Another Round of eDiscovery Technology Enhancements as Vendors Stampede Towards Single Source Solutions

Although it is not the purpose of The eDiscovery Paradigm Shift to track litigation technology vendors and thier most recent releases, it appears that there has been a recent flurry of announcements regarding either the enhancement of early collection or the addition of further Early Case Assessment (ECA) analysis that futher enforce my contention that there is a variable vendor stampede towards single source solutions: eDiscovery Single Source Solutions.

This vendor stampede is great for end users in the short run as it appears that most of the more well know players in the litigation technology market are continuig to offer the missing components to bring their solutions up to the "single source" platform criteria.

However, in the long run as is always the case when market to through a paradigm shift and as we are now witnesses with the last days of NFL training camps, not everyone, not every vendor is going to make the cut. There is going to be consolidation, some complete failures and some near failures. And, in the long run this will be good for a stable mature eDiscovery markte. However, in the short run, even through end-users now have many "good" choices, they better consider other factors in choosing their vendors such as longevity.

In future posts to this Blog, I will offer some suggestions to end users to help them avoid choosing the wrong vendors.

August 2008 Vendor Announcements

Kazeon Extends eDiscovery Collection, Processing and Analysis with Legal Hold and Laptop/Desktop Product

Mountain View, Calif. - August 25, 2008 - Kazeon Systems, Inc., a leading provider of intelligent eDiscovery solutions, today announced the availability of Version 3.1 of its award-winning Information Server IS1200-ECS. The new version introduces a new in-place legal hold, KazHold™ and a new agent-less product for in-place analysis of and collection from laptops/desktops. These new products and functionality are key enhancements in helping organizations streamline their collection, analysis and processing for proactive and reactive eDiscovery processes and ensure that they discover all relevant and necessary information for any litigation related activity. These new capabilities provide extensive defensibility and audit ability for eDiscovery by ensuring no spoliation of data and no modifications to metadata attributes of files and emails, while saving significantly on network bandwidth and cost during the process of collection, processing and analysis. With Version 3.1 of its Information Server IS1200-ECS Kazeon continues to set the standard in addressing the most sophisticated eDiscovery requirements of organizations worldwide. The IS1200-ECS is now being used by hundreds of corporations worldwide, and has more than 50 billion documents and 3000 Terabytes under direct management.

FTI Announces Availability of Attenex® Patterns® 5.0

FTI Consulting, Inc. (NYSE:FCN), the global business advisory firm dedicated to helping organizations protect and enhance their enterprise value, today announced from the ILTA ’08 conference the availability of Attenex Patterns version 5.0. The release of Attenex Patterns 5.0 marks the first product announcement since FTI Consulting acquired Attenex in July 2008. The new eDiscovery software includes a number of significant enhancements to help corporate IT departments administer and enforce a repeatable in-house eDiscovery process.

“Attenex Patterns is the eDiscovery standard for many law firms and corporations because it puts them in the best position to make the best decision on any matter—whether for investigations, legal or compliance needs,” said JR Jesson, senior managing director of FTI Consulting. “Enhancements in Attenex Patterns 5.0 benefit corporate IT teams tasked with developing a defensible and cost-effective eDiscovery process.”

Among the new features within Attenex Patterns 5.0, the software development kit (SDK) enables corporate IT teams to automate eDiscovery processing tasks, reducing unnecessary expenses and the risk of human error. The software’s open APIs help corporate IT teams leverage existing investments by integrating Attenex Patterns with complementary applications and data sources. Additionally, corporate IT teams can develop integrated utilities for custom eDiscovery processing tasks.

The dramatic growth of enterprise data collected during litigation, internal investigations and regulatory inquiries creates new challenges for corporate eDiscovery teams. Attenex Patterns 5.0 helps the in-house team rise to this challenge by delivering several new performance enhancements for managing eDiscovery matters—whether multinational or multi-terabyte. These enhancements include improved data processing and search performance with Asian languages, faster processing speeds for multiple PST and NSF files, as well as faster de-duplication and re-clustering capabilities to help eDiscovery teams more quickly make sense of the data during internal investigations and case assessments.

Businesses have identified Attenex as a top five eDiscovery software provider for the second straight year in the most recent Socha-Gelbmann eDiscovery survey. A longtime market leader in document processing and analytics software for eDiscovery, Attenex Patterns software consists of:

Attenex® Patterns® Workbench™, enterprise-class data and project management software used by leading corporations to implement repeatable in-house eDiscovery processes. More than a culling tool or appliance, in-house eDiscovery teams rely on Workbench’s unprecedented flexibility for filtering collected data, developing case strategy as well as tracking document decisions and work product throughout the process; and Attenex® Patterns® Document Mapper™, the choice of legal and compliance teams that need to quickly and accurately identify relevant information from electronic document collections of any size. An unparalleled visual interface increases review productivity with a multi-dimensional look at the collection’s main concepts and themes. Reviewers can quickly and accurately identify, analyze, review and categorize documents during internal investigations or case assessments.

Attenex Patterns can be deployed on-premise or on-demand through an Attenex Advantage™ service provider, providing flexible deployment options that can be customized to the needs of any environment. This flexibility, combined with new features in version 5.0, further strengthens Attenex Patterns’ position as the premier eDiscovery software for corporations that want to take control of their eDiscovery process.

StoredIQ eDiscovery Appliance 4.6 Increases Functionality Leadership with Expanded Platform Support and Enhanced eDiscovery Features

Austin, TX. August 25, 2008 — StoredIQ, Inc., whose innovative eDiscovery technology revolutionizes the way companies address eDiscovery and litigation readiness, announced today expanded platform integration support and enhanced eDiscovery functionality designed to improve the efficiency of IT and legal teams performing work within the eDiscovery lifecycle.
"StoredIQ automates more of the eDiscovery lifecycle than any other solution," said Steve Killan, Enterprise Server Manager at James Hardie, the world leader in fiber cement technology. "StoredIQ delivers unparalleled functionality in both breadth and depth from information management through the identification, collection, preservation and processing of electronically stored information."

StoredIQ V4.6 includes:

- Expanded Platform Support
- Ability to insert unstructured information as records into the most current version of EMC Documentum and place those items under litigation hold
- Ability to insert, retrieve and manage information within Microsoft Exchange 2007 and SharePoint 2007
- Deeper eDiscovery Capabilities
- Improved query report analytics to assist with "meet-and-confer" sessions
Ability to harvest additional email server objects such as tasks, contacts, calendar items, and notes
- Support of the EDRM XML V1.0 load file format
- Enhanced usability and productivity for pre-collection investigations

Labels: Attenex, Documentum, Early Case Assessment, eCapture, EDRM, FTI, Kazeon, SharePoint, StoredIQ, XML

posted by Charles Skamser @ 10:45 AM 0 Comments

Early Case Assessment (ECA)

With the accelerating increase in the amount of Electronically Stored Information (ESI) and the associated changes to the Federal Rules of Civil Procedure (FRCP) enacted in December of 2006, a proper understanding of preservation requirements and Early Case Assessment (ECA) have become an integral part of the litigation process.


In a perfect world, as soon as defense counsel or anyone within an organization with fiduciary responsibilities believes that there is the potential for litigation or is actually notified of a pending litigation, they have the responsibility to preserve any evidence that may pertain to the matter.

While each state, and some local jurisdictions, has promulgated its own rules, the Federal Rules of Civil Procedure (FRCP) in general and FRCP 26(a) and FRCP 26(b) specifically set forth the guidelines for producing, both spontaneously and upon request relevant and material evidence.

Inherent in the reasoning behind these rules is the requirement that in order to produce a thing, one must first have preserved it. For those parties who are not inclined to appreciate this inherent reasoning, there are other rules (and corresponding sanctions) designed to enhance this understanding.

For discussion of the "safe harbor" provisions of a proposed amendment to FRCP 37, and an analysis of numerous federal sanction request cases as related to the advisability of such amendment, see S. Scheindlin and K. Wangkeo, eDiscovery Sanctions in the 21st Century, 11 Mich. TELECOMM. TECH. L. REV. 71 (2004), http://www.mttlr.org/voleleven/scheindlin.pdf

For those parties that do understand the importance of these requirements or have learned the hard way through sanctions or case losses, the importance of these requirements, Early Case Assessment (ECA) is hopefully become a part the standard operating procedure (SOP) as soon as it is clear that a matter is imminent.

This all being said, Early Case Assessment (ECA) is becoming an actual market with its own consultants, technology, services and beginning of best practices.

Industry Quotes and Comments on Early Case Assessment
Following are several quotes from vendors and comments regarding the importance of ECA and their technology. As it appears that just about every technology vendor in the litigation space is getting into ECA in some way, this list is in no way comprehensive and therefore I would encourage other vendors to send me their thoughts, comments and descriptions of their ECA technologies.


Clearwell
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"Early case assessments represent a critical point in the lifecycle of a case, and is one of the primary reasons why leading enterprises and law firms are selecting solutions like Clearwell," said Kamal Shah, vice president of marketing, Clearwell Systems. "Clearwell plays a pivotal role by helping in-house legal teams and law firms assess risk based on case facts, more accurately estimate e-discovery costs, and develop case strategies much earlier in the e-discovery process."

"We were facing a complicated case and had virtually no time to determine the facts. If we did not have access to Clearwell, the case would have become excessively costly and time consuming, resulting in significantly increased risk," said Steven Perfrement, Esq, partner in the Litigation Practice Group at Holme Roberts & Owen LLP. "We were very impressed with the speed and ease of use of the Clearwell platform. The product was very intuitive and user-friendly, which saved us precious time on the case.

Clearwell's advanced capabilities made it very easy to find the key facts needed to accurately evaluate the case and prepare for early settlement negotiations." Clearwell's early case assessment capabilities provide insight into case facts at the beginning stages of an investigation or litigation, and enables enterprises and their law firms to:

- Determine what happened and identify the "key players."
- How did the incident happen?
- Why did it happen?
- Who was involved?
- When did it happen?
- How does the case posture appear on the merits?
- What is the amount of controversial facts and what it the ultimate exposure?
- Is this a routine matter or a unique situation?
- Can the case be settled quickly, or must we prepare for a protracted battle?
- What is the volume of evidence that is pertinent to the case?
- hat are the possible culling and review strategies that can reduce the cost and time of eDiscovery?
- Are you collecting all the data that you are supposed to be collecting?
- Are there any requirements for foreign language expertise?
- Are there any data quality issues?
- Which search term analysis may be necessary to present and discuss during the "meet and confer."?
- Which terms are most important to the case?
- Are the search terms proposed by requesting party too broad?
- Do you have an argument to limit the scope of discovery request?

Daticon
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Performing an Early Case Assessment (ECA) can provide valuable insight into all of these areas and better prepare the litigation team for the "meet and confer" with the opposition. A recent industry survey indicated that performing an early case assessment resulted in a favorable outcome in 76% of cases - among other benefits.

A well executed ECA assists the litigator and corporate counsel in understanding the following:

- The custodians involved in the matter
- Where their data is located
- How much data the case involves
- If any of the data is inaccessible

Additionally, in some cases ECA can provide visual insight into the data itself. Accordingly, ECA permits an informed risk assessment of the matter so the case can be settled quickly if potential costs rise or the results of the data visualization reveal bad facts.

Managing Legal Risk Using ECA
I also found a very interesting Blog posting on DCIG by Joshua L. Konkle on March 18, 2008 6:00 am titled Managing legal risk using early case assessment to reduce reviewed documents.

And although I don't completely agree with everything that Gregory Buckles says, it provides yet another voice indicating the importance of ECA. The full text of this posting is as follows:

Synopsis Part 1: Legal and business issues IT must know when choosing an early case assessment tool

Synopsis Part 2: Managing legal risk using early case assessment to reduce reviewed documents Electronic data discovery interview - Gregory "Greg" Buckles, eDiscovery business process consultant, Reason-ed, LLC, (Part 2 of 2).

Gregory Buckles is an independent corporate consultant specializing in discovery technology and process solutions. He has 19 years experience in discovery and litigation including police forensics, law firm, vendor, corporate and software development. He is an active participant in the Sedona Conference and EDRM projects.By Joshua Konkle writing for DCIGInc.comhttp://www.dciginc.com/

Joshua Konkle: I've discussed in-house early case assessment (ECA) with a few vendors. A common response is risk associated in the review process. Risk ensues when during the review an attorney needs more data from the source data set for review purposes, thus requiring the company to revisit the ECA system for more data. I was told in most cases it happens 70% of the time. What are you thoughts on that review data risk?

Greg Buckles: I would agree with that 70% of the time reviews require more data from the source, in fact, it is probably higher. The reason the source data needs to be recalled during review is based on a simple fact - "the review phase is the FIRST time a qualified reviewer has looked at the data qualitatively, i.e. custodians, concepts, context etc."Waiting until the data is in a review system to evaluate it is causing companies thousands if not millions annually. Those dollars would be much better spent as pennies, which is the cost of ECA tools in terms of review budgets. The goal's are simple 1) reduce data sets going into review 2) improve data review during collection.Companies can reduce the amount of data being re-requested during review if they evaluated data ahead of review. If a company desires to reduce the amount of money spent on review they must implement on-premise ECA tools and use them to review data.

Joshua Konkle: In your experience, what is happening today? Aren't companies doing early cases assessment through interviews etc?

Greg Buckles: Companies are doing early case assessment. Often times it is a very simple approach. For example, an attorney working for the company will ask an employee for their opinion on the issue and to submit all documents and email related to the cases or issue. Individual perception and memory impact these responses. Then, when an end-user delivers data it is typically only what they have received and what they have filed. However, there are thousands or more emails and documents in their sent items. These little things are unintentionally overlooked by employees.To overcome these challenges companies need tools that analyze the known relevant data. They don't need complicated preservation and legal hold; they just need to start looking at the data earlier in the process. For example, a recent client used the Axis Deduplicator to deduplicate PST files. Since it the reduced the size, they reduced the cost of an ECA tool. In this example, the client used Attenex Snapshot reports to get a dashboard view of the custodians and concepts. The intuitive interfaces enable a focused view to find the critical facts and criteria needed to decide strategy and arm the client for the meet-and-confer.

Joshua Konkle: In your experience, what are the pitfalls that enterprises have yet to encounter bringing eDiscovery inside their firewall?

Greg Buckles: The primary issue is defining which parts of the process to in-source and the thresholds for using outside assistance. The costs and effort associated with an average discovery must be evaluated. Then a company can design a legal risk management system in line with their needs and expected budgets. A gap analysis for both cost and effort will ensure the economics of the system are in the company's best interests. By economics, I mean avoiding spending more money than they are saving. A good start would be to purchase or test ECA tools.

If you would like to communicate with him directly, he can be reached at greg(at)reason-ed.com or by calling Reason-eD, LLC at 1 713 530 3416.

Labels: 26(f), Early Case Assessment, eCapture, eDiscovery, FRCP Rule 26(f), Meet and Confer, Pretrial Conference

posted by Charles Skamser @ 10:28 AM 1 Comments

How Will the Courts React to the Demise of Bates Numbers?

I was very intrigued by a recent article by Tom O'Connor on the law.com legal technology site titled "Bates Stamps' Days May Be Numbered". Mr. O'Connor astutely points out that current eDiscovery platform vendors, in response to the changes in the Federal Rules of Civil Procedure in December of 2006, now enable users to manage native Electronically Stored information (ESI) throughout the entire case lifecycle without every having to convert to an image file (i.e. TIFF or PDF) and adding bates numbers for the purpose of tracking. And, I would suspect that within the next several years these same eDiscovery platforms will be begin to enable the integration, management and open sharing of all responsive and relevant evidence (paper and ESI) not only between opposing parties but also with the courts in a manner that fulfills the requirements of source location, chain of custody, audit/use logs, proof of authenticity, proof that the evidence hasn't been tampered with and a standard digital numbering system that will enable all parties to be able to collaborate and communicate on common pieces of evidence without confusion. This "single source of truth" is probably something akin to the holy grail in concept, probably not that far outside the box from a technical standpoint, but more than likely a real stretch for the courts.

And this last point is the basis for my fascination with Mr. O'Connor's contention that "Bates Stamps Days May be Numbered". I have no doubt that the eDiscovery technologists are close if not already there in regards to retiring Bates Numbers. I just don't see the market and more importantly case law moving fast enough for it happen anytime soon.

As point of reference, following is the full content of Tom O'Connor's article:

One of the most challenging problems facing litigation attorneys is how to work with the massive volume of digital documents produced during the discovery phase of a case.

For years, they have relied on a system of scanning and sequentially numbering individual document pages, extracting the text electronically and producing single-page TIFF files as the standard method. But that process is simply not effective when dealing with terabytes of data.

To address the sheer volume, many vendors are advocating a new way of working with electronic documents that can reduce costs as much as 65 percent by eliminating the need for text extraction and imaging in the processing phase.

Beyond immediate cost savings, this approach also provides cheaper native file production,reducing imaging costs for production sets and saving up to 90 percent of the time needed to process documents. How? By not using Bates numbers on every page.

It also may solve a second problem, because it addresses the preference (under recent federal and state rule changes) for using native files in productions, which cannot be Bates numbered.

Currently, to provide Bates numbering, many vendors generate TIFF images from native files and then Bates number those images. But this process complicates native file review and -- at anywhere from eight to 20 cents per TIFF -- adds considerable cost to the process.

Typically, during processing, data is culled, de-duplicated; metadata and text are extracted; and then a TIFF file is created. An unavoidable consequence is that the relationship of the pages to other pages, or attachments, is broken -- and then must be re-created for the review process.

Page-oriented programs handle this by using a load file to tie everything together from the key of a page number. But most new software use a relational database that stores the data about a document in multiple tables. To load single page TIFFs into a relational database involves a substantial amount of additional and duplicative work in the data load process.

A document-based data model, rather than a page-based approach, eliminates the text extraction and image creation steps from the processing stage and cuts the cost of that process in half. Documents become available in the review platform much faster -- as imaging often accounts for as much as 90 percent of the time to process. This enables early case assessment without any processing, by simply dragging and dropping a native file or a PST straight into the application -- which cannot be achieved with the page-based batch process.

Relational databases allow for one-to-many and many-to-many relationships and support advanced features and functions -- as well as compatibility with external engines for tasks such as de-duping and concept searching.

Applications that support these functions -- such as software from Equivio, Recommind and Vivisimo Inc. -- are all document-based and will not perform in the old page environment.
Programs that use the document model can eliminate batch transfer. This process increases data storage due to the need for data replication in the transfer process and is also prone to a high rate of human error. And elimination of the time that inventory (in this case, electronic data) is stationary will eliminate overall cost as well as reduce production time.

Firms responding to a litigation hold letter can use a tool such as Recommind's Axcelerate to automate first pass review. David Baskin, Recommind's vice president of product management, says this process "improves review accuracy and consistency, which drastically expedites the review process."

"It helps attorneys gain insight into a document collection before review has even begun while insuring that all documents reviewed and the legacy workflow is maintained."
Using the document approach, files can be moved between the first-pass tool and stronger litigation support programs as needs arise, rather than in large batch transfers. This integration creates an easier, faster and more cost-effective e-discovery process.

Another example of this is eCapture from IPRO Tech Inc. It helps users load large sets of documents, files and materials rapidly and in a native workflow, eliminating conversion of native files to TIFF images and extracting the text files.

A modern litigation support program must be able to review native documents that are not just paper equivalents, and directly enable review of any file that is in common use in business today. The future belongs to these new technologies, where native files are processed without the need to convert to TIFF and are identified by their unique hash algorithm.

Attorneys and clients who focus on a document-based system will save time and money and can conduct native file review. In today's world of vast quantities of electronic documents,the days of the Bates stamp are numbered.

Labels: Axcelerate, Bates Numberings, Bates Stamps, eCapture, eDiscovery, Equivio, ESI, Recommind, TIFF, Vivisimo

posted by Charles Skamser @ 8:03 PM 0 Comments