e-discovery 2.0

I have written before about the irony of technology companies failing to use technology to improve their own businesses. As with any rule, there is an exception – and in e-discovery, that exception is Cisco.

This will not be a surprise to anyone familiar with Cisco, since the company has a reputation for innovation that extends well beyond networking. In the 1990s, it was quick to embrace the internet, becoming a poster child for how the web can help streamline a company’s operations. Its M&A group has probably done more to power M&A in the tech sector than anyone else, since it was Cisco which disproved the old adage that technology acquisitions do not work.

So it is with e-discovery in general, and E-Discovery 2.0 in particular. The team at Cisco – Neal, Pallab, Mark, Joel and others – are among the most thoughtful, sophisticated corporate legal departments that you will find. They support the large team of inside/outside counsels who represent the interests of Cisco’s global business, and they do it in a way that saves the company money. I have seen them do more with less than companies a fraction of their size. Neal has been talking about the phenomenon that is E-Discovery 2.0 long before me; in fact, he’s one of the people who have educated me on the topic.

Companies like Cisco, Charles Schwab, Qwest, and Wells Fargo, are “canaries in the coalmine”. That’s why, when one of them says something, people listen.

We love investing in technologies and business models that are able to shrink existing markets. If your company can take $5 of revenue from a competitor for every $1 you earn – let’s talk! - First Round Capital

At first glance, this statement may not make much sense, but I think it is actually quite profound. The idea becomes clearer when you think of it from the perspective of a customer. To paraphrase: if you can save a customer $5 by charging them $1, you have a great business. Yes, you will shrink the market, but you will blow your competition out of the water. Consider some examples:

• A small business hungry for leads pays about $1.40 for each call (or unqualified lead) it gets from placing an advertisement in the Yellow Pages, and it has to pay for the ad up front. Compare that to an average cost of 40c per click (or unqualified lead) on Google AdWords – and the 40c is only paid if someone clicks;
• When I took a 2 day trip to Guyana in March, it cost my wife 87c a minute to call my hotel using AT&T. Compare that to 28.6c a minute she could pay for the exact same call using Jajah;
• It must cost over $50 (I’m guessing) to place a personal ad in a newspaper. Compare that to a zero cost for the same ad on Craig’s List. And based on my experience, Craig’s List is more effective (I know someone who met their fiancée on Craig’s List, but have yet to meet anyone for whom a newspaper worked out);
• Many companies doing e-discovery gather data based on custodians, date ranges, and keywords and send it out to service providers like Applied Discovery or Kroll at $2,000 per GB – and then wait weeks for the results. Compare that to paying $200 per GB for a (E-Discovery 2.0) product that enables you to analyze the data in-house – and gives you the results in hours.

All this begs an obvious question: how can someone offer customers the same (or, in many cases, more) value at a fraction of the cost of existing players? That’s where new technology or business models come in. Google and Craig’s List do not spend money on printing and distributing huge volumes of paper; Jajah avoids connection fees and other costs by leveraging VoIP; and, E-Discovery 2.0 products leverage the latest innovations in search, open source, web and storage technologies.

It is ironic that the technology industry is so obsessed by growth, given that its greatest achievement is often shrinking a market.

The other day, I came across the fascinating statistic that over 50% of products returned every year to stores across America have absolutely nothing wrong with them. Apparently, consumers used them for an average of 20 minutes and then gave up, because they were too complicated.

At this point, most customers of traditional enterprise software could be forgiven for thinking: “I wish I could do that.” Enterprise applications are notoriously feature-laden, complicated to use, and difficult to install. They make their users feel stupid, by presenting them with complex pictures that look like amoeba or toolbars with 150 different options. Why does enterprise software seek to punish its customers in this way?

Partly, because customers ask for it. Whether they are buying a dishwasher or an accounting application, people habitually over-estimate their ability to figure out how a complicated product works and, as a result, pay more for features that they never use. Partly, it’s because enterprise software is designed by engineers who think everyone is as technically proficient as they are, and by marketing people who view every additional feature as a new selling point.

By contrast, Web 2.0 applications such as FaceBook, Flickr, StumbleUpon, or Meebo are incredibly easy use. Even an idiot who has never seen these applications before can use them without an instruction manual or a training course. You could say that’s because they are trivially simple applications. But I think it’s primarily because, if they were not so easy to use, people would simply click away and try something else – i.e., they would die.

That to me is the real lesson that Web 2.0 apps can teach enterprise software: make something that is easy to use, easy for someone to install, and easy for them to evaluate. Get people addicted to your application because it’s so good (the average FaceBook user spends 4+ hours a day on the site). No doubt, this is harder to do with enterprise applications because they are inherently more complex. But figure out a way to hide the complexity, packaging all the functionality users need into a design that’s easy to use. This is a key characteristic of e-discovery software applications; it’s the genius of salesforce.com’s CRM application and Apple’s iPod; and, it needs to be a core skill of any company creating enterprise applications today.

In a previous post, I wrote about the forces transforming e-discovery, a phenomenon that has received increasing attention from the press, most recently in this week’s Economist magazine. While everyone agrees that something big has changed, and (generally speaking) on the reasons why, people struggle to put their finger on exactly what e-discovery has become.

That’s why I think the concept of “E-Discovery 2.0” is so helpful. Analogous to Web 2.0, E-Discovery 2.0 is a set of new processes, technologies, and services that enable companies to manage huge volumes of data, lower costs, and meet tight deadlines.

New Processes

When e-discovery meant handing over a few boxes of paper, companies did not need much of a process. But in today’s world, where it involves terabytes of data, teams of reviewers, and precious little time, it is a very different story. To cope with the growing volume and complexity of e-discovery issues, companies have had no choice but to adopt new processes. These include:

• Collect and Preserve: Most companies have now established procedures so that, when the need arises, they can collect all data relevant to a case and ensure that it cannot be changed or deleted.
• Analyze Up Front: When presented with more work than can be done, a company’s only option is to work smarter, not harder. That means analyzing the collected data up front, to cull it down to only those emails and documents directly relevant to the case at hand.
• Collaborate Efficiently: E-Discovery has become a team sport. And whenever you have a team, you need a playbook, or a process, to ensure work is not repeated and that everyone is marching towards the same goal.

New Technologies

If technology created this problem, by making electronic communication so pervasive and voluminous, then it can also solve it. In recent years, several new technologies have arisen that enable companies to store and sift through their data to fulfill e-discovery obligations. The most significant of these trends include:

• From tape to disk: As the cost of disk storage has continued to decline, more and more companies are abandoning tapes and instead keeping their data online. Email archiving software optimizes for storage efficiency, allowing companies to keep hundreds of terabytes of data readily available for e-discovery.
• From search to analysis: Basic keyword search has evolved into sophisticated analysis technology that mines email meta-data for relevance, links messages together into discussion threads, and groups them by topics. These analysis applications allow users to sift through millions of messages in minutes, to rapidly identify, tag, and export relevant data.
• From closed systems to open standards: Until recently, technology providers made no effort to integrate their applications, leaving customers to fend for themselves. But that has started to change. Symantec Enterprise Vault and HP RISS now have open APIs, creating pressure on others to follow suit. George Socha’s Electronic Discovery Reference Model (EDRM), a standards body, has received widespread support, accelerating progress towards creation of an open e-discovery platform.

To anyone working in litigation support, legal, or information security, all this is quite unremarkable. Of course they use technology to address e-discovery. Obviously, there has to be a process. From the company’s perspective, e-discovery has become no different to HR or finance – it is a core competency, part of doing business.

And that, perhaps, is the most remarkable thing about E-Discovery 2.0 – in only a few short years, it has become so widespread and deeply entrenched within the enterprise, that people barely notice it.

The other day, Michael Clark of EDDix sent me a fascinating academic paper (thanks, Michael!) about “information inflation” at its impact on the legal system. I had never really thought of it this way, but there have really only been 3 significant events in the evolution of information:

1. Writing (c. 5,000 years ago): Pre-historic man started to etch his markings on clay tablets, stone, wax, papyrus, bark, cloth, wood, paper, cave walls and anything else that came to hand.
2. Printing (c. 1450): Gutenberg’s movable type printing press enabled mass production of information, contributing to (among other things) the Renaissance and the Scientific Revolution.
3. Digitization (c. late 20th Century): The personal computer, wide area networks, internet, email, have all led to a massive explosion of information in the past 50 years. As the article points out, “close to 100 billion emails are sent daily…In a small business, whereas formerly there was usually 1 four-drawer file cabinet full of paper records, now there is the equivalent of 2,000 four-drawer file cabinets full of such records, all contained in a cubic foot or so in the form of electronically stored information.”

How can the legal profession cope, given that a lawyer’s job is often to synthesize this mind-boggling amount of data? Fortunately, the authors have a solution:

“A family of computer technology employing new types of search methods and techniques beyond use of mere keywords should now be considered for use in litigation….Litigators can no longer depend on manual review alone. It is too time-consuming and expensive – with cost often exceeding the amounts in dispute.”

To illustrate its point, the paper tells the story of the White House and the problem of a billion emails. During the Clinton administration, the White House agreed to a form of electronic record keeping called ARMS (Automated Records Management System). At the end of each administration, these records are handed over to the National Archives and Records Administration (NARA). The table below shows the number of stored emails NARA has, or expects to receive at the end of each administration.

Now assume that, like previous administrations, the Next President’s administration is subject to a lawsuit that requires e-discovery. The paper calculates:

“Without employing any automated computer process to generate potentially responsive documents, the review effort for this litigation would take 100 people, working 10 hours a day, 7 days a week, 52 weeks a year, over 54 years to complete. And the cost of such a review, at an assumed billing rate of $100/hour, would be $2 billion. Even, however, if present day search methods are used to initially reduce the email universe to 1% of its size (i.e., 10 million documents out of 1 billion), the case would still cost $20 million for a first pass review conducted by 100 people over 28 weeks, without accounting for any additional privilege review.”

This is a great example of why companies and government agencies are adopting e-discovery 2.0 technologies that go far beyond keyword search. In the face of information inflation, what choice do they have?