Five Initial Steps to Meet the Governance, Risk and Compliance Obligations Brought on by Today's Big Data File Stores

The accelerating increase in the amount of unstructured Electronically Stored Information (ESI) is leaving IT organizations struggling with how to store and manage all of this new information. Aside from just providing the underlying storage infrastructure to host this amount of data, companies are also faced with the task of properly managing their Big Data file stores to meet existing governance, risk and compliance obligations. To do so, there are five steps they can take now to position their organization to meet them.

Labels: Big Data, Compliance, eDiscovery, FISMA, FRCP, Governance, GRC, HIPPA, Information Governance, Legal, Litigation, Risk, Sarbanes-Oxley

posted by Charles Skamser @ 10:50 AM 0 Comments

BeyondRecognition Ranked as Top Disruptive eDiscovery Technology to Watch in 2012

Labels: eDiscovery, Legal, Litigation Technology, OCR, Optical Character Recognition

posted by Charles Skamser @ 10:14 AM 0 Comments

Top Five eDiscovery Technologies to Watch in 2012

Over the past 12 months I have had the unique opportunity to seek out and review over 100 eDiscovery technologies.  As a result, I have had the pleasure of being exposed to some exciting new technologies that will have a disruptive impact on the eDiscovery market in the second half of 2012.

With over 100 technologies to choose from, culling the list down was not an easy task.  Therefore, I had to rely upon some amount objective criteria such as platform technology stack and supported environments along with a heavy dose of my subjective opinion in regards to how disruptive a technology could be within the paradigm shift of the eDiscovery market.

The objective, more technical criteria was easy.  At least in regards to 4 of my 5 choices.  The subjective criteria was a bit more complicated as I took into consideration criteria such as pricing, positioning, deployment flexibility, management team and uniqueness.

Following are my choices for the Top Five eDiscovery Technologies to Watch in 2012:


BeyondRecognition, BeyondRecognition

Optical Character Recognition (OCR), a foundational technology for litigation services and eDiscovery hasn't changed much in 30 years.  And, vendors really haven't worked on making it more accurate or added any significant new bells and whistles.  Therefore, after I had the opportunity to spend some time with John Martin from BeyondRecognition and review his new glyph based image processing technology designed to replace OCR and more, it was an easy decision to rank Beyond Recognition as the technology that will have the most disruptive impact on the eDiscovery market in the second half of 2012.

With character and word identification and conversion accuracy at 99.5%+, single instance character and word correction, Logical Document Determination (LDD), document type classification, duplication document detection, database field indexing and a cloud based scalable architecture that can process terabytes of data per day, BeyondRecognition will most definitely have a disruptive impact on the eDiscovery market and any other markets that require large volumes of text based materials to be processed and coded.  For more information about BeyondRecognition, please visit: http://www.beyondrecognition.net/BeyondRecognition,_LLC/Overview.html.


X1 Social Discovery, X1 Discovery

With the rapid proliferation of social media, I predict there are going to be very few eDiscovery and Information Governance projects going forward that don't include potential evidence from social media sources such as Facebook, LinkedIn and Twitter.  Therefore, I included X1 Social Discovery™ from X1 Discovery as one of my top five eDiscovery technologies to watch in 2012.

X1 Social Discovery™ is the industry's first investigative solution specifically designed to enable eDiscovery and computer forensics professionals to effectively address social media content and web content, in one single interface. X1 Social Discovery™  provides for a powerful platform to collect, authenticate, search, review and produce electronically stored information (ESI) from Facebook, Twitter, LinkedIn and other web sources.  For more information about X1 Social Discovery™ , please visit: http://x1discovery.com/social_discovery.html.



X1 Rapid Discovery, X1 Discovery

With the accelerating volume of Electronically Stored Information (ESI) in the cloud, I predict there are going to be more and more eDiscovery and Information Governance projects going forward that require potential evidence to be extracted from the cloud and possibly even processed in the cloud.  Therefore, I included X1 Rapid Discovery™ from X1 Discovery as one of my top five eDiscovery technologies to watch in 2012.

With X1 Rapid Discovery™, organizations can quickly access, search, triage and collect their data in their existing cloud environments, without having to first export that data; thereby transforming how organizations address the challenges of search, collection and analysis of cloud-based data. While other eDiscovery products require migrating or even shipping data to the vendor tools, X1 Rapid Discovery™  is a hardware-independent software solution that uniquely installs and operates on demand where your data currently resides. For more information about X1 Rapid Discovery™ , please visit:  http://x1discovery.com/rapid_discovery.html.


TunnelVision, Mindseye Solutions

The Early Case Assessment (ECA) tool landscape has changed dramatically over the past 12 months.  New tools that cover a larger percentage of the EDRM model and are built upon newer more flexible technologies have emerged with aggressive new pricing models. Therefore, I included TunnelVision from Mindseye Solutions, a representative of those new ECA platforms, as one of my top five eDiscovery technologies to watch in 2012. 

TunnelVision was purpose-built by long time eDiscovery industry experts to address the challenges that organizations are facing when supporting eDiscovery and Information Governance. The technology is a simple yet flexible platform, designed to scale, and delivers full transparency. TunnelVision carries a predictable cost model and helps in managing risk, identifying exposure, and eliminating wasted time throughout the process. For more information about TunnelVision from Mindseye, please visit: http://www.mindseyesolutions.com/.


Equivio Zoom, Equivio

Predictive coding or Technology Assisted Review (TAR) has captured the imagination of the industry in the first half of 2012.  As such, I wanted to include predictive coding technology in my list of top five eDiscovery technologies to watch in 2012 and therefore I chose Equivio Zoom from Equivio.

Equivio develops text analysis software for eDiscovery. Users include the DoJ, the FTC, KPMG, Deloitte, plus hundreds of law firms and corporations. Equivio offers Zoom, an integrated web platform for analytics and predictive coding. Zoom organizes collections of documents in meaningful ways. So you can zoom right in and find out what’s interesting, notable and unique. For more information about Equivio Zoom from Equivio, please visit: http://www.equivio.com/.


Summary and Comments

With over 100 technologies to choose from, culling the list down was not an easy task.  Therefore, I had to rely upon some amount objective criteria such as platform technology stack and supported environments along with a heavy dose of my subjective opinion in regards to how disruptive a technology could be within the paradigm shift of the eDiscovery market. BeyondRecognition, X1 Social Discovery, X1 Rapid Discovery,  TunnelVision and Equivio Zoom definitely met these criteria.

It will be interesting to review my list of Top Five eDiscovery Technologies to Watch in 2012 this time next year when I choose another list.  Some on the 2012 list will have had a big impact and some will not.  However, one thing is for sure, each of these technologies represents a major step forward for litigation and eDiscovery technology.


Additional Product Reviews

Over the coming weeks, I will be posting additional product reviews for each of the technologies listed in the eDSG Top Five eDiscovery Technologies to Watch in 2012.

Labels: Cloud Computing, Early Case Assessment, ECA, eDiscovery, Legal, Litigation, OCR, Optical Character Recognition, Social Media

posted by Charles Skamser @ 4:21 PM 0 Comments

The Best Place to Perform Technology Assisted Review (TAR)

The resulsts of eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?" are in and they reveal that 43% of the respondents are outsourcing  their Technology Assisted Review (TAR) to third party document review providers.  These results seem to be somewhat contradictory to the prime objective and overall value proposition of the Legal Services Outsourcing (LSO) or Legal Process Outsourcing (LPO) vendors to provide less expensive manpower for labor intensive tasks such as document review.

However, according to a report on the Top Ten Trends in Legal Outsourcing for 2012 by Fronterion LLC,  legal technology platforms (such as TAR) will be increasingly bundled together with traditional LPO offerings, combing two of the most important trends shaping  the legal profession today.  This means using software systems as well as low cost human labor to provide  cheaper  and more efficient legal services.

This trend seems to actually have been evolving for years as legacy LPO players have long been utilizing software tools and techniques during the document review processes including: document clustering, email thread management and keyword and concept search to cull and organize the documents in order to increase the speed and reduce the overall cost of review.  Adding predictive coding to mix as a way to reduce the cost even further seems like a logical progression in the evolution of the LPO as they strive to maintain their margins.

The percentage of the respondents  that chose something other than an LSO for where they send their Technology Assisted Review (TAR) also provided some interesting results:

• Outside Counsel (14%)
• Internal as part of Document Review Software (14%)
• Internal as separate Technology Assisted Review (TAR) Software (29%)

The fact that 14% of the respondants chose Outside Counsel for where they send their Technology Assisted Review (TAR) indicates that although the eDiscovery market is going through a paradigm shift with corporate legal departments bringing eDiscovery services in-house, there are still some legal departments relying on their outside counsel for eDiscovery services.  An interesting question for a future eDSG poll would be whether or not legal departments send their TAR to outside counsel because their outside counsel is proficient at TAR or because they send all of their eDiscovery work to outside counsel.   It would also be telling to investigate whether or not these outside counsel are performing the TAR services internally or sub-contracting them to an LPO or LSO.

The results of the eDSG 2012 Survey of the General Counsel from the Global 250 indicated that 86% of the respondants send their document review to either outside counsel or an LPO.   However, the survey also revealed that 75% of the respondants were frustrated that neither outside counsel nor legacy LPOs were providing adequate support for eDiscovery.  This survey also revealed that 80% of general counsel from the global 250 were frustrated with having to deal with software vendors.  This statistic leads into the last two facts from the eDSG weekly poll on where respondents are sending TAR.  The poll reveals that 43% are performing TAR internally which indicates that they are having to "deal" with software vendors.  The eDSG weekly poll is open to anyone that wants to vote and therefore the respondants are not necessarily general counsel from the global 250.  In fact, I would venture to say that very few is any of the respondants to this week's poll were general counsel.  However, it is still significant and shows a trend that 43% of the respondants indicated that they are performing TAR internally.

The fact that 14% of the respondents chose Internal as part of Document Review Software for where they send their Technology Assisted Review (TAR) indicates that some of the document review vendors have successfully integrated TAR into their review platforms.

However, the fact that 29% of the respondants chose Internal as separate Technology Assisted Review (TAR) Software for where they send their Technology Assisted Review (TAR) indicates that eDiscovery users are not yet comfortable with TAR and may not be ready to use it as part of their stand document review process. However, this statistic is significant enough to indicate that eDiscovery users understand the value of TAR and are therefore using in those situations where it satisfies the technical and legal requirements.

The resulsts of eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?" reveals that users within the eDiscovery market is still trying to figure out when, where an how to best utilize Technology Assisted Review (TAR).  Complicated by the ongoing paradigm shift of responsibility for eDiscovery services moving to the legal deparments and exaserbated by the evolution of both LPOs and outside counsel trying to refine their business models, TAR users should take the time to understand their internal requirements and then investigate the best approach, partners and place to perform TAR.  It may not be as straight forward to they think.

Click Here to view the results of the eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?".

Labels: Document Review, eDiscovery, General Counsel, global 250, Legal, Litigation, Litigation Software, Predictive Coding, TAR, Technology Assisted Review

posted by Charles Skamser @ 9:21 AM 1 Comments

Percieved Value of Technology Assisted Review (TAR)

Labels: Computer Assisted Review. Document Review, eDiscovery, Legal, Litigation, TAR, Technology Assisted Review

posted by Charles Skamser @ 5:56 PM 0 Comments

eDiscovery Will Follow the Cloud Computing Boom

The National Inflation Association (NIA) reported this week that  after years of rumors about cloud computing going mainstream around the world, the cloud computing boom is now finally here. They predict that by the year 2013, cloud computing could become a bigger boom on Wall Street than the dot-com boom was in the year 2000. Cloud computing is currently a $74 billion industry that accounts for 3% of global IT spending, but in 2013 cloud computing is expected to become a $150 billion market.

The NAI further stated that 2012 will be remembered as the year in which cloud computing started to become widely adopted worldwide. Cloud computing is expected to create 14 million new jobs globally by year 2015. In the consumer space, Gartner is predicting that cloud services will be on 90% of personal consumer devices by year 2015 so that consumers can store, connect, stream, and synchronize content across multiple platforms at different locations.

Industry analyst are heralding the explosion in the Cloud computing market as great news for the Cloud Service Providers (CSP).  According to a forecast from independent technology analyst firm Ovum, the global public cloud services market will more than triple in size over the next five years to reach revenue of $66 billion in 2016 and the market will see a compound annual growth rate (CAGR) of 29.4 percent from the $18 billion it reached at the end of 2011.  Ovum goes on to report that in terms of the cloud computing service lines, Software-as-a-Service (SaaS) will shrink from 87 percent of the market in 2011 to 62 percent in 2016 due to the rise of infrastructure as a service (IaaS) and platform as a service (PaaS), which will grow from 9 percent and 5 percent, respectively, to 23 percent and 16 percent by the end of the forecast period.

And, there are numerous other studies by most of the major international industry analysts that predict a dramatic increase in the size of just about everything having to do with Cloud computing.

However, it is my impression that the inevitable and potentially dramatic increase in the demand for eDiscovery and Information Governance due to this explosion of the Cloud computing market, is flying under the radar of most analysts.  eDiscovery and Information Governance professionals know full well that there is a linear and possibly an expontial relationship between the volume of Electronically Stored Information (ESI) and the demands and cost of identification, collection, analysis, processing and production of that ESI.

In 2011, Gartner predicted that the eDiscovery market would reach $1.5 Billion in revenue by 2013.  And, depending upon which analyst you follow (and believe), the size of the Information Governance market is anywhere from 2X to 10X the size of the eDiscovery market.  I believe that all of these forecasts are extremely low.

Further, a recent study by eDSG on "How Cloud Service Providers Support eDiscovery and Information Governance" as reported on this blog on March 7, 2012, indicated that 95% of  the Cloud Service Providers and 98% of the general counsel from the global 2000 (based on participation in the survey) did not have a plan for responding to eDiscovery and Information Governance requests for ESI residing in CSP facilities.

In summary, my prediction is that the explosion in the size of the Cloud computing market as reported by the National Inflation Association is really good news for any of the technology and service providers, along with their investors, that are planning to support eDiscovery and Information Governance in the Cloud.  As the name of this blog implies, the eDiscovery paradigm shift is underway and the demand of Cloud computing is only going to make that shift and the associated size of the market even bigger.

The full text of the press release by the National Inflation Association: http://www.marketwatch.com/story/cloud-computing-is-new-wall-street-boom-says-nia-2012-03-20

Labels: Cloud, Cloud Computing, Cloud Service Providers, CSP, Early Case Assessment, eDiscovery, Information Governance, Law, Legal, Legal Technology, Litigation

posted by Charles Skamser @ 8:33 AM 0 Comments

The Perfect Storm: eDiscovery and Cloud Service Providers

The market for Cloud Service Providers (CSPs) is very sunny.  Forrester Research predicted in a research report published earlier this year titled, “Sizing the Cloud” that the global cloud computing market would reach $241 billion in 2020 compared to $40.7 in 2010.  And, Gartner Predicts that the eDiscovery market will reach $1.5 Billion by 2013.  However, based upon the research that I have completed over the past sixty (60) days, Cloud Service Providers (CSPs) and their clients are ignoring eDiscovery as an important component of a standard cloud service offering.

I have some theories in regards to why this is the case:

CSPs DON'T UNDERSTAND eDISCOVERY
Over the pat five (5) years Cloud Service Providers (CSPs) have been busy focusing on their core offerings of Infrastructure-as-a-Service (IaaS), Platform-as-a-Service (PaaS) and Software-as-a-Service (SaaS), honing their value propositions and trying to figure out how to differentiate themselves from the pack.  Overwhelmed with the rudimentary issues of what to offer and how to make a profit , eDiscovery has not been a requirement that has reached the road map of any CSPs that I have interviewed.

Most of the reasons behind this is the fact that eDiscovery is actually a "latent pain" that the CSP's clients and prospects are not asking for (I will cover this in more detail in the next section).  However, part of the reason may be just plain semantics.  I have found that when you ask a CSP business development executive if their clients are asking about eDiscovery, the answer will be no.  However, if you change the question and ask if their clients are asking about information governance, compliance, business analytics or something even simpler like universal or federated search, the answer may be yes.  This subtle difference is confusing to most in the eDiscovery market and therefore it is no wonder that it is very confusing to the CSP market.As In indicated in my Blog post on September 15, 2011,titled, "Evolving from Information Governance to eDiscovery", I believe that eDiscovery is actually part of a larger market called information governance (IG).  And, as Sunil Soares, the Director of Information Governance within the IBM Software Group indicated in a blog post on April 11, 2011 titled, Why Information Governance is a Market, Not Just a Process, “information governance is like the blind man and the elephant. Depending on which part of the elephant you touch, people define information governance to include master data management, data stewardship, data quality management, metadata management, business glossaries, information lifecycle management and security and privacy.” 

I would actually include several other components as integral parts of IG in pursuit of my premise that if Gartner predicts that the eDiscovery market is going to reach $1.5 Billion by 2013, the information governance market is going to be many times this size.  Or, in other words, more than likely the largest  software and services market on the planet in the next five (5) years (Note that HP paid $11 Billion for Autonomy to play in the IG Market).

So, maybe CSPs need to think of eDiscovery as Information Governance and concentrate on the fact that information governance is potentially the single biggest market on the planet in the coming years?

CSP CLIENTS DON'T UNDERSTAND eDISCOVERY
Another interesting fact emerged from my recent study on eDiscovery in the CSP market.  It appears that most CSP enterprise clients don't understand eDiscovery.  Come to find out, a very high percentage of the standard CSP client base are actually "renegade" business units with global 2000 enterprises that were unhappy being held hostage by their IT organizations and decided to outsource their information management to a CSP.  Unless the business unit in question is the legal department (which is highly unlikely), the stakeholders within these units have no idea what eDiscovery or information governance is or would they know to even ask their CSP if it can be supported if the need were to present itself.

After further investigation into this market dynamic, the story actually gets even more interesting.  If one of these global 2000 enterprises is sued and is presented with a request to produce information (ESI) or some governance regulatory entity asks for proof of compliance, the request is normally handled by the General Counsel (GC) and legal department.  More than likely the first place the GC will go is to the IT department asking for its help in producing the requested data (Please note that most global 2000 enterprises are now relatively adept at the process of internal eDiscovery).  However, the GC may not even know to ask about the data (ESI) from the renegade business unit and if they do, the renegade business unit is not going to know how to comply with the request and their IT department is probably not going to help since they are no at all happy that they went to a CSP for IT services in the first place.  Given all of this, the business unit executives or the GC may call the CSP and ask for help.  However, since the CSP doesn't really understand eDiscovery, they aren't going to be much help.  Basically, at this point the entire eDiscvoery process can get pretty ugly.  The GC is under a legal obligation to respond (i.e. Federal Rules of Civil Procedure) under a fairly limited time frame with financial and other sanctions are real possibilities for non-compliance with the request.

THE PERFECT STORMSo, unfortunately, what I have determined to be the current status in the Cloud Service Provider (CSP) market is the perfect storm of neither the CSP or the CSP's client base understanding the need for eDiscovery.  However, there are solutions and there is hope.

THE ROADMAP FOR SUCCESS FOR CSPs
The roadmap to success for the CSPs is actually not that complicated.  CSPs need to get serious about providing eDiscovery and/or information governance as a component or their standard offering.

In a January 8, 2012 blog post titled, "Cloud Computing Architecture and eDiscovey", I stated that "It is within the Platform-as-a-Service (PaaS) layer where eDiscovery services belong.  In fact, this may be a good time to coin the term eDiscovery-as-a-Service (eDaaS)... And, since providing eDaaS as a standard option for any PaaS offering makes so much sense and could provide a first mover and key competitive advance for Cloud Service Providers (CSPs), I predict that we will see several eDaaS offerings before the end of 2012.  And, I also predict that once the eDaaS offerings hit the market, the legacy eDiscovery platform providers will be forced to re-evaluate the value propositions of their non eDaaS offerings in the cloud."

CSPs can contact me at cskamser@ediscoverysolutionsgroup.com for additional insight on which technology vendors currently have or are about to announce eDaaS offerings.

THE ROADMAP FOR SUCCESS FOR CSP CLIENTS
The roadmap to success for the CSP clients is also actually not that complicated.  First of all, enterprise business unit stakeholders need to add eDiscovery and Information Governance to  their list of requirements for the CSPs.  And, they need to seek out and collaborate with their legal and IT departments in regards to a plan to follow when an eDiscovery and/or compliance event occurs.  It just make sense and its not complicated.

Enterprise stakeholders that are contemplating or already working with a CSP can contact me at cskamser@ediscoverysolutionsgroup.com for additional insight on what to expect from their CSP and what best practices to follow when an eDiscovery and/or compliance event occurs.

CONCLUSION
Both the cloud and the eDiscovery / Information Governance trains have left the station and therefore it is no longer an option for either Cloud Service Providers or their clients to ignore the legal requirements and business benefits.  The current practices to address the issues of eDiscovery or Information Governance are ugly at best.  However, the roadmap for success is not that complicated.  And, the rewards for both the CSP and their clients is well worth the investment.

Labels: Cloud Service Providers, CSPs, Early Case Assessment, eDiscovery, Federal Rules of Civil Procedure, FRCP, Legal, Litigation

posted by Charles Skamser @ 10:59 AM 0 Comments

The Dangers of Do-It-Yourself eDiscovery: A Warning to Lawyers and Business Leaders.

The goal of eDiscovery is to acquire relevant electronically stored information (ESI) and admit relevant and useful ESI into evidence. While ESI may be used for other purposes, such depositions or settlement negotiations, if the ESI is not gathered properly, it will not be admissible into evidence. Such a result would waste both the time and cost expended to obtain the ESI. Lawyers should not gather ESI personally and the person who does the collection should be qualified to do such work. Otherwise, the ESI may not be admissible and significant damage may be done to a party’s case.

The Lawyer as a Witness. Lawyers who gather ESI directly face several dilemmas and dangers. One of the largest concerns is the lawyer becoming a witness in the case. American Bar Association Model Rule of Professional Conduct 3.7 prohibits the lawyer from acting as the lawyer in the case and being a necessary witness. Rule 3.7 states:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

The comment 2 to Rule 3.7 states:
The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

In the D.C. Bar in Ethics Opinion No. 228 expanded upon the purpose of this rule:

Beyond the confusion that this combination of roles might create, the rule is justified on at least three other bases: (1) it is necessary to prevent the possibility that, in addressing the jury, the lawyer will appear to vouch for his own credibility; (2) it will prevent the difficult situation that occurs when an opposing counsel must cross-examine a lawyer-adversary and seek to impeach his credibility; and (3) the rule also will prevent the implication that the testifying lawyer is distorting the truth for his/her client’s benefit.

Citing Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1988), citing Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir. 1982); International Electronics v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 (S.D.N.Y. 1981).

Authentication of ESI. Any person who gathers ESI must be able to authenticate and lay a foundation for that ESI. “Authentication” simply means that the person called to admit the ESI must prove that the ESI is what he or she claims it is. That person must be able to lay a foundation for the ESI.

To authenticate the evidence, the person called to testify may need to establish the following, depending upon what is sought to be introduced and the issues raised:

How the ESI was gathered.
Where the ESI was stored.
Who had access to it.
Establish the chain-of-custody
Whether other ESI was also located.
Whether a thorough search was conducted.
Whether the ESI sought to be introduced was altered from its original state.
Other essential details.

Who should be entrusted with the responsibility to gather the ESI? Who should take the witness stand to testify at trial? Certainly, the law firm’s paralegal, secretary and investigator should not conduct the ESI search unless that individual is qualified to establish the above-listed details and will lay the appropriate foundation for introduction of the ESI.

When gathering evidence it is usually not clear whether the evidence will be challenged when the party seeks to introduce it. Thus, the evidence should be gathered in a thoughtful manner that will withstand future challenges.

If ESI is gathered improperly and a party is unable to lay an appropriate foundation to authenticate the ESI, that evidence will not be admitted into evidence. This could be devastating to the case, depending on how critical the ESI was.

Just as experts are hired to provide opinions and establish essential facts, experts should be used to gather ESI. Ideally, the expert will have both technical are needed to search for, gather and introduce ESI.

The person who gathers ESI should also be a good witness. Parties must generally take witnesses as they come. There is very little control over who witnessed particular facts. However, when gathering evidence, parties are given the opportunity to select the witness. So, there should be some assurance that the person who gathers ESI will be a competent witness who can be depended upon. This witness may end up being the critical witness in the case.

Do-It-Yourself eDiscovery Software Tools. Some eDiscovery software tools are marketed directly to lawyers and this is clearly a terrible idea. A lawyer should not gather ESI if he wants to remain the attorney in the case or introduce the ESI into evidence. If the lawyer chooses to gather ESI, he may even be committing malpractice. Do-it-yourself software tools were intended to reduce the cost of eDiscovery and place direct control over the ESI in the hands of lawyers and business leaders. However, they may have unintended consequences.

The lawyer cannot use these tools to gather ESI or she may be disqualified as the lawyer in the case. Only a person qualified to testify at trial should use these tools to gather ESI. Ideally, this person would be an expert.
Thought must be given to who and how ESI should be gathered before it is obtained. A little bit of caution early will be rewarded later.

Labels: ABA, aba model rule 3.7, Authentication, Cerifications, Chain of Custody, eDiscovery, ediscovery competence, eDiscovery Consultants, EDRM, ESI, Legal

posted by Gene Petty @ 5:04 PM 0 Comments

Information Governance and eDiscovery Trends for 2012

2011 has been a transitionary year for information governance and eDiscovery.  Enterprises and governments worldwide have had to come to grips with the sudden acceleration of the use of social media, cloud computing, mobile devices and the resulting explosion in the volume of Electronically Stored Information (ESI).

Some are predicting the end of email in favor ot texting, Twitter and other social media electronic communications.  There are over 100 million users on Twitter each day with 35% utilizing a mobile device.  Facebook now has over 800 million users with 74% outside the United States and 350 million on mobile devices.  There are also over 100 million LinkedIn users worldwide as business social media and the assocication collaboration and communications is now required as a fundamental marketing tool for any serious business player.  Click Here for a more detailed graphic overview of the the growth of social media from the Search Engine Journal.

In addition to social meida, the fundamental infrastructure matured in 2011 to support more serious cloud computing.  Enterprises worldwide began to realize the dramatic cost benefits and potential business benefits of cloud computing.  As a result they gave serious consideration to private cloud implementations and are becoming more comfortable with moving some ESI to public Cloud Service Providers (CSPs) such as Amazon and Rackspace.  Microsoft launched Office360 to enable users to access the Microsoft Office Suite of products as Software-as-a-Service (SaaS) removing the expensive and time consuming software update dance that we all dread.  And, late in 2010, Apple released the iCloud platform for consumer cloud storage and set the stage for literally millions of iPhone, iTouch and Mac users to begin storing their pictures and other personal data in the cloud.

For anyone involved in the world of Information Technology (IT) whether as a user or a technologist, 2011 was definitely an exciting year.  For those of us in the information governance and eDiscovery business, 2011 marked a turning point, both literally and conceptually, for the monitoring, indentification, collection, processing, review and production of electronic evidence.

Is it no longer just an interesting discussion at the local pub to talk about the eventuality of social media as a source of evidence.  There were already close to 1,000 cases in 2011 where the judge issued a written opinion that mentioned social media. Likewise, information governance and eDiscovery in the cloud is longer just an interesting breakout session at tradehows to fill up your 'dance card".  Harvesting ESI from the cloud for the purpose of eDiscovery was a real issue in 2011 and therefore anyone that is serious about eDiscovery from a process, legal and technology standpoint, had better start to pay attention.

Given all of this (and more that I have not even mentioned), 2012 is going to be a banner year for changes in information governance and eDiscovery.  Following are my predictions:

Information Governance and eDiscovery Will Move to the Cloud
As more and more ESI moves to the cloud, the requirement to harvest this ESI "from the cloud" will also continue to grow.  However, there will be a tremendous amount of confusion in regards to exactly what information governance and eDiscovery in the cloud means.  Most, if not all, of the seroius technology vendors will announce that they are cloud ready or work in the cloud.  However, in most cases, this will mean that they are using the same old legacy technology and harvesting data "from the cloud" and processing it the same old way they have been processing ESI and paper for years.  Some of these vendors will have their own data centers and offer up information governance and eDiscovery as as Service.   However, this is nothing new.  The real change that we will witness in 2012 will be virtual technology (not hardware based) that enables users to move information governance and eDiscovery solutions/platforms to the cloud ESI and collects it and processes it in the cloud where it resides.  Physical location will no longer be an issue.  Collection and moving massive amounts of data will no longer be an issue.  The salability of hardward solutions will no longer be an issue.  Staging information governance and eDiscovery respositories in third party service provider data centers will no longer be required.

Enterprises will be able to move virtual information governance and eDiscovery solutions around their networks and private clouds as required to collect and process ESI where it resides. Cloud Service Providers (CSPs) will provide information governance and eDiscovery solutions as part of their standard IaaS and PaaS technology stacks.   Early Case Assessment (ECA) is going to take on a whole new meaning.  This approach is a major paradigm shift in the entire concept of how information governance and eDiscovery should work.  2012 is going to be an exciting year for information governance and eDiscovery in the cloud.

Semantic Search will Go Mainstream
The mystical world of semantic search and natural language processing technology will finally go mainstream in 2012.  New Information governance and eDiscovery technology vendors will emerge that are utilizing this technology as the foundation of their offerings or have seamlessly integrated this technology into their platforms.  Litigators will begin to understand the value of semantic search, courts will begin to accept the results and users will begin to demand its use.  Before the end of 2012, the industry may even recognize the term "Lucene".

Predictive Coding will Go Mainstream
Just like the mystical world of semantic search and natural language processing technology, Predictive Coding will also go mainstream in 2012.  New Information governance and eDiscovery technology vendors will emerge that have seamless integrated this technology into their platforms.  Litigators will begin to understand the value of Predictive Coding, courts will begin to accept the results and users will begin to demand its use.  Offshore coding will become less attractive as Predictive Coding will enable all but the very detailed review and tagging to be done automatically.

Informationn Governance and eDiscovery for Social Media Will be Required
Pushed by the ethical requirements for litigators to understand and utilize eDiscovery for social media and the practical requirements to ensure that all pertinent ESI is being collected and submitted, there will be a  major move by the courts and litigators in 2012 to ensure that social media evidence is being collected and submitted with an appropriate chain of custody and with access to metadata to ensure the validity of the evidence.  And, as a results, legacy ECA vendors will social media file types to their bag of tricks and numerous new Discovery tools for social media will be released in 2012.

End-to-End Information Governance and eDiscovery Solutions
As Early Case Assessemnt (ECA) vendors expand their product lines "right" into document review and case management and as document review platform expand their product lines "left" into ECA, the market is going to have a choice of more end-to-end information governance and eDiscovery solutions.  In addition, we will see the integration of data mapping, legal hold, semantic search, predictive coding, project management, workflow management and case management into these end-to-end solutions.

Litigator Will Become More Technology Savy
Out of both practical necessity and statute ordered requirements, litigators will become more technology savvy in 2012.  The days of the hands-off, don't bother me with the technical details for eDiscovery litigator are quickly coming to a close. 

Information Governance and eDiscovery Pricing will Drop
The move to the cloud along with easily scalable virtual solutions offered up as Software-as-a-Service (SaaS) will enable a dramatic price decrease for information governance and eDiscovery in 2012.

eDiscovery will become a subset of Information Governance
As I have predicted in previous years, as eDiscovery moves to the enterprise, eDiscovery will become a subset of Information Governance in 2012.


In conclusion, 2012 is going to be a very exciting year in information governance and eDiscovery.  Enjoy the rest of 2011 and strap yourself in for a wild ride in 2012.



 

Labels: 2012 Trends, Early Case Assessment, ECA, eDiscovery, FRCP, Legal, Legal Hold, Litigation, Predictive Coding, Project Management, Semantic Search, Worlflow Management

posted by Charles Skamser @ 9:02 AM 0 Comments