute on them when litigation hits. At times, however, IT and legal work at cross-purposes--they don't communicate or, worse, argue over the best approach to collecting electronically stored information that's being called for, often on short notice.

To avoid these squabbles and the mistakes that come out of them, smart companies are creating e-discovery teams led by legal and IT principals, with other stakeholders in the organization brought in as needed. These teams set policies for data retention and preservation, oversee implementation of these policies, and handle e-discovery work related to specific legal cases. We'll look at what three companies--in insurance, telecom, and construction--are doing to make e-discovery the team sport it must be.

Team Leaders
One key component to the smooth operation of these teams is a liaison who coordinates the technical and legal requirements of discovery efforts. In some cases, this liaison may be a tech-savvy paralegal or attorney, but often it's an IT pro.
Brandon D'Agostino, of health insurer Blue Cross Blue Shield of South Carolina, had 10 years of IT experience, including four at BCBS working with application and database servers, when he left to get a law degree. He planned to become a litigator, but before taking the bar heard that Blue Cross was creating a new position--ESI counselor, charged with creating policies for the company's electronically stored information.

"We joke that I have street credibility from the IT department, because I was the guy getting called in at 2 a.m., so I understand what they're going through," D'Agostino says. They may joke, but street cred goes a long way toward smoothing over and anticipating conflicts between IT and the legal counsel's office. That's because a critical part of the liaison's role is to build relationships between the two groups.

You have to have buy-in from key people before a crisis erupts, D'Agostino says. He cultivated relationships with systems experts who work with Tier 1 repositories of information, such as e-mail and file servers, so that when an investigation hits his desk he doesn't have to spend precious time explaining to IT people what the legal department is trying to do.
Another lesson these liaisons have learned is that they need to convince IT that discovery efforts aren't a one-time exercise, and that the scope of any one investigation could easily expand. If legal needs e-mail from 10 people today, D'Agostino makes sure to ask IT what would happen if they end up needing it from 200 instead.

"If you give an IT person a horrible task to do one time, he'll complain," D'Agostino says. "Give it to him 10 times, and he'll find a way to automate it." E-discovery needs can't be attacked with "manual, fly-by-the-seat-of-your-pants processes," he says.

Verizon's director of legal discovery technology, Jaideep Singh, puts it another way: IT must understand that you'll be coming back. Singh, too, has an IT background, having initially worked in IT running billing and order fulfillment systems before moving to the legal department five years ago, where he quickly was pulled into discovery work because of his IT chops. Now he coordinates with the IT groups in charge of key sources of stored data, including e-mail, billing, and human resources systems.

Common Ground
Legal-IT liaisons like D'Agostino and Singh generally work with IT on specific phases of the discovery process, like those outlined in the Electronic Discovery Reference Model. Created by George Socha and Tom Gelbman, EDRM lays out the steps required for a discovery process, creating a map for e-discovery that both IT and legal groups have adopted (see chart, "Steps To Discovery", below).

IT's main work in this model comes in the first four steps: information management, identification, preservation, and collection.

The information management phase encourages companies to institute data management policies and technologies that address the creation, retention, and disposition of information, including unstructured content. It's a critical stage for IT and legal teams to work together to make for a smoother and less expensive discovery process.
The relationship between IT and legal faces its real test, however, in the next three phases, when a discovery effort is under way.

The Identification Phase
This phase focuses on finding all sources of electronically stored data that may be relevant to a legal action. Companies are required to keep such data and eventually may have to provide it to opposing counsel.

Legal departments generally have a rough idea which employees are associated with a legal matter, the time frame within which relevant information may have been produced, and keywords that are likely to lead to relevant data. It's up to the legal department's IT liaison to ensure that all appropriate IT systems will be included in the discovery effort.
It's also up to the IT liaison to dispel the Google myth. "Everybody has a perception that you can go to a screen and do a search, and all of the things relevant to a search are going to pop up," Singh says. Clearly, e-discovery isn't nearly that easy.

Often the key constraint is too few hands to do the work, as many IT organizations have been "cut to the bone," Singh says. In-house counsel shouldn't assume that e-discovery requests will always get priority over other projects that IT staffers are working on.
There are technology obstacles as well. When a discovery tool is used to collect information on desktops or servers at remote locations, coordination is needed with the network operations group to get access to those systems.

Another complication is that potentially relevant information may reside on mission-critical systems, and IT teams get twitchy when outsiders ask to mess with them. D'Agostino looks for workarounds, such as agreeing to read-only access or collecting data during off-peak hours.
Framing the scope of the discovery effort also is critical for IT-legal teams. If an attorney asks for all of a specific employee's e-mails on a certain subject, does IT just need to look in the in-box? What about the "Sent" or other folders? Does the request include locally stored files and ones on flash drives? If the request isn't clear, it will lead to mistakes. "You don't want technology folks interpreting legal requests," D'Agostino says.

Search terms also play a part in determining the scope of a discovery effort. Broad terms will kick back an unwieldy pile of results, as the legal department at Webcor Builders learned the hard way.

"They would say, 'Give me any e-mail about Oracle,'" says Webcor CIO and senior VP Gregg Davis, who also serves as a liaison between the construction company's IT and legal departments. The result was tens of thousands of e-mails when legal needed only a few hundred.
Experiences like this one led Webcor to form a discovery team that includes Davis, two IT administrators, two members each from the legal and HR departments, and people from the business side as needed. Since then, attorneys have been doing a better job coming to IT with refined search terms, specific date parameters, and the specific people whose data is involved, Davis says. As for IT, it has taught attorneys a thing or two about "if-and" statements and other search techniques to produce more accurate results, he says.

The Preservation Phase
Preservation, the third stage of the discovery process, is where IT has a major role in protecting potentially relevant information from being destroyed. Companies must keep information not just when litigation's begun, but also when there's a reasonable expectation of legal action. For example, if a company fires an employee and things turn acrimonious, the legal department may issue a preservation notice for that employee's e-mail, HR records, and work files in anticipation of a lawsuit.

In these cases, IT must be able to shut down the machinery of automated deletion. So if the company's document management system purges files after a certain time period, exceptions must be made for data associated with a discovery effort. The same may apply to policies for overwriting backup tapes. Attorneys also rely on IT to put safeguards in place to prevent people from deleting any data that's potentially relevant to a discovery effort from PCs, shared files, and removable media.

IT has two options for preserving data. The first is to copy and move data to a secure repository. The upside to this approach is that IT and legal can be confident that data will be there when it's needed. But it's time-consuming and expensive, and it can be wasteful since many times the data won't ever be subject to legal review or required by the court.

The second option is to preserve data in place, changing user or administrator permissions to prevent people from opening, writing to, or copying the data. Many archives and document management systems let IT place legal holds on information.

Preservation, whether through moving data or keeping it in place, requires IT and legal to work together because large volumes of information may end up on legal hold for months or even years, which will affect storage demands.

The Collection Challenge
The final phase that requires IT involvement is collection. Here, relevant data is gathered and delivered to inside or outside attorneys (sometimes both), who review and analyze it. Based on that analysis, counsel may expand the search, coming back to IT with new names of employees whose data could be relevant to the case, as well as new search terms and date ranges.
Collection must be conducted in a way that preserves the data's integrity, including metadata such as information on when a file was last opened or changed. Where possible, collected information is also expected to be available to counsel in its native file format.

At Blue Cross Blue Shield of South Carolina, D'Agostino collects data himself, operating the discovery software used at the company. Verizon's Singh helps craft requirements and track down locations where relevant data may reside, but the company's security department does the collecting. Verizon chose this approach because its security team is experienced in collecting digital evidence for forensic investigations and knows how best to protect metadata and maintain data's chain of custody.

At Webcor, Davis runs sensitive searches himself. For nonsensitive ones, two trained IT administrators use an e-discovery module that sits on top of the company's e-mail archive. They use terms and date ranges provided by the legal counsel's office to conduct searches. The system is set up so that the administrators don't get to see the results; only the company's attorneys have that access.

It Takes A Team
Companies can't appoint a legal-IT liaison and consider their work done. E-discovery needs a team that includes, at a minimum, IT and legal representatives, plus people from other areas with major information management responsibilities such as HR and records management. Thomas Smith, a partner and founding member of the e-Discovery Analysis and Technology group at law firm K&L Gates, also recommends a business unit representative who knows how information is used, what the business needs are, and where relevant information resides.
Regular meetings are key, even when there isn't pending litigation. Webcor CIO Davis meets quarterly with counterparts in legal and HR, and they sometimes bring in a business unit executive. The meetings are used to set policies and procedures, and for IT and legal to update each other on the latest trends in their fields that may be relevant to discovery. When a case hits, Davis maps out a strategy with legal counsel and HR for the collection and preservation of relevant information. E-discovery teams at companies where litigation is common tend to meet more frequently.

At Verizon, the e-discovery team takes part in finding and selecting discovery tools, so there's input on the IT, legal, and security needs when testing and choosing products, Singh says.
Some of the most important work e-discovery teams do in regular meetings is to set policies on information retention and disposal. Poor policy can be costly. IT may assume the legal department wants to save every e-mail, when in-house counsel wants IT only to save information that's potentially relevant to a legal action.

In fact, the legal department likely wants IT to delete information when allowed by the law and industry regulations. That reduces the amount of potential information that has to be collected and analyzed, saving on the cost of e-discovery.

"Follow your policies" is one of the first lessons Webcor's Davis and his IT team learned from working with legal counsel. "One of the first questions they ask you in a deposition is, 'Do you ever deviate from policy?'" Davis says. "If you say yes, you have another three hours on the stand. The minute you deviate from policy, you open the door to massive damages."

Opposing counsel is sure to raise questions about a company's ability to maintain control over its data, especially if that data strengthens a company's defense. "But when you show how on top of this you are, you take a lot of wind out of the opposing counsel's sails," Davis says.
Solid e-discovery policies won't guarantee a win in court. But they can ensure that a case isn't lost based on a misstep with data identification, collection, and preservation. Key to this is the strength of the e-discovery team, one that has established comprehensive policies and has mechanisms in place to ensure that those policies are followed.

Labels: 2009 eDiscovery Predictions and Trends, Blue Cross Blue Shield of South Carolina, Federal Housing Enterprise Oversight, Federal Rules of Civil Procedure, FRCP, Verizon

posted by Charles Skamser @ 1:07 PM 0 Comments

Cloud Computing Will Emerge as a Viable Option for eDiscovery in 2009

As a follow-up to my September 23, 2008 article titled, "Cloud Computing is Coming to eDiscovery," it appears that Cloud Computing is beginning to gain favor with the eDiscovery crowd. 2009 will be a big year for Cloud Computing in general as analysts are predicting that that by 2011 the volume of Cloud Computing market opportunity would amount to $160bn, including $95bn in business and productivity apps (email, office, CRM, etc.) and $65bn in online advertising. Given this fact and based on what I am seeing and hearing in the eDiscovery market, I am now willing to predict that it will be one of the big litigation technology trends for 2009 in eDiscovery.

Melanie Rodier, commented in a January 23, 2009 article appearing in the Regulatory Compliance Section of the Wall Street and Technology website titled, "Cloud Computing Gives E-Discovery a Lift," that, "With the amount of infrastructure required to support e-discovery capabilities, firms are looking to cloud computing’s utility model as a way to rein in storage and retrieval costs while improving their regulatory response. I agree with Melanie and believe that our current economic crisis that is forcing Information Technology (IT) budget cuts along with the associated and quickly emerging regulatory and compliance requirements, will prompt enterprises, who may have previously been considering an "in-house" solution, to consider Cloud Computing based eDiscovery / eCompliance solutions much more aggressively in 2009.

In a January 25 2009 Blog posting titled "E-Discovery Cloud Computing Marketplace Outlook," Brad Jenkins states that, My prediction (and I am not alone) is that e-discovery cloud computing will make a significant impact on the EDD marketplace and how data is processed. I expect that software companies moving to a Web 2.0 platform and offering on-demand web-based solutions will gain significant market share over the next few years."

However, not everyone is on board. I continue to hear detractors claiming that Cloud Computing is nothing more than "baked over" ASP and will never amount to anything. Or that enterprises are never going to allow their data to reside outside the firewall. And others of pointed out that "the Internet pipe" still isn't big enough to move all the massive amounts of Electronically Stored Information (ESI) required for eDiscovery and eCompliance. And some, such as Richard Stallman, founder of the Free Software Foundation and creator of the GNU operating system, have resorted to name calling and says cloud computing is "stupidity" that ultimately will result in vendor lock-in and escalating costs.

Well, many once thought that the world was flat and that turned out to not be true (unless you live in Kansas). So, I am going to stand by my prediction that Cloud Computing will be a big trend in eDiscovery in 2009.

Labels: 2009 eDiscovery Predictions and Trends, Cloud Computing, eDiscovery, Saas, Software-as-a-Service

posted by Charles Skamser @ 9:57 AM 3 Comments