This information management focus comes from a perfect storm of problems that companies are facing right now.  Regulatory compliance is at the forefront of most technology-related decisions, but other factors play a role in deciding how to get a grip on how information flows within an organization.

One important aspect that any information management system must account for is the ability to create a legal hold.  When an employee or company may the subject of litigation, it is important that documents are properly preserved to avoid evidence spoliation.  Having a single appliance that can defensibly handle this task would be of great benefit to any company.  Most solutions we are seeing deployed now are much more patchwork, as companies also worry about things like DLP (data loss prevention) and the security of proprietary information.

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First, let’s start with market size: it appears that the overall ediscovery market grew in 2009, up 10% from 2008.  This is modest growth in good years, but in these lean times it shows that law firms have found value and are actually saving money by using ediscovery services.  Expect to see beat-the-market growth from the vendors who do the best job of culling document sets down, leading to less attorney document review work.

However, another recent trend may be pushing documents out of the hands of ediscovery vendors.  Targeted collection and preservation has made some of these document culling tools less useful, as attorneys gain experience in requesting specific documents during litigation.  The usefulness of the blanket “all documents relating to XYZ” request is outweighed by the cost of culling those documents down and then reviewing them.  This will be especially true as the data deluge continues, with ediscovery document sources becoming more numerous with no end in sight.

This is good news for many law firms engaged in litigation.  Instead of paying contract attorneys to review large swaths of varied documents, you can have those lawyers (and your experts) focus on a smaller set of documents, reducing cost.

Next post (later this week!) we’ll include some information on how the 2010 Socha-Gelbmann Electronic Discovery Survey relates to information management, and we’ll discuss a few other trends that we expect to continue in 2010 in the ediscovery market.

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Clearwell is taking advantage of the law firms who have slowly been migrating to the iPhone as their preferred mobile platform.  While the once-ubiquitous Blackberry continues to be a major player for many reasons (IT support and familiarity being important, not to mention a keyboard with tactile response), development and visibility for iPhone apps remains a distinct advantage for Apple.

Time will tell if this means that Clearwell is likely to develop for that other important mobile OS, Android.  I think Android has a bright future, but the full computing power of the OS has yet to be harnessed in the corporate world.

This new app is also a great marketing tool for Clearwell – it shows that they are responsive to the market, and makes Clearwell data easy to manipulate, display, and ultimately show off to clients.  CW’s web interface looks nice and everything, but this gives a legitimate reason to show off your new iPad!

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AccessData has typically been more focused on the data collection side of the EDRM model.  Their core business is focused on computer forensics and cyber security, but this acquisition allows them to expand a bit more into the ediscovery realm.  It will be interesting to see how they integrate their Forensic Toolkit (FTK) and incident response software into CT Summation’s review and processing platforms.

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This is a bit of a new challenge – while most companies think about the challenge of culling large data sets (email archives, for example), a new emphasis will also need to be placed on the collection of small amounts of data from disperate and uncontrollable environments.  Company XYZ may be able to cull and produce responsive documents within their possession, but who is responsible for the collection of relevant information that may be posted to Facebook?  What if that information is set to “private” – is it discoverable, and how do you go about collecting it?

Just some ediscovery food for thought…

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Many companies are what I call “semi-prepared” for ediscovery work – the tools may be in place but they’ve never all been under the same ediscovery umbrella.  For example, informal internal investigations may be launched if an employee is suspected of embezzlement or theft of IP, but that may result only in the termination of the employee and not in any criminal charges (depending on the severity of the crime, of course).  IT workers may know how to capture packets across the network, but may not follow a certain set of steps that make the process transparent and able to hold up in court.

CompTIA is in a very good position to create and manage an eDiscovery certification shortly.  They released a paper called “Ediscovery Trends and Practices” at the end of 2009, which at the least demonstrates that they recognize the eDiscovery market as a growing market worth paying attention to.  I’d be curious as to see what the requirements are if CompTIA is going to offer a certification – there are quite a few separate and important tasks that could all be classified as ediscovery (data collection, document review, computer forensics, etc.), but I would hope it wouldn’t just be a generic “Ediscovery project manager” type of cert.  I’d personally want the cert to be a bit more technical and to demonstrate a thorough understanding of all necessary steps.

Of course, this is all under the assumption that CompTIA is going to offer Ediscovery certification, and they may never even do that – just speculation on my part!

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The first thing to look at is how many total documents you have, and what your resources are expected to be.  If you have ten million responsive documents and an unlimited budget, then you can afford to pay attorneys to review them all by hand.  But if you only want the documents that are most relevant to your litigation, I’d recommend culling the data set through an advanced search platform.

While the upfront cost for some vendors like Clearwell or Kazeon may be high, the long-term savings are there, especially for large projects.  You don’t need to hire 20 attorneys to sit in a room for months reviewing documents – not only can you reduce the overall volume of responsive documents, but you can also classify them much more efficiently than was previously possible.

After your data set is culled down, you’ll want to look at a review tool that can handle what you want to do with these electronic documents.  If it is a small case, you may wish to review them locally, but if it’s a large case involving multiple law firms, you will need to make sure that the documents can be securely accessed online.

I’ll offer more tips on effective document review sometime next week.

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Most ediscovery review tools are focused on static documents – email, spreadsheets, PDFs.  But in businesses where knowledge and collaboration are critical to success, answering the “which party knew what information, and when” questions will be important to maintaining an aggressive stance when faced with the possibility of litigation.

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The post also points out that Kroll would like their PM’s to have a bachelor’s in finance, not in computer science or any related technical field.

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After all potentially responsive documents are preserved, then any documents that are not relevant to the litigation may be discarded.  This is called culling, and can be done with a number of litigation support software packages.  Most of these document review platforms come with some kind of search functionality, so you can reduce the number of documents quickly by only find docs authored by a certain person, or within a certain date range.

Finally, until the litigation has been resolved, the litigation hold is ongoing, so any documents that are produced that relate to or reference the litigation may be discoverable.  In addition, if any data is found to have been deleted or otherwise altered, sanctions may be imposed on legal counsel for a failure to properly issue a legal hold.

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First of all, any site collection is now able to be targeted by Sharepoint’s Legal Hold functions, not just the Record Center site.

Sharepoint will also now be able to search your site collections for data that could be subject to a legal hold.  Finally, Sharepoint Server 2010 will also be able to export these search results into a separate repository for review and analysis.  No word yet on whether you will be able to export into a document review platform or EDRM XML.

For more info on ediscovery and Sharepoint 2007, check out this link.

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Essentially, during the course of ediscovery in this case, defense counsel decided they were going to produce some privileged ediscovery in a password-protected format.  Plaintiff (not plaintiff’s counsel) then proceeds to crack the password (if you don’t know much about password-cracking, let’s just say that it can be more trivial than one might think), and then informs his attorneys about it, with an email titled, “Password protected files – Unlocked!”

Yeah, that’s going to anger some people, namely opposing counsel, who moved for sanctions.  As it turns out, everyone was at fault.  The plaintiff obviously shouldn’t have been cracking open privileged documents, plaintiff’s counsel had never even read or noticed the email, and defense counsel really shouldn’t have been producing privileged documents anyway.

I suggest you read the whole post – it’s a very good case-based analysis of ediscovery ethics.

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One important thing that happens when parties agree NOT to preserve certain data is that their costs go down.  Instead of worrying about litigation holds on a multitude of complex systems (tape backups, voicemail, email, network traffic, browser history and cache, logs, etc.), the parties agree not to preserve certain things so that the company can continue with day-to-day operations.

I’m not sure this solution is ready to be widely implemented yet, but it’s a good start when it comes to reducing overall legal costs.  Some electronic discovery sources are not going to necessarily find you information pertinent to litigation, or are simply too costly to recreate in a meaningful way (like backup tapes).  This approach is keeping ediscovery sources confined to the realm of documents “kept in the ordinary course of business” and without placing a burden on that business.

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Well, cloud is all going to continue to provide a lot of the benefits. I think that proponents have always spoken up which is a lower TCO, less resources and less management overhead for the companies that utilize the cloud. I think the challenge will always be to ensure that the solutions are of equal and similar capabilities as the on-premise solutions, which I don’t, again, I don’t feel that there’s any reason for there to be any difference. The trend going forward will be this. I think that you see, especially, in this economic climate you have a lot of companies, which are really focusing on their costs.

And because of that, cloud computing makes a lot of sense for them. But once they make that decision, once that sort of let’s say for example, its cost in this case that gives them that impetus to get over the edge and say, okay, we’re going to go cloud. What we’ve seen is once they decide to cloud in any fashion, maybe initially it’s just a storing a little data out there, the application’s still internal but they’re using cloud storage to store the data. It’s actually a very small hump for them to go over and push everything out there.

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The Posse List is reporting that a congressional committee found that Toyota “deliberately withheld relevant electronic records that it was legally required to produce in response to discovery orders in litigation”. This story will surely develop further, but it seems that the electronic evidence was not produced, and it’s doubtful that steps were taken to preserve this ESI.

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The judge also differentiated between negligence and willful misconduct, claiming that only in cases of willful misconduct was the offending party required to prove that their negligence did not harm the opposing party.

This case sets an important precedent for future parties, and possibly lays some groundwork that other judges will be able to follow.  When it comes to ediscovery spoliation and tampering, the courts will not take this issue lightly.

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