The eDiscovery Paradigm Shift

Thursday, August 2, 2012

StoredIQ Reinvents Itself in a Big Data Way

Over the past five (5) years StoredIQ has had more than its fair share of ups and downs. Founded in 2001, venture backed StoredIQ began to establish itself as a "next generation" player in the eDiscovery software market around 2005. However, after being overlooked for a large consolidation move in 2009, StoredIQ seemed to loose its way and couldn't figure out if they were in the Information Governance market competing with Autonomy, IBM and Symantec or in the eDiscovery Early Case Assessment (ECA) market competing with Clearwell Systems.

2010 became a pivotal year as they brought on Phil Myers as the new CEO. With 29 years of experience in the technology industry and having managed three successful start-up companies, Phil made adjustments in personal, mission and strategy and got StoredIQ back in the game.

In 2011, Phil hired Tom Bishop as The new Chief Technology Officer (CTO). Bishop was the former chief technology officer of IBM Tivoli. After Tivoli, Bishop served as CTO of VIEO, Inc., where he was named “Chief Technology Officer of the Year” by InfoWorld magazine vice president and CTO at BMC Software where he was responsible for product vision and direction, including advancing Atrium, the company’s innovative open-architected foundation for Business Service Management solutions. Tom was the right technology leader at the right time to figure out what the market wanted StoredIQ to be and how to get them there technically.

Throughout 2011, StoredIQ executives met with customers, prospects and other industry thought leaders to try and establish their corporate identity. More importantly, they tried to figure out if they were going to build product to compete in the Information Governance or eDiscovery markets. Where they ended up may surprise some of you.

Named by Gartner as a 2012 "Cool Vendor" in Risk Management, Privacy and Compliance, StoredIQ ended up in the middle of "Big Data" with its new mission to enable organizations to actively manage their vast and ever-increasing amounts of unstructured data. So, with a slight twist on the approach and who they are now selling to, StoredIQ actually ended up in both Information Governance and eDiscovery. You see, at the root of any Information Governance or eDiscovery project or process is the ability to identify, collect, index and analyze Big Data. And, that's what StoredIQ is now doing.

I had the pleasure of spending an hour today with Phil Myers, StoredIQ's CEO and Amir Jaibaji, Vice President of Product Management for StoredIQ. They walked me through their "new strategy" and gave me a quick demo of DataIQ, their recently announced data analytics module that provides users with an exceptionally unique visual overview and approach to analyze unstructured data. It’s very visual, fast and provides an abundance of information that you probably didn’t even know that you had about your data. Whether you are an analyst in the Information Technology (IT) department managing storage utilization, a risk manager looking for “open shares” in SharePoint or a General Counsel trying to forecast the cost of pending litigation, DataIQ is just what you have been hoping for. It was impressive to say the least and if it is any indication of where Myers and Bishop have taken StoredIQ, they have not only reinvented themselves, they had established themselves as a formidable player in the Big Data analytics market.

Over the next couple of weeks, I plan to spend more time with StoredIQ and will report on what I find. My expectations are very high.

Labels: Big Data, eDiscovery, Information Governance

Tuesday, July 31, 2012

Professionalism and eDiscovery: Going beyond ethical considerations

During the last few years, there has been much discussion, and even some interesting debates, about ethical eDiscovery issues.  Much focus has been on the topics of duties to preserve records, duties to disclose records, and the state Rules of Professional Conduct.  But, I believe it is not sufficient to consider only the ethical issues involved.  We must also focus on the professionalism of eDiscovery.  Some of these professionalism issues are raised in discovery generally, but others are unique to eDiscovery.

I believe it nearly universally true that the most professional and ethical lawyers are usually the best lawyers.  They have either long ago abandoned, or never acquired a taste for, unprofessional conduct.  They have mastered their craft and find no use for unprofessional behavior.  The same could be said for business leaders; if they are not professional, others would rather do a business deal with someone else.

Attorney Civility Rules
Some states have developed civility rules that are guidelines only.  These rules are not intended to be enforced against lawyer conduct the way that the Rules of Professional Conduct are enforced.  However, these are excellent guidelines for ensuring that lawyers maintain professionalism in eDiscovery.

Included in New York’s Standards of Civility rules are standards are obligations to be “courteous and civil in all professional dealings with other persons.”  This includes a requirement that lawyers “should act in a civil manner regardless of the ill feelings that their clients may have toward others” and “[l]awyers can disagree without being disagreeable.”
The New York Standards of Civility also state that “[a] lawyer should not use any aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging or increasing litigation expenses.”  ESI requests are particularly prone to abuse in this area as it can be used to harass and increase litigation expenses.

Everything I Really Need to Know I Learned In Kindergarten.
In Robert Fulghum’s popular essay about what he learned in kindergarten, he discussed a few basic principles that both lawyers and businesses should abide by.  Included among those are basic professional principles like “share everything,” “play fair,” “don’t hit people,” “clean up your own mess,” “don’t take things that aren’t yours,” “say you’re sorry when you hurt somebody,” and “live a balanced life.”  A healthy dose of these basic ideas would serve the lawyer well in eDiscovery practice.  Although the pressing matter may seem most important at the time, conduct will create a reputation, and an unprofessional reputation is difficult to lose once it is gained. You can play fair while vigorously representing your client.

What Professionalism Should Govern eDiscovery Practice?
In eDiscovery circles, there is much discussion taking place about “proportionality.”  Essentially, this is an issue of reasonableness.  I believe reasonableness is also an issue of professionalism.  Recall that the scope of discovery is what is “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. Proc. 26(b)(1).  By narrowly tailoring requests to what is reasonable will enhance eDiscovery professionalism. eDiscovery costs should never be used as a way to bludgeon the opposing party into submission.   If ESI the scope of a request can be narrowed without harming a client’s case, then it should be narrowed.  The New York Rules of Civility state that “[a] lawyer should avoid discovery that is not necessary to obtain facts or perpetuate testimony or that is designed to place an undue burden or expense on a party.”

While many crack jokes about the professionalism and ethics of lawyers, most lawyers I know take both ethics and professionalism very seriously.  I believe that the best lawyers are not only ethical but highly professional as well.  Some clients act professionally as well, while others may will push for unprofessional practices.  It is the lawyer’s job to reign in his or her client.  While a lawyer must zealously advocate for a client, no case or client is ever worth squandering one’s reputation.  Never allow a client to cause you to do something unethical or unprofessional.

Lawyers involved in eDiscovery should strive for not only meeting the basic Rules of Professional Conduct but also the Rules of Civility.  By doing so, we serve the judicial system, our colleagues and our clients with integrity.

Labels: EDD, eDiscovery, electronic discovery, Electronically Stored Evidence, ESI, Law, lawyers, rules of civility

X1 Discovery and the National White Collar Crime Center Partner to Fight Cybercrime with Cutting Edge Support and Training for Internet and Social Media Investigations

Potential evidence of white collar crimes is becoming more prevalent in social media platforms such as Facebook, Twitter and LinkedIn. In fact, industry analysts indicate that electronic evidence generated from social networks is relevant to just about every criminal and civil legal matter and therefore must be routinely addressed by law enforcement, regulatory agencies, law firms, and corporate risk professionals.

In a recent LexisNexis survey of 1200 law enforcement professionals focusing on the rising prominence of social media evidence, 67 percent of respondents believed social media evidence helps solve crimes more quickly. However, the respondents also pointed to lack of training and technical familiarity as preventing their more widespread access to social media evidence.

X1 Discovery, the leader in software solutions for social media and website evidence search and collection, along with the National White Collar Crime Center (NW3C), an internationally recognized leader in education and support in the prevention and prosecution of high tech crime, have announced a strategic partnership to provide training curriculum and support to local, state and federal law enforcement agencies worldwide, as well as to legal, corporate discovery and risk professionals. The partnership will focus on promoting best practices and advanced techniques for website and social media evidence collection and analysis, based upon the X1 Social Discovery software.

This curriculum will provide best practices and new methods to collect, search, preserve and manage social media evidence from social media networking sites and other websites in a scalable, instantaneous and forensically sound manner. Participants will learn about specific cases involving critical social media data; find out how to collect and index thousands of social media items in minutes; understand and identify key metadata unique to social media; learn how to better authenticate social media evidence in a safe and defensible manner; and more. The X1 Social Discovery software is designed to effectively address social media content from the leading social media networking sites such as Facebook, Twitter and LinkedIn. In addition, it can crawl, capture and instantly search content from any website. Unlike archiving and image capture solutions, X1 Social Discovery provides for a “matter-centric” workflow and defensible chain of custody from search and collection through production in searchable native format, while preserving critical metadata not possible through image capture, printouts, or raw data archival of RSS feeds.

The use of social media as the preferred form of communications for all business both legal and illegal is going to grow at an accelerating rate. Therefore, local, state and federal law enforcement agencies worldwide, as well as to legal and corporate HR and risk professionals are going to have to be prepared to collect and analyze this electronic information. The partnership between the National White Collar Crime Center and X1 Discovery is definitely a ray of hope for those organization that are in desperate need of assistance to deal with this growing problem.

You may view the press release on Reuters announcing this partnership at: http://www.reuters.com/article/2012/07/31/idUS154421+31-Jul-2012+BW20120731

For more information about X1 Discovery, you can visit their website at: www.x1discovery.com. For more information about the National White Collar Crime Center, you can visit: http://www.nw3c.org/

Labels: eDiscovery, facebook, LinkedIn, Social Media, Twitter, White Collar Crime, X1 Discovery

Tuesday, July 24, 2012

2012 Early Case Assessment Buyer's Guide

This past week DCIG published the 2012 Early Case Assessment Buyer's Guide. As the lead analyst on this guide, I will be posting my thoughts and comments about the development of the guide and the results over the next couple of weeks.

Please note that you can register for an August 9, 2012 Webinar where I will talk about how we developed the guide and will also demonstrate the online interactive version of the guide. Click Here to register.

First of all, I wanted to thank Joshua Konkle from DCIG for inviting me to participate in the development of this guide. Joshua and I spent hundreds of hours talking with Early Case Assessment (ECA) users to gather input to develop the survey questions and ranking criteria. We then spend on told hours with the product managers from the vendors covered in the guide, processing the results and writing the report. It was a very educational yet rewarding exercise that I look forward to repeating it every12 months for years to come.

Beyond the ECA platform rankings, there is a lot of very valuable information in this guide in regards to the state of the eDiscovery market. However, I can't comment on all of it at one time,. Therefore, in this initial post, I will talk about some of the thought that went into developing the survey, the ranking criteria and release the list of the ECA tools in order of ranking.

Historically, technology industry reports have taken into consideration vendor size based on revenue and installed based and other criteria that Joshua and I considered very subjective such as feedback from customers. DCIG has historically attempted to be very objective in the development of its other buyers guides. I like to call this the Dragnet approach as they have been steadfast to collect "just the facts". As such, Joshua and I followed a similar philosophy with the 2012 ECA Buyer's Guide. We only wanted to collect verify and report on the facts of what these ECA tools could do and didn't take into consideration what customers thought or how much revenue the vendor generated.

In addition, DCIG has also historically taken a very bold approach of actually ranking the platforms in their guides as opposed to lumping them into conceptual categories that provide little to no value to perspective buyers. Joshua and I followed the same strategy with the 2012 ECA Buyer's Guide. And, although we did place ECA platforms into categories such as Recommended, Excellent, Good and Basic, we did in fact rank the platforms from 1-29. As a side not, the fact that we actually ranked the ECA tools provided for some interesting and frank discussions with many of the vendors that participated. I plan to comment on some of these rankings in later posts. However, as a teaser, potential buyers need to note that just because a particular ECA tool was ranked very low doesn't mean that it wouldn't be a perfect for your specific ECA requirements. That's the beauty of the guide and more specifically the value of the Interactive Buyer's Guide (IBG) as it enables users to analyze all 29 ECA tools based on any of the 300 data point and choose those ECA tools that meet their specific criteria. Please note that I will be talking about the IBG at length in future Blog posts and will also be demonstrating the IBG in multiple webinars over the next month.

Based on our personal experiences with ECA tools and view of where the ECA is going along with discussions with ECA users and a cross section of the ECA tool vendors, Joshua and I placed a heightened focus on ECA tools with the following features delivered as an integrated holistic platform:

Data Mapping
Analysis of enterprise ESI before collections
Real-time collection of enterprise ESI
Integration with enterprise archiving systems
Ability to process social media ESI
Legal Hold
Workflow management
Project management
Next generation search
First Pass Review
Next generation user interface
Information dashboard
SaaS delivery option

Based on how the participating ECA vendors answered the survey and taking into consideration these criteria, Joshua and I ranked the ECA tools for the 2012 ECA Buyer's Guide as follows:

Guidance Software EnCase eDiscovery
Exterro Fusion eDiscovery
ZyLAB eDiscovery Bundle
Orcatec Document Decisioning Suite
GGO DigitalWarRoom
Symantec Clearwell
Autonomy Investigator and Early Case Assessment (ECA)
StoredIQ DiscoveryIQ
NextPoint Discovery Cloud
NUIX Nuix Enterprise Discovery
Kroll Ontrack Ontrack Inview
EMC SourceOne
Kroll Ontrack Verve Review
AccessData Group AD eDiscovery
Rational Retention Central Retention Server (CRS)
Kroll Ontrack Ontrack Advanceview
Digital Reef Advanced ECA 4.0
Equivalent Data NeddleFinder
AccessData Group ECA product (AD ECA)
Orange Legal Technologies OneO
Kroll Ontrack Verve EDA
Recommind Axcelerate ECA and Collection
X1 Discovery X1 Rapid Discovery; X1 Social Discovery
InterLegis, Inc. Discovery360
AccessData Group Summation
kCura Relativity
Venio Systems Venio FPR
Orange Legal Technologies Purple Box
Equivio Equivio Zoom

Please note that users can download a full copy of the 2012 ECA Buyers Guide at: http://www.dcig.com/buyersguides.

A couple of things to keep in mind in regards to this ranking:

These rankings are based upon our view of features that are important in the ECA market which may or may not match your view of what's important.

In many cases the difference in the overall points that separate our rankings over 5 to 10 spots may be as few as 5 to 10 points. And, these points could represent connections to data types or support for specific kinds of search technology (e.g. conceptual search vs. keyword) that may not be important to your organization.

It is also possible that the ECA tools represented in this guide have released major updates that were not reflected in the final rankings. Joshua and I had to set a cut-off date and unfortunately some of these updates occurred after the cut-off. As an example, Kroll Ontrack has made some major enhancements to its ECA product line in the just the last 60 days.

There are some very impressive ECA tools such as Equivio Zoom, Venio FPR, X1 Rapid Discovery and OneO that are ranked lower in the guide (because they are more focused in their approach to ECA) but in fact may be the perfect solution to your specific requirements. As an example, I just recently ranked Equivio Zoom as one of the Top Five eDiscovery Technologies to watch in the second half of 2012.

Our mission with the inaugural Early Case Assessment Buyers’ Guide was to provide users with a valuable and ongoing source of objective and unbiased knowledge to compare the features and functionality of ECA software. We included vendors regardless of size or installed base and we went to great lengths to be as objective as possible in the scoring and ranking of the ECA software reviewed in this Guide. If anyone has any questions and or comments about this guide I would encourage you to contact me or Joshua as we would be more than happy to discuss our approach and the results.

In my next post, I will go into more detail regarding the thoughts behind our criteria and rankings.

Labels: DCIG, Early Case Assessment, ECA, eDiscovery, Joshua L. Konkle

Friday, July 13, 2012

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.

According to a 2010 report by IDC, the amount of information created, captured or replicated has exceeded available storage for the first time since 2007. The size of the digital universe this year will be tenfold what it was just five years earlier. According to this same IDC report, the volume of unstructured ESI is expected to grow at over 60% CAGR (Compounded Annual Growth Rate).

According to Forrester Research and as reported in an article that appeared on Forbes website last week:

The average organization will grow their data by 50 percent in the coming year
Overall corporate data will grow by a staggering 94 percent
Database systems will grow by 97 percent
Server backups for disaster recovery and continuity will expand by 89 percent

Overseeing the expansion of storage space and ensuring that the data is protected has become a minor part of the overall task of Big Data file storage and management. Business stakeholders and the Information Technology (IT) organizations from enterprises of all sizes and across all industries must now face a list of Governance, Risk and Compliance (GRC) regulations to which they have to legally comply or face potentially fatal financial penalties to the enterprise.

The most obvious laws to which they are subject include:

Sarbanes-Oxley (SOX)
Health Insurance Portability and Accountability Act (HIPAA)
Gramm-Leach-Bliley (GLBA)
Federal Information Security Management Act (FISMA)
Consumer Information Protection Laws
Federal Rules of Civil Procedure (FRCP)

Further, the list of new regulations is growing. The passage of The Patient Protection and Affordable Care Act (PPACA) will result in the US Government adding 159 new agencies, programs, and bureaucracies to assist with the compliance of over 12,000 pages of new regulations. Over the past ten years, in response to the threat of international terrorism, the US Department of Homeland Security (DHS) has added hundreds of new regulations. Finally, cyber terrorism, including acts of deliberate, large-scale disruption of enterprise computer networks, is now a reality that all businesses must face.

In the face of this, Big Data file storage and management vendors, along with the associated industry consultants, have developed a list of hardware and software requirements and associated value propositions to help enterprise buyers decide which Big Data file storage and management platforms to purchase.

But before they buy, there are five steps that buyers should take first to ensure they are prepared to meet the governance, risk and compliance obligations brought on by today's Big Data file stores:

Internal Collaboration: File management and Governance, Risk and Compliance (GRC) requirements affect business stakeholders from the boardroom to IT to the manufacturing floor and loading dock to the accounting office. The development of cross functional workgroups and the promotion of internal collaboration between functional experts is the key to successfully identifying, understanding and addressing all of the requirements and issues involved in Big Data file management across the entire enterprise.

Network Architecture Planning: Over the past 25 years, enterprise architectures grew with little or no planning resulting in wasteful redundancy and little or no access to all the enterprise data as may be required to comply with today’s GRC requirements. The advent of the Internet and now cloud computing has brought this decades of poorly planned networks to light resulting in them become more of an enterprise liability than an asset. The time is now for IT to hit the restart button and explore new options such as virtualization, hybrid cloud architectures and the use of cloud service providers (CSPs) that enable them to better leverage, manage and optimize their existing infrastructure..

Security: The introduction and proliferation of portable storage devices, Wireless Internet, mobile computing devices, enterprise Software-as-as-Service (SaaS) applications, cloud storage, blogs and social media such as Facebook, LinkedIn and Twitter, data theft and cyber attacks are a real issue for which many (and arguably most) companies do not have a good answer. Now is the time for IT to take a serious look at their internal file access policies and move as quickly as possible to address any existing shortcomings.

Data Retention Policy Development and Implementation: Sarbanes-Oxley (SOX), the Health Insurance Portability and Accountability Act (HIPAA) and the Federal Rules of Civil Procedure (FRCP) all have very specific data retention guidelines for what types of ESI data an enterprise has to keep and how long to keep it. Enterprises must investigate and document these requirements, development data retention policies and acquire the appropriate software to ensure compliance.

Technology Vendors and Consulting Partners: Business stakeholders and IT management may be overwhelmed with the task of addressing the issues of successfully meeting the GRC obligations of big file storage and management. If this is the case, reach out to the hardware and software vendor community and askhow their solutions support these issues. If required, engage the services of vendor independent consulting partners to act as trusted advisors to assist in the successful navigation of the required cultural transitions and the acquisition of the best technology platforms.

The accelerating increase in the amount of unstructured Electronically Stored Information (ESI) is putting IT organizations on the defensive as they struggle to figure out how to store and manage all of this new information. However, overseeing the expansion of storage space and ensuring that appropriate backups are completed has become a minor part of the overall task of big file storage and management.

Rather business stakeholders and IT staff need to act now to first bring their infrastructure under control so they can get in front of the growing list of GRC regulations to which they are subject. By following the five steps outlined above, enterprises will be in a position so that when they purchase a product, they will have a good grasp of what their true enterprise challenges are and have a high probability of bringing in a product that addresses them.

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

Wednesday, July 11, 2012

BeyondRecognition Ranked as Top Disruptive eDiscovery Technology to Watch in 2012

As a followup to eDSG's list of the Top Five eDiscovery Technologies to Watch in 2012, today's blog post is a more detailed overview of BeyondRecognition, the image processing technology that I ranked as the number one eDiscovery technology to watch in 2012.

This past week, I had the opportunity to spend some time with John Martin, founder of BeyondRecognition ("BR") and long-time document conversion and litigation technology expert. First of all, to put BR's new technology into perspective, not much has changed in Optical Character Recognition (OCR) for over 30 years. And, although once you begin to understand what John has created, you will realize that it is much more than just OCR, OCR is a good place to start the comparison.

OCR software electronically translates scanned images of handwritten, typewritten or printed text into machine-encoded text. This software is used to convert books and documents into electronic files, to computerize record-keeping systems in offices and to publish text onto websites. And, with the accelerating rush to Electronically Stored Information (ESI), it would be easy to think that there just isn't that much paper to convert. However, there are literally trillions of existing documents that will someday need to be converted with billions more yet to be created. The legal, healthcare, mortgage and government markets are currently the prime offenders for creating more paper. In fact, in the five years to 2012, revenue for the Optical Character-Recognition Software industry is expected to increase at an annualized rate of 1.6% to $386.9 million.

And, OCR software developers have not really upgraded OCR software for a very long time. State-of-the-art today is not much different that it was 5-10 years ago. That's why John and BR have the opportunity to disrupt the market with a completely new approach to the challenge of converting non-digital documents to searchable ESI.

BeyondRecognition Technology

BR’s core technology includes image-based (NOT text-based) document clustering, individual glyph (i.e. character) clustering for highly effective cascading text conversion, error correction, and document-type-specific data extraction functionality with accuracy rivaling or exceeding human coding.

Traditional Old Character Recognition (“OCR”) analyzes each glyph or character in a linear fashion, treating each new glyph as a new issue, and optimizes images for conversion purposes at the page level. By contrast, BR clusters similar glyphs prior to trying to convert them to textual characters, optimizing the portion of the images around each glyph, and then converts the glyphs to characters using the most complete glyph from each glyph cluster. BR then provides cascading or persistent error correction in which characters with low confidence conversion scores are edited in words that failed spell checking. Correcting a single word not only corrects all the instances of that sequence of glyphs but corrects other words where the same glyph was used so long as the correction results in a word that is in the word spelling dictionary. This cascading effect permits editors to correct hundreds of thousands of words with a single keystroke or mouse click – and the error correction is persistent because future occurrences of that glyph will also be converted correctly.

Example of Cascading Corrections

In one example from a mortgage loan file project, correcting the word “thc” with one keystroke resulted in correcting 142,121 instances of the word “the” but also had the cascading effect of correcting yet others, resulting in correcting a total of 149,520 instances of incorrectly spelled words.

Here just a few of the words impacted by the cascading effect in that example:

“cducation” corrected to “education” (1209)

“Codc” to “Code” (744)

“qucstion” to “question” (702)

Example of Reconstituting Unreadable Text

Following is an example of how BR is able to optimize individual glyphs and essentially reconstitute a page image of old court opinions using the “best” glyph from individual glyph clusters to produce the most accurate text conversion.

BR’s success in converting previously “unreadable” images on things like decades-old court opinions and computer-output microfiche (“COM”) makes it tempting to pigeon hole BR as just an advanced text recognition company, but the functionality doesn’t stop there.

Potential to Compete with Off-shore Coding

By clustering like documents based on image similarity and then enabling users to rapidly build data extraction rules for each type or class of record, including location-based rules or rules based on non-textual elements, BR can create data extraction fields or metadata elements for each of those document types. The resulting index of specific types of data elements rivals or exceeds human coding. And, that may be the real disruptive feature of BR as it is going to provide a much more accurate and financially compelling alternative to off-shore coding.

Summary and Comments

Not much has changed in Optical Character Recognition (OCR) for over 30 years. However, BeyondRecognition is about to change that with a new image processing technology that is going to be very disruptive to the legal market and many other market that have to convert and code documents. And that why I ranked BeyondRecognition as the number one eDiscovery technology to watch in 2012.

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

Tuesday, July 10, 2012

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

Tuesday, June 26, 2012

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

Wednesday, June 20, 2012

Percieved Value of Technology Assisted Review (TAR)

eDiscovery Solutions Group (eDSG) ran a public poll the week of June 11, 2012 asking respondents to vote on "The Number One Reason for Using Technology Assisted Review (TAR)". The poll was open for 7 days and there were 476 responses.

eDSG marketed this poll to the eDiscovery and legal community through specific and targeted LinkedIn groups such as The Computer Assisted eDiscovery Group, The eDiscovery Solutions Group, The Early Case Assessment Association and via Twitter at @eDiscoveryGroup.

Respondents did not have to identify their position within the eDiscovery market and were able to vote more than once.
The results of the poll are as follows:

Check the Accuracy of Human Review = 14%

Reduce the Document Set for Human Review = 29%

Replace Human Reviewers = 57%

To see a graphic representation of this poll and of all eDSG polls, please go to the eDSG website: http://www.ediscoverysolutionsgroup.com/index-8.html.

Comment and Analysis on Results

Most of the recent interest with Technology Assisted Review (TAR) or Predictive Coding, as it is sometimes called, stems from Da Silva Moore (2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. Feb. 24, 2012)), a decision rendered by Magistrate Judge Andrew Peck and confirmed by U.S. District Judge Andrew Carter (11 Civ. 1279 (ALC)(AJP)). However, TAR is not new and its value and reliability has been studied for years.

As an example, in a 2009 study published in the Journal of the American Society for Information Science and Technology by Roitblat, Kershaw and Oot, titled, "Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review", two TAR systems each agreed with an original human review on about 83% of the documents reviewed. By comparison, two new human teams only agreed on about 73% of the documents.   As a result, the Roitblat, Kershaw and Oot study concluded that TAR was, "no worse than using human review."

Other studies have also addressed the “myth” that human document review is somehow inherently more reliable than could be obtained with TAR (e.g., Grossman & Cormack, 2011; Baron, et al., 2009).    As such, the evidence has been clear for some time that TAR can be very effective.

However, in an industry known for evolving and embracing new technology at the pace of a snail, with a built in prejudice and comfort level for human review,  I am not convinced that the market has agreed upon the best practice for using TAR. As an example, I have witnessed users utilizing TAR to cull down very large data sets with statistical "hit rate" settings in the high 90%, leaving the "important" review work to humans. I have also seen users utilizing TAR to "spot check" the accuracy of human reviewers with the necessary "rework" going back to a different set of human reviewers.   During this early adaptor phase in the evolution of TAR, neither of the uses that I sited for TAR are necessarily wrong. I just believe that the research and evidence already justifies the more productive and financially rewarding use of TAR is to replace human reviewers.

Given all of this, I was actually very pleased to see that 57% of the voters in this eDSG poll agreed that the number one reason for using Technology Assisted Review (TAR) was to replace human reviewers. However, more in line with what I would have thought, 43% of the respondants voted otherwise. I would suspect that these are the mainstream buyers and the laggards (see Crossing the Chasm). Or maybe these were the voters that own and operate offshore document review organizations?

In any case, maybe TAR is going to be the "tipping point" technology that finally drives the legal industry to explore and possibly embrace to the value of technology? Let's hope so.

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

Thursday, June 7, 2012

2012 Study of Global 250 General Counsel on eDiscovery

In its ongoing mission to evaluate and report on the current status and thoughts of the stakeholders from the eDiscovery, Information Governance and Cloud Computing market, eDiscovery Solutions Group (eDSG), conducted a blind survey of the General Counsel from the Global 250 on various aspects of eDiscovery.

We sent out the survey on February 6, 2012 and closed submission on May 31, 2012. During that time, we received 127 responses for a 51% participation rate. Please note that we believe that many of the surveys were filled out and submitted by Associate General Counsel and possibly other staff members.

For a more detailed view of the results, please go to: http://www.ediscoverysolutionsgroup.com/2012GeneralCounselSurveyoneDiscovery.html

Following is an overview of the results of this survey:

Lawsuits per Year

In order to gauge the potential requirement to engage in eDiscovery, eDSG asked how many lawsuits the enterprise was a party to in the last 12 months that required eDiscovery processing such as collections, ECA and Document Review.

Less than 10 = 28%
11 to 25 = 59%
More than 25 = 13%

eDiscovery Collections

eDSG asked if eDiscovery collections were done internally, by a third party forensics group or by outside counsel.

Outside Counsel = 51%
Third Party Forensics Group = 35%
Internal = 13%

I wasn't surprised that 86% of the respondents indicated that they outsourced collections to either a third party forensics group or outside counsel. However, over the next 24 months as eDiscovery moves away from service providers and outside counsel to the enterprise, I predict that internal collection will increase significantly.

Early Case Assessment (ECA)

eDSG asked if Early Case Assessment (ECA) was done internally, by a third party Legal Process Outsourcing (LPO) group or by outside counsel.

Outside Counsel = 51%
LPO = 29%
Internal = 20%

I was surprised that 51% of the respondents indicated the Early Case Assessment (ECA) was done by outside counsel. It is possible that there was some confusion with the term LPO, even though I provided an explanation that LPO included litigation service providers. Over the next 24 months as eDiscovery moves away from LPOs and outside counsel to the enterprise, I predict that internal ECA will increase significantly.

Document Review

eDSG asked if Document Review was done internally, by a third party Legal Process Outsourcing (LPO) group or by outside counsel.

Outside Counsel = 43%
LPO = 43%
Internal = 13%

Top Concerns Over the Next 12 Months

eDSG asked the respondents to indicate the top concerns were over the next 12 months. Please note that respondents were able to check more than one top concern.

Overwhelmed with ESI = 51%
Managing the Cost of eDiscovery = 100%
Understanding the Impact of Social Media = 75%
Understanding and Leveraging New Technology = 59%
Education and Training of Staff = 79%
Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 63%
Collaboration between internal stakeholders = 91%

This question revealed the most significant results. 100% of the respondents indicated that they were concerned about managing the cost of eDiscovery. 91% indicated that they were concerned about collaboration between internal stakeholders. 79% were concerned about education and training of staff and 75% were concerned about understanding the impact of social media. 51% were overwhelmed with ESI.

Top Frustrations Over the Past 12 Months

eDSG asked the respondents to indicate the top frustrations over the past 12 months. Please note that respondents were able to check more than one frustration.

Cost of eDiscovery not declining as rapidly as expected = 95%
Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 75%
Dealing with eDiscovery Software Vendors = 80%
Rapidly Changing Technology = 81%
Increase in the Amount of ESI = 90%
Legacy LPOs Not Providing Adequate Support for eDiscovery Requirements = 75%
Lack of Understanding of Internal eDiscovery Requirements = 65%

Top Pet Peeves Over the Past 12 Months

eDSG asked the respondents to indicate the top pet peeves over the past 12 months. Please note that respondents were able to check more than one pet peeve.

Annoying eDiscovery Vendor sales people = 65%
Outside Counsel's refusal to take responsibility on eDiscovery = 50%
Lack of Support from Information Technology (IT) group = 50%
Anyone that states that litigation in now all about technology = 75%
Outside Counsel and LPOs Knowingly Low Balling Cost Estimates = 85%
LPOs dropping the ball on eDiscovery Projects = 75%
eDiscovery Cost Overruns = 75%
Small Suits that Cost More to Process than Settle = 50%

Top pet peeves is my favorite category as it provides some very interesting insight into what is really going on within these organizations. And, it provides great feedback for LPOs and outside counsel.

85% of the respondents indicated that a top pet peeve was outside counsel and LPOs knowingly "low balling" cost estimates. 75% indicated LPOs dropping the ball on eDiscovery projects, eDiscovery cost overruns and anyone that states litigation is now all about technology. 65% indicated annoying eDiscovery vendor sales people.

Next week I will post the results of Global 250 General Counsel plans for eDiscovery over the next 12 months.

For a more detailed view of the results, please go to: http://www.ediscoverysolutionsgroup.com/2012GeneralCounselSurveyoneDiscovery.html

Labels: Collections, Document Review, Early Case Assessment, eDiscovery, LPO, Outside Counsel

Thursday, May 10, 2012

Do Litigators Need to Understand Predictive Coding Theory?

With the debate over Predictive Coding entering a feverish pitch, there is an interesting thread of discussion beginning to emerge asking whether or not litigators and other users need to understand what I am going to refer to as Predictive Coding Theory.

In a May 4, 2012 Blog titled, "3 Drawbacks To Predictive Coding", Sandra E. Serkes, President and CEO of Valora Technologies writes "What is missing (in regards to the Predictive Coding debate), is a discussion of the specific weaknesses of the overall Predictive Coding technique. She then goes on to indicate that, "Predictive Coding tagging algorithms are not transparent".

To put this into more technical terms, do we need to know what probability theories and related dimension reduction systems are being used as the foundational algorithms for Predictive Coding system to identify relevant documents?

For those of you who are interested in a more detailed overview of Predictive Coding, I suggest that you read a March 25, 2012 Blog post titled, "Predictive Coding Based Legal Methods for Search and Review", Ralph Losey does an excellent job of discussing the basic technical mechanics and some of the underlying theories of Predictive Coding.

Getting back to my question about how much we need to know about Predictive Coding, I am in the process of developing some unique insight. Over the past 30 days, in preparation for adding a Predictive Coding module to the DCIG/eDSG 2012 Early Case Assessment Buyers Guide, I have been interviewing product managers from some of the Predictive Coding vendors and current users of Predictive Coding system to develop a list of criteria for reviewing and ranking the platforms for our buyers guide. One of the questions that I have been asking is what probability theories and related dimension reduction systems are being used as the foundational algorithms for your Predictive Coding platform to identify relevant documents.

So far, I haven't gotten a straight answer as most of the product managers either don't undesrtand the question or want to move the discussion up a couple of layers in technology stack to talk about indexing, semantic search, clustering, relevance ranking, sampling and presentation of results. There is no doubt that these are all very pertinent topics to a perspective buyer of Predictive Coding technology. However, it doesn't answer the question about the transparency of exactly how these systems are identifying relevant documents.

Whether or not litigators need to understand Predictive Coding theory and the underlying probability theories and related dimension reduction systems is debatable. However, I believe that a minimum level of transparency from the Predictive Coding vendors would at least give buyers the opportunity to understand what they are buying and then compare the various offerings.

In 1969, Edgar F. Codd and some of his associates that I have actually had the honor or knowing, first formulated and proposed the theory of relational database. And, although I am not sure that it reach the level of skepticism and resistance to blind adoption that we are currently seeing with Predictive Coding. However, it was new and therefore many did require an explanation of the underlying theories and mathematics. Eventually, the discipline normalized and everyone just assumed that relational databases worked and there was no longer any need to question "how they worked'.

A similar vetting process would be very healthy for Predictive Coding. Check back to my blog in the coming weeks for updates and more information on this topic.

Labels: Clustering, eDiscovery, Litigation, Predictive Coding, Relevance Ranking, Search, Semantic Search

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