Evidence Lifecycle Management

I had to the opportunity this past week to speak with Steve Liley, the Founder, President and CEO of WorkProducts and get an update on the current status of his Evidence Lifecycle Management (ELM) appliance. The discussion was prompted in part from my recent post titled, "eDiscovery Confounds Companies and Their Lawyers" and several other posts over the past month revolving around my recommendations for the enterprise to engage in pro-active eDiscovery.

I met Steve about a year ago and found him to have a very indepth understanding of the eDiscovery market with specific insight into pro-active eDiscovery. As such, I always enjoy our discussions/debates regarding the current state of the eDiscovery market.

Discussion Highlights
In our discussions this past, Steve indicated that his customers and ELM Ecosystem Partners are looking to the MatterSpace® Evidence Lifecycle Management (ELM) appliance for preservation management and case assessment/ESI delivery. This is because preservation management and case assessment are interwined with hold notices added/released based on case assessment, etc. Looking at this from the EDRM standpoint, this places MatterSpace® at the very beginning of the cycle if not earlier and places them in competition with other applicance vendors such as Kazeon and Mimosa Systems, litigation software providers such as Autonomy, and best of breed providers for litigation hold such a PSS Systems and Exterro.

He went on to further emphasize that another big reason for this is the WorkProducts business model, which is focused on MatterSpace® being much cheaper than one of the Top Prservation Software Provider (traditional software install for preservation mgt. = $500K+) with a small upfront subscription fee and per custodian crawl vs. a gigabyte model for collection/case assessment. This allows all size cases (3 custodian employment matters, etc.) to utilize MatterSpace® even when the stakes are small ($20K claim) as the user knows how much they are going to spend upfront.

Steve provided me with an example of a large company with 1,000 annual cases that has deployed MatterSpace® for just this reason. He contends that the per custodian crawl model scales up better than per gigabyte scales down for preservation management and case assessment.

We finished up our discussion by discussing the fact that facilitating eDiscovery services providers with behind a corporate firewall appliance that does preservation management & case assessment to then export data to service providers per gigabyte processing and review business models provides for a seamless client experience on all size litigation, scaling with each client’s case management needs.

My Conclusion
The proactive eDiscovery technology vendors hold the key to reducing the complexities and cost of "one-off" eDiscovery. As such, I believe that Steve and WorkProducts have a very bright future.

About WorkProducts
WorkProducts provides a leading Evidence Lifecycle Management (ELM) solution, the MatterSpace® Appliance, that speeds up matter-specific ESI delivery by a factor of ten - with improved quality - while dramatically reducing the risks and costs of ESI processing and legal review. MatterSpace is a secure, plug-and-play hardware and software appliance that quickly installs in a customer's network environment, integrating their eRecords systems with downstream eDiscovery products and services. MatterSpace "crawls" the enterprise network to identify, preserve, collect, index, and de-duplicate all accessible structured and unstructured electronically stored information (ESI) for all identified custodians and sources. This includes all enterprise accessible desktops, file shares, Exchange/Domino email, SharePoint, Symantec Enterprise Vault, ZANTAZ EAS, EMC Documentum, Open Text, etc. It also facilitates collaboration among all concerned parties and monitors and tracks all matter-specific ESI communications and events, including litigation holds.

Labels: Autonomy, EDRM, ELM, Evidence Lifecycle Management, Exterro, Kazeon, Mimosa Systems

posted by Charles Skamser @ 10:55 AM 0 Comments

Is Zublake Relevant in 2008?

With the maturation of records management standards, the evolution of Evidence Lifecycle Management (ELM) and the decrease in the cost of online storage technology, is the relevance of some of the Zubulake rulings ready to be challenged? Or, is it still the "Gold Standard" for eDiscovery? What do you think?

Zubulake Overview
During 2003 and 2004, United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in the case of Zubulake v UBS Warburg that are considered the first definitive opinions on a wide range of electronic discovery issues. It was, using the words from my Blog, a paradigm shift in eDiscovery.

The eDiscovery issues that were defined by these decision include; (1) the scope of a party's duty to preserve electronic evidence during the course of litigation; (2) an attorney's duty to monitor their clients' compliance with electronic data preservation and production; (3) data sampling; (4) the ability for the disclosing party to shift the costs of restoring “inaccessible” back up tapes to the requesting party; and, (5) the imposition of sanctions for the spoliation (or destruction) of electronically stored information/evidence.

Zubulake I, II, III
Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). In a gender discrimination suit against her former employer, the plaintiff requested that the defendant produce "[a]ll documents concerning any communication by or between UBS employees concerning the plaintiff." The defendant produced 350 pages of documents, including approximately 100 pages of email. The plaintiff knew that additional responsive email existed that the defendant had failed to produce because she, in fact, had produced approximately 450 pages of email correspondence. She requested that the defendants produce the email from archival media. Claiming undue burden and expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the Rowe decision. Stating that a court should consider cost-shifting only when electronic data is relatively inaccessible (such as in this case), the court considered the Rowe 8-factor cost shifting test. The court noted that the application of the Rowe factors may result in disproportionate cost shifting away from large defendants, and the court modified the test to 7 factors: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production compared to the amount in controversy; (4) the total cost of production compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the information. The court ordered the defendant to produce, at its own expense, all responsive email existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The court determined that only after the contents of the backup tapes are reviewed and the defendant's costs are quantified, the court will conduct the appropriate cost-shifting analysis. See also Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003).

Zublake IV
Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In the restoration effort that occurred according to previous e-discovery decisions in the matter, the parties discovered that certain backup tapes were missing and that emails had been deleted. The plaintiff moved for evidentiary and monetary sanctions against the defendant for its failure to preserve the missing tapes and emails. The court found that the defendant had a duty to preserve the missing evidence, since it should have known that the emails may be relevant to future litigation. Although the plaintiff did not file her charges until August 2001, by April of that year, "almost everyone associated with Zubulake recognized the possibility that she might sue," the court wrote. The court also found that the defendant failed to comply with its own retention policy, which would have preserved the missing evidence. The judge found that although the defendant had a duty to preserve all of the backup tapes at issue, and destroyed them with the requisite culpability, the plaintiff could not demonstrate that the lost evidence would have supported her claims. Therefore, it was inappropriate to give an adverse inference instruction to the jury. Even though an adverse inference instruction was not warranted, the court ordered the defendant to bear the plaintiff's costs for re-deposing certain witnesses for the limited purpose of inquiring into the destruction of electronic evidence and any newly discovered emails.

Zubulake V
Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004). During an ongoing discovery dispute in an employment discrimination case, the employee moved for sanctions against the employer for failing to produce backup tapes containing relevant emails and for failing to produce other relevant documents in a timely manner. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In this latest motion, the employee contended that the employer, who recovered some of the deleted relevant emails, prejudiced her case by producing recovered emails long after the initial document requests. Furthermore, some of the emails were never produced, including an email that pertained to a relevant conversation about the employee. As such, the employee requested sanctions in the form of an adverse inference jury instruction. Determining that the employer had wilfully deleted relevant emails despite contrary court orders, the court granted the motion for sanctions and also ordered the employer to pay costs. The court further noted that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate relevant information, to preserve that information, and to timely produce that information. In addressing the role of counsel in litigation generally, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched." Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained, and produced. Additionally, the court declared that litigators must guarantee that identified relevant documents are preserved by placing a "litigation hold" on the documents, communicating the need to preserve them, and arranging for safeguarding of relevant archival media.

Labels: Discovery, Distruction of Evidence, eDiscovery, ELM, ESI, Evidence Lifecycle Management, FRCP, Litigation, United States District Courts, Zubulake

posted by Charles Skamser @ 8:41 AM 0 Comments

ELM Appliances are First Sign of Falling Costs for eDiscovery

As the namesake of this Blog suggests, the litigation market is in the throws of a major paradigm shift. Most markets that go through these shifts find that consulting fees charged by the early experts seem excessive. But, they are willing to pay these fees for as long as they can produce the required results. A good example or point of reference are the consulting fees that website development firms were able to charge when we were going through the "bricks to clicks" paradigm shift and everyone wanted to get their business on the Web.

Following tradition, when the changes in the FRCP in December of 2006 set the federally sanctioned groundrules for handling ESI, eDiscovery consulting firms filled the need and siezed the opportunity to charge "premium fees". Don't get me wrong, I am not some anti-capitalist passing judgement on economic results of the open market and calling for government intervention and price controls. I am merely pointing out that there is a well defined and historcially proven cycle that technology markets go through during major paradigm shifts. And, part of this cycle enables both premium consulting fees and in some cases premium costs associated with new and required technology.

This all being said, just as technologist came to the rescue of the website development market by automating standard and mundame tasks thereby reducing the overall cost of development and deployment, I beleive that Evidence Lifecycle Management (ELM) appliances and related technologies from such vendors as WorkProducts (http://www.workproducts.com/) are being initially introduced and sold with a Total Cost of Ownership (TCO) and Return on Investment (ROI) model that includes automating the standard mundame tasks that were previsouly being done by $400 per hour eDiscovery consultants.

These mundame tasks include such things as managing the location of employee data sources and therefore easily and automatically enabling the collection of data from multiple data sources such as PSTs from multiple servers in mutliple locations for specific custodians for specific dates and or other routine search tems. This is certainly something that an eDiscovery Consultant could do for $400 per hour. And, if an organization only has 1 or 2 potential matters per year to consider, it may be more financially feasible to hire the consultant.

However, if an organizaiton has the expectation of many potential matters per year, the appliance financial model can't be beat and once in place will probably even enable the organization to address very small matters that they just plain settled in the past because it cost less to settle than to hire the consultants to figure out the merits of the case.

So, am I predicting the collapse and early demise of the very lucrative eDiscovery consulting market? Not at all.

With the rapidly increasing introduction of technology to manage the mundame and standard tasks, eDiscovery consultants can continue to own the more difficult to automate and demanding tasks such as finding deleted data, searching for data needles in enterprise haystacks and positioning themselves for the next paradigm shift and related opportunities.

It's a great system with room for everyone. Consultants support the innovators and early market adaptors by investing the time and resources to figure out what has to be done and how to do it. Hardware and software Technologists then step in and automate these processes and reudce the costs for the mainstream market buyers. And together, they move from paradigm shift to paradigm shift fueling our economies ability to continue to grow through the introduction of new technology.

Labels: Consulting Fees, eDiscovery, eDiscovery Consultants, ELM, ESI, Evidence Lifecycle Management, FRCP, Litigation, Paradigm Shifts, Return on Investment, ROI, TCO, Total Cost of Ownership

posted by Charles Skamser @ 9:45 PM 0 Comments

Proactive Enterprise eDiscovery Should be a Standard Business Practice

With the changes in the Federal Rules of Civil Procedure at the end of 2006 along with the subsequent and associated sanctions and law suites, corporations that face litigation on a fairly regular basis should consider treating proactive ediscovery as a standard operating processes vs. a series of discrete events.

For example, many organizations are now taking steps toward automating the litigation hold process. As part of this process, witnesses (e.g. employees, vendors, etc.) will automatically receive instructions to suspend the destruction of documents that might be potentially pertinent to an anticipated litigation/investigation matter. However, even in the face of the well know federal and state actions and sanctions that have been broughg against those organizations that do not comply, there is strong evidence that preservation orders, when emailed or even handed out, will not be followed.

As such, these organizations are being forced to turn to more automated and integrated ESI detection and collection to accompany the hold order. As a results, we are quickly seeing explosive growth in what has been tagged Evidence Lifecycle Management (ELM).

Although a somewhat disjointed market that still requires a fair amount of consulting, we are starting to see some very good semi-integrated solutions from vendors such as Kazeon (http://www.kazeon.com/), Clearwell (http://www.clearwellsystems.com/) and WorProducts (http://www.workproducts.com/) that include features such proactive identification of employees (i.e. potential custodians), mapping of their data, preservation and hold lifecycle management, automated collection, culling and de-duping, preservation management, Electronic Data Discovery and Computer Forensics, Online Review, Hosting and long term Storage.

As anyone that reads this Blog on a regular basis knows, I am a big proponent of SaaS and onDemand delivery and therefore will be looking for the first vendor or consortium of vendors that develops and releases a true onDemand SaaS ELM solution.

Stay tunned for the results of my investigation.

Labels: Chain of Custody, eDiscovery, ELM, ESI, Evidence Lifecycle Management, FRCP, Litigation, Litigation Service Providers, Litigation Support Software, Preservation, Software-as-a-Service

posted by Charles Skamser @ 8:31 AM 0 Comments