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.

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1. There’s been a lot of buzz (particularly within the vendor community!) about the changes to the Socha-Gelbmann Electronic Discovery Survey. You and George have written about this a bit before, but we’ll try to take a slightly different angle: Beyond concerns about people taking rankings out of context or as an excuse for not doing due diligence, were there specific trends and drivers among end-users of e-discovery products and services that motivated the change?

The most important reason for killing the rankings was that they were too often interpreted by end-users as being a “one size fits all” evaluation of top product and vendors, and we thought this type of decision-making was becoming increasingly dangerous as electronic discovery was increasingly in its visibility and importance. It was similar to a prospective car buyer focusing in on the cars that earned the Car & Driver Car of the Year award. They may not need a BMW 3-Series or a Porsche Boxster if they need something to haul lumber or transport the kids to hockey practice. We also saw the opportunity to deliver something that could be useful in identifying software and service providers that meet a set of requirements based on the EDRM model. The result of the overhaul of the Survey we are currently working on will be the capability to specify requirements, dial up/down weighting of criteria and see which providers fit those parameters. Our objective is to deliver something more useful than the rankings.

2. Your other main project is, of course, the Electronic Discovery Reference Model (EDRM). How did EDRM get started? Was it you and George scribbling on the back of a napkin in a coffee shop?

It wasn’t quite on the back of a napkin, but close – it was an Etch-a-Sketch®! Actually, the idea came out of the 2004 Socha-Gelbmann Electronic Discovery Survey. After the dust settled in the fall of 2004, we took a step back to look at what we learned. It wasn’t difficult to spot the #1 issue concerning consumers and providers: confusion and frustration over the lack of standards in the electronic discovery industry. Many people told us this was the Wild West and something needed to be done. That something was a standards initiative. The reference model approach came from looking at the tremendous value the Open Systems Interconnection Reference Model had on computer communications. Developed in the late 1970s, this model provided a common structure for development of products. We thought a similar approach would work for electronic discovery. We started talking to providers and consumers about this idea and initially thought we may get 15 or so organizations interested… 20 tops. We now list the EDRM alumni of 500+ individuals from 140+ organizations.

3. EDRM will be celebrating its 5th year at the upcoming May meeting in Saint Paul. What’s surprised you most about the first five years of the Project?

The biggest surprise by far is that there was a second year, to say nothing of a fifth year that we are now planning. We started out with the objective of keeping the project to a single year, thinking that having a hard deadline would motivate everyone to complete the project on time. We also knew that placing all content in the public domain would attract interest and participation in this initiative that would help the entire industry.

4. The global recession is having a tremendous impact on the electronic discovery community. Any thoughts on how the landscape will be reshaped coming out of the storm?

Potential influencers keep surfacing, making it difficult to anticipate what is around the corner. Certainly, we have seen and will continue to see consolidation of providers. Acquisitions will likely continue as will dissolutions. It is clear that everyone is tightening the belt. Some corporations and law firms who had begun to expand internal electronic discovery operations will sharply curtail or stop the expansion. Experienced, highly capable people will be out of a job and looking for new opportunities, which means short term turmoil for these folks, but hopefully long term success within well managed organizations. The volume of work doesn’t seem to be ebbing yet, so there is great opportunity for the survivors.

5. You and George Socha are the “Dynamic Duo” of electronic discovery and have been working together for a long time.  Anything you want to reveal about George that might not be generally known?  Hidden talents? Secret ambitions?

Interesting question. George is a man of many talents. One pleasant surprise to me was learning of his expertise in baking. I thought I was good at making good pie crusts, after a dozen years making Thanksgiving pies with my daughters. My crusts have gotten rave reviews from the family. But George is the real expert. His creations are a work of art. When it comes to secret ambitions, I think he would like to assemble a massively parallel computer complex in his home office. He has a good start with a half dozen monitors, several computers, servers, etc. and shows no signs of slowing down.

1) As a lawyer, what advice would you give litigation support professionals to them to help foster more successful and productive litigation support-lawyer relationships?

In June, I wrote “Can You Adapt?” in Law Technology News which explores the changing terrain of EDD support staff. Increasingly, vendors, law firms and corporate counsel are hiring lawyers to handle e-discovery, particularly the review phase. This is creating tremendous opportunities for both attorneys and non-attorney professionals to further develop their careers, and make a whole lot of money (we’re already seeing poaching).

As for advice, it is the same I would give anyone in any job. Think baseball:

• Be a team player: It’s about the team, not the individual. You win and lose as a team. (See, Derek Jeter).
• Play your position well: Make yourself indispensible… be reliable, accurate, prompt, and anticipate needs. Raise your hand when there’s a job nobody wants to do because it’s too complicated or detailed. Extra points for utility players (See, Miguel Cairo).
• Home runs are great, but small ball wins more games. Watch the details. (See, Tampa Bay Rays)
• Take pre-emptive strikes: If you screw up, tell your boss immediately. It is far better for YOU to bring it to your boss than the reverse. Don’t try to hide problems (See, Tanyon Sturtz).
• Bring answers, not problems. Don’t whine. Instead of complaining about problems to your boss, come to her with alternatives. Show initiative and ingenuity. (See, Derek Jeter, Joe Girardi)
• Be low maintenance. ‘Nuf said. Even Manny got traded for being a pain. (See, Jeter, Abreu, Nady, Posada, et al)
• Don’t sit back and wait to be noticed. Ask for promotions. Do your homework, know the market, don’t take the first offer – negotiate. This is particularly important for women, who traditionally haven’t been encouraged to be assertive. (See Joe Torre, Joe Maddon)
• Don’t exaggerate your own importance. (See, Scott Boras, re: B. Molina, Rodriquez, etc.).
• Be loyal, work hard, kind, considerate, passionate, diligent, and work smart (See, Derek Jeter)

2) Socha-Gelbmann abandoning their existing ranking system: Good or bad (or both), and why?

Good.  George Socha and Tom Gelbmann, creators of the Socha/Gelbmann E-Discovery Survey, have said that they are rethinking how they rank, because too many folks were “foolishly” simply relying on their reports rather than doing the necessary due diligence to be sure they were buying the right products. I applaud them and look forward to the next iteration.

3) Helping strengthen the legal technology community is obviously a big passion of yours. Any new issues you are championing?

My latest crusade is the result of recent disheartening news reports that document severe gender gaps in pay for members of our profession; as well as the latest statistics about how painfully difficult it is for minority lawyers to climb partnership ranks, especially in large firms. Even among paralegal ranks there is a gender gap, which is especially ridiculous because that’s an area dominated by women.

There are no easy answers to these problems, but we simply must address them. In our October issue, I challenged every law firm managing partner, vendor CEO and company GC to immediately remedy gender pay gaps in their shops. There is no excuse for those. Solving the issue of obstacles facing career growth for women, minorities, gays and lesbians is a more challenging and nuanced problem, but one that we simply must make a top priority and continue to address. We cannot give up. It is only right and just. I wrote about this in our November issue, and will continue to keep it front and center in LTN.

4) Since it’s Halloween, we’ll ask a scary question. In your view, is e-discovery in its current state a help or a hindrance to the legal system?

The short answer is that it’s both. But e-discovery is here to stay, and the challenge before us is to work to develop systems and protocols that help us attain the real goal – to resolve disputes in a fair, speedy, reasonable manner.

I worry that litigation costs have so escalated that disputes today are being resolved more based on risk management assessments (e.g., the cost of the litigation) than the actual merits of the dispute.

5) Finally, be honest with us: How do you REALLY determine who gets to be in the President’s Corner?

Narrowing it down to the most newsworthy releases of the month, and then finding the one photo among all the finalists that’s actually in focus.

By comparing this year’s results to the 2007 survey, you get a sense for how much has changed in the e-discovery world over the past 12 months:

Top E-Discovery Software Companies

Note: arrows show change to rankings from last year’s Socha-Gelbmann Survey

Autonomy and Clearwell move up to the Top 5, overtaking Attenex and CT Summation which slip back to the second tier. There are also 3 new names ranked 6 through 10 (Epiq, iConect and Symantec) who displace Cataphora, Doculex, ISYS, and Oracle, none of whom even make it into the top 15. In other words, 70% of the rankings have changed since last year.

If a litigation support manager were to focus only on the Top 5 in making her ediscovery software decision, she would have a choice of some very different solutions. Autonomy positions itself as a high-end (expensive) platform for corporations, while Lexis offers a comprehensive toolset for law firms. Guidance and Clearwell are complementary in that both provide best-of-breed solutions for parts of the EDRM model: Guidance is the leader in collection and preservation, while Clearwell is the leader in processing, analysis and review. Finally, FTI takes a services-based approach which centers around RingTail, its hosted review application.

Looking lower down the list, there were some other interesting results, primarily around which companies were NOT ranked. Kazeon made it into the third tier (ranked 11-15) whereas StoredIQ, its main competitor, did not. Nor did Recommind break into the rankings, despite making a major push into e-discovery from knowledge management over the past year. But the most striking absentees are PSS Systems and Exterro, which have pioneered litigation hold management for Fortune 100 companies. I can only guess that they cover too much of niche market to warrant inclusion in an industry-wide report.

Top E-Discovery Service Providers

In contrast to the world of software, e-discovery services saw much less movement in this year’s rankings:

Note: arrows show change to rankings from last year’s Socha-Gelbmann Survey

There was only one change to the top 5: Fios moved up, displacing Guidance which plummeted 10-20 places down to a 16-25 ranking. In addition, there were two new players in the top 10, Epiq and Huron, who edged out Electronic Evidence Discovery and Ernst & Young.

Conclusion

Changes to the software rankings reflect broader changes in the litigation software market. As litigation discovery has moved in-house, corporations have become a major driver of purchase decisions that were previously left to law firms. Many software companies, such as Attenex, have struggled to make this transition, while others, such as Clearwell, have capitalized on it. There has been no such change in the service provider world and, as a result, the rankings are relatively stable.

It will be interesting to see what happens next year. Every other software space is dominated by a small number of players, like Oracle for databases or VMWare for virtualization. If the same is true for top ediscovery, then we can expect many fewer changes to the software rankings in future surveys as the leaders pull away from the pack.

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