e-discovery 2.0

I’ve been doing this long enough that predictions about the future (for good or ill) seem to be a useful convention to talk about emerging trends in the electronic discovery space.  My recent post about the top 5 trends for the upcoming year received way more attention than I would’ve imagined.  So, in attempt to replicate that and do my best Carnac impersonation, here are a few predictions about ALM’s 2011 Legaltech New York:

• “All in one” e-discovery will be the vendor message de jure, even if the beginning phase is first pass review and the last phase is granular review.  The mantra “don’t let the truth get in the way of a good story” (not surprisingly) holds more water at LTNY than in most places.
• For the first time, it will actually take longer to get to your room in the Hilton (never mind the annoying ads) than it would at another hotel across the street.
• At least one person will have an Inception moment and think that they’re having a dream (or perhaps a dream within a dream – if they’re really sedated) about being on the Legaltech show floor, while they’re really still in their hotel room, waiting for their Starbucks Trenta (a whopping 30 ounces) to kick in.
• The b-discovery group will hold a massive all chapter party without any official affiliation with the LTNY conference, showing again that the off-the-floor meetings, parties, sessions, interviews and the like are continuing to eclipse the officially sanctioned events.  As another prime example, check out these stellar Supersessions.
• Members of the European Cockpit Association (yes there really is one) will accidentally show up for day one of the conference, after getting a pamphlet at LaGuardia airport advertising free wine and cheese with a discussion of ECA.
• DTI will announce that it’s stepping up and acquiring FTI (since the acronyms are pretty similar) after a torrent of other purchases in the space, including Unlimited Discovery and Daticon/EED.
• Given his prominence in NYC, I think it’s likely that Donald Trump makes an appearance (probably to look for a lit support professional as an all new Apprentice: the e-discovery edition).

As the old saw goes, “you don’t need to be a weatherman to know which way the wind blows.”  I recently read the recent Duke Law Journal article “Sanction for E-Discovery Violations: By the Numbers.” And, my initial reaction (as someone who tries to read all the electronic discovery cases as they come off the presses) wasn’t one of surprise.  For me, most of the interesting e-discovery cases all seem to involve sanctions as they usually provide lessons about “worst” practices, from which we hopefully can infer “best” or at least “better” practices.

But, after a deeper dive into the piece I was fascinated by the metrics and granular trending analysis.  The article summarized 401 cases involving motions for sanctions related to discovery of electronically stored information (ESI) in federal courts prior to January 1, 2010:

“We analyzed these cases for a variety of factors, including sanctioning court, sanctioning authority, sanctioned party, sanction type, and sanctioned misconduct. Our analysis indicates that although the annual number of e-discovery sanction cases is generally increasing, there has been a significant increase in both motions and awards since 2004. Motions for sanctions have been filed in all types of cases and all types of courts. The sanctions imposed against parties in many cases are severe, including dismissals, adverse jury instructions, and significant monetary awards. Sanctions against counsel, although uncommon, are on the rise as well. All the while, the safe harbor provisions of Rule 37(e) of the Federal Rules of Civil Procedure2 have provided little protection to parties or counsel.”

Full analysis of the entire article isn’t the goal of this blog post.  Instead, I wanted to focus on one particular area that hasn’t received a lot of attention.  In an age where counsel seems particularly obsessed with conducting e-discovery in the cheapest way possible, it seems that many have lost sight of the risks associated with cutting corners.  The Duke article significantly noted that “[c]onsistent with the overall increase in sanction cases,…counsel sanctions for e-discovery have steadily increased since 2004.”  The authors identified various levels of misconduct as the basis for counsel sanctions — “four cases involved negligence, seven cases involved gross negligence, nine cases involved reckless disregard, and ten cases involved intentional conduct or bad faith.”

What should be eye-opening for counsel are the negligent sanctions cases because most will (probably correctly) assume that intentional, bad acts are relatively rare.  Fortunately, the article analyzes the three different categories of sanction-able conduct by counsel that have been deemed grossly negligent.

“First, the failure to advise the client to issue litigation holds or to otherwise take steps to preserve potentially relevant information has been found to be gross negligence. Second, the failure to supervise a client search for responsive information by accepting client representations as to the adequacy of the client’s search, in light of clear information to the contrary, has been held to constitute gross negligence. Finally, the failure to produce a critical document in the possession of counsel for several years has also been held to constitute grossly negligent conduct.”

Sanctions can also be based on the “counsel’s personal execution of discovery tasks or on the counsel’s role in coordinating and overseeing the client’s discovery.” As discussed in Metropolitan Opera, although “counsel need not supervise every step of the document production process and may rely on their clients in some respects, the rule expressly requires counsel’s responses to be made upon reasonable inquiry.”

What’s clear, in my mind at least, is that the standard of care for counsel conducting e-discovery is quickly rising.  In the past, any number of obnoxious behaviors was seemingly tolerated by the bench, including everything ranging from the blissfully ignorant to downright obstreperous conduct.  Now, the bench and the plaintiffs bar have both been through enough wars to know “best” e-discovery practices from its lesser cousins.  For counsel that have been running and gunning, hoping to skate by on a quick and cheap MO, these increasing sanctions awards should be a clarion call to what the future likely holds – and that’s an increase in malpractice insurance premiums.

Plenty has been written on both sides of the preserve-in-place debate.  The preservation duty in e-discovery, though, continues to be a root cause of sanctions and other trouble for litigants when ESI is involved.  In its 7^th Annual Litigation Trends Survey, Fulbright & Jaworski reported that 55% of responding companies still rely on custodians to identify and preserve their own information as the method used most frequently to preserve potentially relevant information in litigation or an investigation.  Also, 68% of respondents thought that the scope of the preservation duty needed further clarification.

One thing that does not seem to require much clarification is that the spoliation, whether inadvertent or intentional, can lead to serious consequences.  Leaving ESI “in the wild” is a gamble at best, and just like Vegas, the odds are stacked against us.

Preserving ESI in place sounds like a great idea at first, especially to the IT team – index all of the ESI in place and then search and collect what is actually needed for review and production – if and when that is required.  It may even seem to make better sense from a budgeting perspective given the fact that while preservation is required in all cases, the degree of production varies widely from case to case.  Frequently overlooked, however, are the many pitfalls that can lead to the inadvertent destruction or failure to produce relevant ESI — all resulting in serious sanctions from the court that the Legal team wants to avoid. These pitfalls include:

• the volatility of storage media and ESI
• disruption to business continuity if ESI is locked down in place (preventing the end user from modifying the files while being preserved) or if users are instructed not to modify existing relevant documents
• the expense of collecting, processing, reviewing, and producing larger datasets because the relevant ESI was not collected using a more targeted method
• overbroad preservation that could lead to irrelevant documents being preserved beyond their useful life or scheduled destruction date and then becoming subject to a preservation obligation in a subsequent matter

The general lack of control over the ESI as it resides on multiple systems and in multiple storage locations complicates preservation and makes it very difficult for large corporations to effectively and defensibly manage litigation holds.

Volatile Media

In a recent opinion out of the Southern District of New York, Judge Frank Maas held that failure to copy relevant ESI from a portable USB flash drive constituted a violation of the duty to preserve.  In Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. 2010), the defendant corporation identified a flash drive that contained relevant ESI, but rather than copying that data safely to a centralized evidence repository, the defendant’s employee chose to hold on to the drive, putting it instead into a desk drawer.  When the files were requested for review and production, the files could not be read from the drive.  The defendant’s employee attempted to repair the drive or recover the ESI contained on it, but those efforts failed.  This is a classic example of just how delicate some storage media is and how the failure to preserve relevant ESI on more reliable and robust media can lead to findings of culpability with respect to sanctions.  The notion of preserve in place can be baffling if you consider that the systems on which counsel or custodians would preserve their relevant ESI were not designed with e-discovery in mind, and many of these systems were designed using a pre-determined matrix that rates storage based on reliability, cost, and speed.  These determinations were based on business requirements, not litigation requirements, and custodians did not, at the time they created relevant ESI, necessarily choose to save those documents or emails on the highest quality storage system in the corporation.  In fact, unstructured data is everywhere – on file servers, on laptops, desktops, external hard drives, and mobile devices.  All of these systems vary in storage quality and redundancy, and they are subject to different risks such as theft, user abuse, carelessness, and even brief cases of amnesia (“What litigation hold?”).

Disruption of Business Continuity

Further complicating the equation are shared data sources where many employees are storing, editing, and collaborating on files in a shared environment.  Portal technologies and even good old file servers (the infamous “public” share) cannot effectively be put on litigation hold using a preserve in place strategy unless all files are immediately made read-only.  This would cause chaos and put an extreme strain on the business if done on a widespread basis.  Users who are not connected to the litigation at all would effectively be shut out, and all users would be less productive without the collaboration tools they have come to rely on.  Some would suggest instructing users to simply create a new copy of a protected document if they need to make changes.  However, this would quickly become burdensome as the universe of potentially relevant documents would grow each day.  Also, because users would not be able to clearly identify which documents were truly responsive, even irrelevant documents would be copied, causing an ongoing information management challenge.

Expense and Overbroad Preservation

As noted above, preserve in place strategies could lead to massive inflation of ESI, and without a more targeted approach, greater volumes of ESI would likely need to be collected, processed, analyzed, and reviewed.  While costs are on all of our minds, expense should not be the greatest of our fears.  With preserve in place invariably comes overbroad preservation.  A records retention policy has no effect if documents are being preserved that are profoundly irrelevant to the litigation, and these very documents may be the relevant documents in the next litigation.  Make no mistake – preservation must be fairly broad given that the Federal notice pleading requirement does not require plaintiffs to provide great insight into their claims.  However, a targeted collection can still be broad while defensibly limiting the scope of preservation.

Collect to Preserve – A Safer Alternative

There is a safer, more defensible solution that combines sound litigation hold procedures (such as written litigation hold notices with a custodian acknowledgement requirement) and suspension of automatic data purging for relevant sources with a targeted collection of potentially relevant ESI. This ensures that:

1. ESI is stored in a secure preservation location away from custodians, users, and the perils of daily business activity, and
2. The scope of preservation is defensibly managed.

Collections can be updated daily to include modified versions of existing documents as well as newly created documents within all identified sources.  Also, and perhaps most importantly, counsel is able to centrally manage the collection effort and thereby manage the preservation effort.  ESI is safe and custodians are not making decisions about what to keep and what to destroy.

Conclusion

As courts continue to offer guidance on what passes for adequate preservation, it’s clear that preserve in place is a gamble at best.  And as we saw in Wilson, the consequences can be disastrous when you lose.  I am sure that we have not seen the last preserve-in-place-gone-wrong story, but I am sure that for my money, I would rather take the safer bet.

Fulbright & Jaworski recently issued its “7^th Annual Litigation Trends Survey Report” and there were several interesting trends worth noting.   Not surprisingly, the general pace of litigation is forecast to increase upwards, relatively unabated, with more than 25% of respondents expecting their companies’ disputes to increase in the next 12 months.

Beyond this trend it’s clear that there’s also groundswell of support for a movement towards more e-discovery proportionality.  While also a big topic at Sedona’s annual conference (and discussed in the recent Moody case), a whopping 79% of US respondents think the “US Rules of Civil Procedure should be modified in some way to limit e-discovery in civil cases.”  While I haven’t heard of any specific proposals for a rules amendment, it’s clear that folks aren’t happy with the status quo, particularly with the increasing discovery burden facing enterprises dealing with unilateral disputes.   This discontent is likely tied to the fact that costs continue to escalate, with the survey indicating that more than 40% of the largest US companies (over $1B in Revenue) plan to “increase their spending on e-discovery in the next 12 months.”

Finally, the survey also focused on an area that’s getting an increasing level of scrutiny.   Fulbright asked “when preserving potentially relevant information in litigation or an investigation, what methods do you use most frequently for preserving electronically stored information?”  Leading the pack, with 55% of vote, was “rely on individual custodians to identify and preserve their own information.”  Custodian based collections have been discussed recently as being under fire in blogs and other recent cases such as Pension Committee and Ford Motor Co. v. Edgewood Properties Inc. The notion is that under- or un-supervised collection methodologies are dangerous because it’s relatively easy to paint the custodians at issue as either being motivated to hide responsive data or relatively unconcerned with compliance.  Nevertheless, it’s clear that (as of now) custodian-based collections are still somewhat “reasonable” given that more than 50% of the populous collects data this way.

On the other side of the spectrum from custodian based ESI collections, there are automated data collection tools and methods that can be considered too.  There are undoubtedly advantages (risk reduction, speed, audit trails, etc.)  to using “automated search software” for the collection of data (like 43% of the respondents did in the Fulbright survey).  Yet, it’s clear this isn’t a zero sum game – meaning there’s currently a place for both methodologies in the legal landscape.  For many organizations it becomes a risk management exercise as summarized in a recent  ARMA article entitled “Is ‘Manual’ Collection of ESI Defensible?”: “Companies may choose the manual collection of ESI to reduce costs, particularly if they have limited levels of litigation or lower risk levels posed by the litigation itself.”

In the end, like so many aspects of electronic discovery, almost any well thought out, well documented methodology *can* be defensible, but the onus is on the preserving/collecting party to buttress whatever poison they pick.  Defaulting into a method without preparation, auditing and follow-through is a recipe for disaster.

It is my great pleasure to welcome Matt Nelson to the E-Discovery 2.0 writing team. Matt is our third licensed attorney and, like Dean Gonsowski and Brandon D’Agostino, will be writing on the legal aspects of electronic discovery. In doing so, he will draw upon his prior experience as a litigation attorney at Ropers, Majeski, Kohn & Bentley, and as a legal technology consultant at Kroll and Summation. He’s a really bright guy with a wry sense of humor, and I’m looking forward to hearing his perspective on the broad range of issues that legal professionals engaged in e-discovery wrestle with every day.

Given the size of our writing team, it’s worth taking this opportunity to say a few words about what you (the reader) can expect from our blog. Our team meets on a monthly basis to discuss topics of interest. In doing so, we hope to speak with one voice on broad range of issues:

• Kurt Leafstand and Venkat Rangan will write about the latest technology trends and their impact on electronic discovery;

• Brandon, Dean, and Matt will cover case law and best practices from both a corporate and law firm perspective; and,

• I will continue to write about the business of electronic discovery, and its development as an industry.

All of us aim to inform in a style that’s engaging and easy to read. We hope you enjoy reading our posts as much as we do writing them.

Yesterday, Clearwell announced a new module for identification and collection, which is available with Version 6 of its e-discovery platform. This sits alongside the existing modules for processing/analysis and review/production, extending Clearwell’s capabilities upstream to a part of the e-discovery process typically done by IT. The new module has already been purchased by GlaxoSmithKline, Nisource, and several other enterprises and government agencies, and the initial response has been incredibly positive. I wanted to say a few words about what led Clearwell to add the Identification and Collection Module, and how it’s different from other solutions.

Over the past few years, I have seen a transformation of the e-discovery software market. Previously, there were no specific people within corporations or government agencies dedicated to e discovery, and no formal budget was allocated to it. As a result, purchase decisions were typically made at the departmental level by legal or information security people who could “find the money” by borrowing from other projects. In stark contrast to that, today most major corporations have people specifically responsible for electronic discovery, and many of them have company-wide initiatives to lower costs by bringing e-discovery in-house. Companies are issuing more and more formal RFPs; performing proof-of-concepts as part of the evaluation process; and creating committees of both legal and IT to make purchase decisions.

Some vendors have sought to play up a “gap” between legal and IT teams when it comes to e-discovery. They manufacture survey information claiming that collaboration and communication between legal and IT is decreasing. Our experience has been exactly the opposite. At corporations like Coca Cola, Home Depot, and hundreds of others, we find close, collaborative relationships between legal teams and the IT professionals dedicated to help them. There’s now a new career path, sometimes called “legal IT” or “e-discovery manager”, for technically savvy IT folks who understand legal’s requirements. I was happy to see at LegalTech this year that legal professionals would often come by our booth with a colleague and say to us, “I brought my IT guy with me because I want him to see this”.

It is precisely because legal and IT are working so closely together that they want a single product to manage all their e-discovery activity. That’s what led us to add the Identification and Collection Module.

Why is offering a single product for everything from identification through production such a big deal? Clearwell’s approach offers two main advantages over alternative solutions. First, like earlier versions of Clearwell, the Identification and Collection Module is very easy to use – so much so that, with IT’s permission, legal could even manage the collection process itself. For example, existing products like Guidance Encase require users to write scripts to create filters for targeted collections; with Clearwell, everything is point-and-click through a simple web UI. That makes identification and collection accessible to non-technical users.

Second, because identification, collection, processing, early case assessment, review and production can now all be done using a single product, Clearwell is able to provide end-to-end reporting through the entire e-discovery life-cycle. For example, Autonomy’s disparate e-discovery products (Introspect, Aungate, etc.) require multiple log-ins, all have different UIs, and different data models. With Clearwell, all of these are the same, giving you complete control over your data – at significantly lower total cost of ownership.

You can sign up for a product demonstration or even evaluate the product for free. Take a look – and leave a comment to let us know what you think.

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Learn More On Ediscovery Litigation.

Last month at the Annual Conference of the International Legal Technology Association (ILTA), we saw an interesting trend – more and more law firms are asking how they can use e-discovery technology to provide greater value for clients. ILTA’s Law2020 initiative identifies the factors driving the shift in law firm priorities from reactive e-discovery at any cost to proactive measures designed to maximize value for clients. Ultimately, the client is going to have to drive innovation, and the client has certainly spoken in 2010.

I wanted to share my thoughts on how I believe the law firm of the future can benefit from promoting electronic discovery expertise to its clients as well as how becoming the trusted advisor in this area can lead to greater sustainability for the firm and lower client attrition rates.  I found the most recent issue of ILTA’s Peer to Peer magazine (“Law2020”, Issue 2 Volume 26, June 2010) fascinating, and the articles echoed much of what I am seeing in the legal marketplace today.  A handful of forward-thinking firms are embracing alternative fee agreements (AFAs) and promoting technology and efficiency to their clients in an attempt to both reduce the cost of the legal services being provided but also improve the overall experience for the client.  In an ancient profession, we are seeing the first widespread demand from clients for better customer service and accountability.  Clients are shopping multiple firms, and the hooks that firms had in many of their clients are disappearing as more and more corporations bring legal services, such as e-discovery, in house.  As one might say, the legal marketplace has become a “buyers’ market.”  As Richard Susskind predicts, we may see the legal services provided by law firms become more of a commodity in the coming decade.

Traditionally, law firms have not provided services beyond traditional representation, and although many law firms now have in house litigation support or legal technology departments, the services they provide from these departments are limited.  These departments often become a cost center rather than a profit center, and clients are demanding greater efficiency – to the point where law firms are seeking outside help from vendors to manage large electronic discovery projects.  This may not change much in the coming years, but there is a wonderful opportunity for law firms to enhance the services they are providing through these departments and become trusted advisors to their clients in the areas of electronic discovery, legal technology, and information management.  Given this opportunity, why are firms allowing outside consultants to collect all of the fees associated with advising their clients in this area?  Perhaps it is due to a lack of true project management expertise within the firm that prevents the firm from providing these services, or perhaps the firm believes that clients will not pay for proactive legal services.  Whatever the reason, firms are allowing a potential revenue opportunity and excellent client relationship opportunity to slip away.

Sustainability

In an interview in Peer to Peer, Darryl Cross said, “[Law Firms] must learn more about their clients and what they need in order to proactively serve them, because our studies show that once you cross the third or fourth practice group there’s almost no risk of the attrition of a client – it plummets to below 10 percent.”  In today’s legal marketplace, firms would do well to find ways to engage the client at multiple levels, and across multiple practice groups or partners.  One way they can do this is by becoming the trusted advisor for all things related to e-discovery – including early case assessments, culling and review techniques, proactive litigation readiness, , and assisting with vendor relations as clients bring more technology and processes in-house.  This will not only build trust with the client, but it will make processes more defensible and reduce the risk of error because everyone involved is familiar with the process.  Because e-discovery touches many practice areas, the opportunity to engage clients on these issues would be numerous.  Firms might even do well to appoint a partner who manages these proactive relationships with clients and seeks out opportunities to better serve the client through an extended offering of value-added services.  Centralizing this function would likely lead to better use of resources and uniformity across engagements, driving down costs.

Strategic Partnerships

Flash forward to 2020 for a moment, and imagine, if you will, a video conference (conference rooms are soooo last decade…) where a law firm’s client relationship partner is explaining to a client that by implementing various technology solutions, the client can achieve dramatically lower costs in litigation, and, after an explanation by the partner, a technology vendor presents a solution custom-tailored for the client. During the presentation, the partner and the client ask questions to ensure that the solution meets all of their needs and will be both defensible and efficient.  In 2020, perhaps all firms will be doing this; in 2010, though, today’s law firm can benefit tremendously by getting involved in this process and advising clients on the multitude of options with regard to technology.  For example, there are many deployment options available for most enterprise-class e-discovery solutions, and the firm can help the client decide which of these options would best suit their needs.  At the end of the day, the client will not seek out technology because they are fed up with paying too much to law firms; they will partner with a law firm to proactively reduce costs.  This type of arrangement and consulting service could even be the catalyst to begin talks about AFAs and really begin learning what the client really wants or needs.  Many times I have found that simply being heard goes a long way toward building long-lasting relationships.

Conclusion

As ILTA’s Law 2020 initiative kicked off at the annual conference last month, we should all be thinking of ways in which we can build more effective relationships with clients and how the law firm of the future will continue to achieve sustainability.  Those of us who are lawyers have an opportunity to become counselors again, and in today’s marketplace, streamlining costs is just as important as minimizing risk.  Those of us who are e-discovery or litigation support practitioners have a unique opportunity to maximize our value and increase our revenue generation through consulting services.  Achieving maximum sustainability and reducing or eliminating client attrition begins with finding ways to build lasting relationships with clients by addressing their broader needs – beyond the matter at hand.  By becoming the trusted advisor in areas that span multiple practice groups, the law firm of the future can stop looking like a commodity and begin to look again like an indispensable resource.

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Learn More On Ediscovery Litigation.

August just wouldn’t be August without lazy days at the beach spent playing in the sand, frolicking in the surf, and immersing yourself in the LTN executive summary of the latest Socha-Gelbmann Electronic Discovery report (in this case, the hot-off-the-presses 2010 edition).

Even with the lure of the big waves beckoning you out into the water, if you follow electronic discovery you likely have a hard time pulling yourself away from the report, and this year is no exception. In fact, this year’s report is especially insightful, as George and Tom seem to have done a particularly impressive job of getting the pulse of not just what’s going on in the law firm and service provider parts of the market, but the enterprise as well.

This is a big change from just a couple of years ago. Go back and review the executive summary from 2008, and you’ll notice a very different feel to the findings. In 2008, much of the talk was around the dynamics of the service provider market, with relatively little discussion of trends related to the e-discovery process and technological innovation in the space. In 2008, it felt like e-discovery was something you had other people do for you: the word “consumer” appeared 12 times in the executive summary. In 2010, two short years later? Just five times. Why? The language may be telling. “Cost” appeared seven times in the 2008 report. In the 2010 report? 16… more than twice as often.

What seems to have happened is that the recession has been something of a refining fire for the electronic discovery market. In order to reduce costs and manage risks, enterprises are behaving much less like consumers and more like real customers with skin (and money) in the game. Not surprisingly, they’ve gotten extremely aggressive about bringing  innovative cost-containing measures to bear on the process. Socha and Gelbmann highlight three:

• More targeted preservation and collection of ESI
• More focused review and analysis of the data
• More effective use of technology to speed up the efforts, improve quality, and reduce costs

This is great news for innovative software companies in the e-discovery space — and their customers. What one would expect to occur in a maturing market is that it would move from a period of rapid innovation to a lower-innovation, consolidation phase. However, that’s not the case here. While there is consolidation occurring,  what’s remarkable about e-discovery right now isn’t really all the acquisition press releases in your twitter feed (mainly from vendors saddled with prior-generation point solutions who are trying to acquire their way toward a complete offering). Rather, it’s how leading enterprises are increasingly seeking, and finding, cutting-edge solutions to solve cost, efficiency, and risk management problems associated with e-discovery that simply weren’t available prior to the meltdown.

As in-house legal and IT e-discovery spending starts to gain steam, look for enterprises purchasing in-house solutions to demand many of the innovations that have been developed over the last couple of years (most of which are highlighted by the Socha-Gelbmann survey):

• Targeted collection: Products better able to strategically target the collection of ESI, rather than attempting to boil the ocean, are more suited to the mindset and approach of cost-conscious enterprises
• Iterative discovery: Products that are able to provide “to the left” functionality while still providing enterprise-class, intuitive processing, analysis, review, and production functionality
• Support for small and big cases: In discussing “small is the new big”, Socha and Gelbmann highlight how “the aggregate of small cases dwarfs the combined large cases.” Successful products must simultaneously handle high numbers of smaller cases while still scaling to the largest matters
• Integrated analytics: Products must bring to bear powerful analytics across all stages of the e-discovery process, focused not just on document review, but also looking at aggregates of data from many different angles and allowing you to see the big picture across the entire case for effective information and cost management

Is the EDD space maturing? Yes, as Socha and Gelbmann rightfully point out. But it’s doing so in surprising, innovative ways that, when it’s all over, may well prove to be a silver lining to the cloud of challenges the industry has faced over the last two years.

Learn More On Electronic Discovery Litigation.

Next week, as most of you know, is the Superbowl of legal technology events.  And, so if this is a newsflash, you’ve probably found this blog by searching for the European Cockpit Association (“ECA”).  If on the other hand you have an unnatural affinity for the other ECA – early case assessment — then you’ve probably been planning to head to this year’s LegalTech show immediately after the last one ended.

For fear of gratuitous self promotion, I will be moderating several panels with e-discovery pundits on the first day. Akin to the upcoming Superbowl, these “Supersessions” will be chockablock with EDD luminaries and it’ll be all I can do to get a word in edgewise.  Below is the schedule. Feel free to pre-register since we expect a packed house.

1:00 – 2:00 pm: The E-Discovery Expert Panel.  This session will discuss best practices in e-discovery. Panelists include:

• Jay Brudz, senior counsel, legal technology at GE;
• Ron Best, director of legal information systems at Munger, Tolles and Olson, LLP, and
• Brian Hill, senior analyst at Forrester Research, Inc.

2:15 – 3:15 pm: Strategies for Transparency and Cooperation in E-Discovery. This session will discuss how to move toward a more cooperative resolution of legal disputes.  Speakers include:

• Sean Gallagher, partner at Hogan & Hartson, LLP and
• Lauren Schwartzreich, associate at Outten and Golden, LLP

3:30 – 4:30 pm: Ask the E-Discovery Doctors. The “doctors” will take questions from the audience and provide their prescriptions for a wide-range of e-discovery topics.

• Craig Ball, attorney and president, Craig D. Ball, P.C.
• Ralph Losey, attorney and co-chair of E-Discovery Practice Group, Akerman Senterfitt,
• George Socha, attorney and president, Socha Consulting, LLC

While it’s probably not fair to pick a favorite session, my sense is that the last one will be the most anarchical, chaotic, and stimulating, assuming that the speakers don’t take the faux Doctor thing too far (yes, they will be in scrubs).

Please come by to get your recommended daily dose of e-discovery insights.

Learn More On Electronic Discovery Litigation.

As the Mark Twain quote goes, there are “lies, damn lies and statistics.”  In this case, however, and regardless of the exact numbers, two recent surveys provide some very interesting directional trending.  The first is Fulbright & Jaworski’s 6^th Annual Litigation Trends Survey.  In addition to covering a range of general and vertically oriented topics, they also focus on ediscovery specifically.  Not surprisingly, reducing e-discovery costs bubbles up to the top of the list as major initiatives for most respondents.  Interestingly though, remediation plans attacking this problem seem to fall into two different camps.  On the one hand, 24% of respondents plan on outsourcing certain e-discovery tasks further leveraging preferred partners.  Conversely, the method that leads the pack (at a whopping 47%) is the corporate initiative of taking components of e-discovery in-house.  Other methods were listed, but most didn’t appear to have critical mass, including: using clawback agreements more, enforcing document retention policies, and negotiating with the opposition over the scope of discovery.

Similarly, Clearwell Systems recently conducted a survey in partnership with analyst firm Enterprise Strategy Group titled Trends in Electronic Discovery – A Market Perspective, which attempted to pinpoint similar pain points and solutions. The questions focused more on 2010 planning and they found a general expectation of more litigation/regulatory inquiries where 53% of the respondents expect the number of lawsuits and regulatory inquiries to increase by at least 20% in 2010, with 13% of respondents planning for an increase of 50 percent or more.  Again, not surprisingly, many plan on attacking this increase in litigation (and the corresponding e-discovery costs) by bring parts of the process in house.  In fact, 48% indicated that they currently have an active project to bring segments of the e-discovery process in-house. And for those that aren’t currently in the building process, 87% of respondents plan to budget for technology that specifically supports the electronic discovery process in 2010.

Given the length of time required for planning, RFPs and e-discovery tool procurement, clearly time is of the essence for companies that want to take advantage of internal solutions in the 2010 time frame.  Failure to get off the dime means that an enterprise is more likely to get caught in the middle of deliberation, versus deployment.

Read more about Legal discovery & Electronic Discovery Litigation