e-discovery 2.0

Earlier this month, Gartner published its third annual MarketScope For E-Discovery Product Vendors. Written by Debra Logan, Whit Andrews, and John Bace, the report is an excellent survey of this rapidly evolving market. It is also a useful buyer’s guide for anyone considering a purchase of electronic discovery software, since it analyzes and rates various e-discovery players. You can buy the report at Gartner’s site, or access a complimentary copy here.

The report covers 18 e-discovery software vendors. Missing from the report are e-discovery hosted/software-as-a-service (SaaS) providers and small e-discovery software vendors. Gartner believes the market is maturing and only larger companies are viable in the long run. So it increased the minimum annual revenue requirement for inclusion in the report to $15 million.

My guess is that next year Gartner will discontinue the MarketScope and move instead to a Magic Quadrant for e-discovery software. Doing so would be very helpful for the entire industry. Now that George Socha and Tom Gelbmann no longer publish their annual rankings, Gartner’s report is the only way for people to get a sense for how different products compare against each other. That alone makes it required reading for anyone considering an investment in e-discovery software.

We’ve devoted a number of posts to the topic of ECA, ranging from a quest to define the acronym, all the way to the cost savings benefits of the ECA approach.  And, while there seems to be relative unanimity around the beneficial aspects of ECA, there still seem to be a number of myths and misconceptions.  So, ala the Mythbusters, we’ll run these myths through the gauntlet to see which survive scrutiny.

Myth #1: ECA Is Only Valuable if Performed “Early”

Certainly, ECA is best leveraged and will be most valuable when performed at the outset of litigation.  As has been stated before, it has value on two primary fronts, the first being the ability to scope electronic discovery (both in terms of cost and timelines).  The next is the more traditional value proposition where ECA is used to get an understanding of the case facts to enable the strategic decision making process.

As such, there are scenarios where an ECA methodology would still generate value even if performed “later” in the mater.  For instance, with bifurcated, class action litigation initial discovery about the class may occur months before discovery on the merits.  In this instance using a later ECA approach would still make sense since discovery about the case facts may not have been possible earlier on.  Similarly, “late” ECA may still hold value when new parties or claims are added to an existing lawsuit, or when there’s a substantial change in case direction, data, or custodians.

Myth #2: ECA Is Only Performed With Technology

Sure, enterprise grade ECA products  are an important part of the mix, but the products won’t perform an ECA by themselves.  There’s just too much subjective decision making involved in the assessment process.   Therefore, the right people are critically important — not only in terms of experience performing this analytical work, but also in their ability to capably testify about the underlying decision making process.  It’s also important to be able to follow a repeatable and defensible processes to show that the “recipe” used was aligned with industry best practices and wasn’t ginned up for a particular engagement.

Myth #3: ECA Only Works With Large ESI Volumes

Yes, ECA methodologies makes a lot of sense for large, bet-the-company matters because even modest savings when processing, analyzing and reviewing terabytes will easily approach six to seven figures.  However, smaller matters will still benefit from better budgetary insights that facilitate informed matter management.  And, in a way there’s almost more benefit from being able to quickly evaluate (fight/settle) smaller suits since the transactional costs are so high relative to the amount in controversy.  In both scenarios it’s important to view objective case data to prepare for meet & confer conferences.

Myth #4: Clients Don’t Want To Pay for ECAs

Many end clients (corporate counsel typically) have a similar litigation mindset:  i.e., the desire to avoid costs for as long as possible.  While avoiding early costs makes some sense on its face, the fact is that spending a small amount of money early on (for budgetary and case assessment purposes) will in most instances reduce the overall litigation budget.  It’s the classic, “you can pay me now, or pay me later” situation.

Counsel must understand that while some costs are incurred early in the process the benefits are crystal clear: i.e., determining customized case strategies early in the matter to decide whether to fight or settle.  Similarly, corporate clients must recognize that the benefits outweigh the costs and require their litigation counsel to include this process in every significant matter.

This illustration highlights how an initial ECA investment actually pays for itself over the life of the litigation.

Myth #5: ECAs Begin when the Complaint is Filed

Many newbie ECA practitioners may think that the timing for an ECA approach would start when the complaint is filed.  And, while this isn’t patently ridiculous, I think the better approach is to begin the clock at the time litigation becomes “reasonably likely” — versus later dates such as when the complaint is filed or when discovery is propounded.  This trigger is also the same for trigger preservation obligations and a host of interrelated activities such as ESI “identification,” which makes the matter kick-off more synchronized.

For more information about ECA, watch a recording of our recent webinar — E-Discovery MythBusters: Debunking Common Myths About Early Case Assessment.

A couple of weeks back, I attended a now-infamous meeting at Sequoia Capital, which has since been widely covered in the press and the blogosphere. For those unfamiliar with Sequoia, it is the world’s leading venture capital firm, with a string of early-stage investments in companies such as Apple, Cisco, and Google as well as, more recently, AdMob, Clearwell, and Loopt. The presentation says it more colorfully, but Sequoia’s point is simple: “We are at the beginning of a global economic slowdown that could last for years, and the cost of capital has sky-rocketed. In light of that, everyone needs to re-evaluate their growth plans and, if necessary, reduce expenses immediately.”

That message sent a chill through Silicon Valley. In the days that followed the meeting, several start-up companies announced layoffs, closely followed by larger companies like eBay and Yahoo, all citing economic conditions in the wake of the financial crisis. So naturally, the meeting and its aftermath got me thinking about what impact our current economic malaise will have upon the e-discovery industry.

If history is any guide, economic downturns lead to more litigation, and more litigation leads to more e-discovery. That’s why e-discovery has often proven to be a counter-cyclical business, and that certainly appears to be the case again now. While traditional technology companies like SAP and Seagate missed their numbers last quarter, the top e-discovery software companies posted strong results. And many lawyers are expecting even better times ahead, if last week’s ACC show or the recent Fulbright & Jaworski 2008 Litigation Trends Survey are any indicator. In particular, the survey results were quite striking, with more than one-third of companies surveyed predicting more lawsuits, and a quarter forecasting more regulatory inquiries. This makes sense in light of the fact that what we are facing is no “normal” recession; rather, it’s a downturn triggered by the sudden and widespread collapse of the banking sector which has left many people wanting legal redress for their grievances.

But, more important than any short-term increase in litigation, I think the real significance of the current crisis is that it will spur a sustained, long-term increase in demand for e-discovery solutions. As revenue growth slows, companies will focus on reducing costs to maintain profit growth. That will prompt many of them to examine the vast amounts of money being spent on e-discovery and accelerate the pace at which they use technology to cut costs by bringing elements of e-discovery in-house. Law firms and litigation support service providers will similarly find their invoices attract greater scrutiny. Their old ways of taking terabytes of data and dumping it into a linear review platform without first removing irrelevant or unresponsive data, will look increasingly profligate.

To learn more about how best to prepare for the coming wave of litigation, and associated increase in e-discovery, I strongly recommend next week’s webinar with Ron Best from Munger, Tolles, and Olson (MTO). Ron is a real innovator in this area, with extensive experience dealing with multi-party, complex litigation. He is also full of practical advice about how best to reign in e-discovery costs and manage with limited resources – skills that will be increasingly important in the coming months.

No industry is an island and, to some extent, we all get impacted by the same economic forces. But the unique thing about the e-discovery industry is that the worst of times can often be the best of times. Consider it a silver lining to the very large cloud hanging over our economy.

Many readers write in with questions, which we mostly answer offline. But when there’s one of general interest (and the sender consents), we will post both question and response to the blog and invite others to chime in.

I received one such question from Saurabh on Friday:

Subject: Ediscovery: searching/querying incentives

Hi Aaref,

I am regular reader of your blog. My question is what incentives do the defense litigation consultants/counsels have to employ sophisticated search techniques on e-discoverable documents?

Normally plaintiff and defense counsels agree on the search-terms based on which the defendant will produce documents after checking for privilege documents. In this the defendant is supposed to act in good faith with the searches. But in this the defendant has every incentive to use the most rudimentary search capability and still act in good faith.

But on the contrary we see that in the ediscovery domain the demand for sophisticated search techniques is rising everyday.

Regards,
Saurabh

This is a good question as it addresses two common misperceptions: first, that the process by which opposing counsel agree upon keywords is straight-forward; and second, that defense counsel is often well served by doing rudimentary keyword searches, reviewing for privilege, and handing over the results to the plaintiff. Let’s take each of these in turn.

Keywords are typically negotiated at the “meet-and-confer” conference which, under Rule 16(b) of the FRCP, must occur within the first 99 days of the case. In many cases, This is not a collaborative process as some parties will try to skew the list of keywords in its favor. As a result, defense attorneys spend a considerable amount of time preparing for the keyword negotiation by analyzing their clients’ email and documents to formulate their case strategies. The best way of performing this kind of early case analysis is by employing sophisticated e-discovery software.

Whatever keywords are agreed upon, defense counsel is responsible for much more than just performing privilege review prior to handing over the information to plaintiffs. As one GC at a Fortune 100 company told me, “I want to be responsive, but not overly inclusive”. In other words, he wants to hand over whatever he has to, but not one document more. This process of culling data down to precisely the responsive data set is a complex, iterative process. Given today’s massive data volumes, the only way to do it is to employ e-discovery technology to search, filter, cull, tag, review, and export the relevant information.

So to answer Saurabh’s question, defense counsel has a strong incentive to use e-discovery software to perform early case analyses, and cull data down to the specific set of responsive documents. The more adept they are at doing this, the better they can represent their clients or companies. That’s why, as Saurabh observes, demand for e-discovery software is rising everyday.

HP announced today that it has signed an agreement with Clearwell to resell the Clearwell E-Discovery Platform. The two companies have been partners for some time and have many joint customers such as Constellation Energy, Del Monte, and Universal Music. But, under this new agreement, thousands of HP sales people will now be compensated for selling Clearwell, giving them a powerful incentive to introduce their customer base to Clearwell’s e-discovery solution.

To my knowledge, this is the first time that a major archiving vendor has agreed to resell a partner’s e-discovery solution, and it raises a couple of interesting questions: why did HP do this deal? And, what does it mean for HP customers?

Ask anyone who tracks the email archiving market, and they will tell you that e-discovery is a major driver of archive purchases. As Gartner’s Carolyn DiCenzo observes: “Legal discovery is being mentioned by almost every client evaluating an e-mail archiving solution.” That’s because whenever a company has litigation, regulatory inquiries or internal investigations, IT is required to provide relevant electronic information to legal or information security. Far better to have it in one repository than spread out on user desktops, email servers, and file shares. So, CIOs are partnering with General Counsels to deploy email archives, much as they did – in years gone by – with the VP of Sales to implement CRM systems.

The problem is that, when you look at archives as e-discovery solutions, they only solve 50% of the pain. In EDRM terms, archives are a very effective solution for collection and preservation, but awful for processing, analysis, and review. They provide a bulletproof way to capture and preserve every message, but do not make it easy to perform early case analyses and cull down data to the very small set of documents relevant to the case at hand.

That’s why enterprise customers find it so compelling to pair up an archive, such as HP’s Integrated Archive Platform, with an e-discovery solution, such as the Clearwell E-Discovery Platform. So to summarize, HP is doing this deal because it’s the best way to provide HP customers with an end-to-end solution for e-discovery. The two products integrate out-of-the-box, have been proven to work together at several large enterprises, and can be purchased from a single supplier (HP). That’s a much easier, lower risk decision for many enterprises than purchasing separate point solutions and cobbling them together.

Very few companies have as much mindshare with corporate CIOs as HP. It can only be good news for the e-discovery market as a whole to have one the largest technology companies in the world out there educating its customers on the value of lowering the costs and risks of e-discovery.

UPDATE: Since writing this post, I have received additional information suggesting that this deal was NOT for Zantaz’s Desktop Legal Hold product, as previously reported. Please see comments section for full details.

I must confess, I was skeptical when ZANTAZ announced its new desktop legal hold solution without a single reference customer. But events have proved me wrong:

On January 3^rd, Autonomy (ZANTAZ’s parent company) let slip in a UK publication that that “an unnamed major international bank” had purchased ZANTAZ’s “compliance and regulatory solutions” for an eye-popping $70 million. Later reports confirmed the number, and provided more detail: Citigroup will pay ZANTAZ $70 million over 4 years for Desktop Legal Hold.

Citigroup is an existing ZANTAZ customer with a lot of data in Digital Safe. My guess is that the deal covered much more than just Desktop Legal Hold, and that many of the scheduled payments are tied to performance milestones. But regardless, this is a spectacular transaction (perhaps the largest ever e-discovery software deal?) and I offer the ZANTAZ team my hearty congratulations.

Beyond being good news for ZANTAZ, the deal has broader significance in two regards:

1. It confirms that the sub-prime mortgage crisis is driving demand for e-discovery software. That syncs with my own experience with several of our financial services customers;
   
2. It may spur other archiving vendors to add desktop legal hold solutions to their product portfolios, so that they are not at a competitive disadvantage to ZANTAZ.

This deal will also accelerate Autonomy’s increasing focus on e-discovery. In its core market of enterprise search, Autonomy is caught between a “rock” (Google) and a hard place (Microsoft, which announced the acquisition of Autonomy’s larger competitor, FAST). Moving towards e-discovery is the obvious way Autonomy can avoid getting crushed by the giants. I expect more news about Aungate is coming soon.

Yesterday’s post about the top e-discovery software vendors prompted a couple of interesting comments. George Socha posted a response here, disagreeing with my conclusions; and someone else (“top8”, whoever that is) asked whether one should “always listen to the top 5-10 songs on the list…[or] use the top 5 software products, regardless of one’s situation.”

To clarify, I whole-heartedly agree with George that there is no such thing as a “best” e-discovery service provider – as George says, it really does depend on your situation and I can think of many cases where a smaller, less well-known firm is a better choice than a national brand.

But e-discovery software is different for 2 reasons. First, and most importantly, in software there are increasing returns to scale which do not exist for service providers. The more companies that use a particular software product, the better that product becomes. Speaking from personal experience, when you have a large number of demanding customers, they force you to make your product better – and give you the money to do it. That’s why most technology markets are incredibly concentrated: everything from databases (Oracle) to search engines (Google) have a single dominant player. We are still in the early days of the e-discovery software market, but ultimately I expect it will follow suit and consolidate around a very small number of players.

The second difference between e-discovery software and service providers is that enterprises cannot change their software vendors as easily as they can change their service providers. Once software is deployed behind the firewall, it is fiendishly difficult to get it out, requiring enterprises to pick a single product for all cases. By contrast, it is easy to change service providers, so enterprises can pick the most relevant expertise on a case-by-case basis.

To answer the question posed by “top8”, I am not suggesting that everyone should only read Harry Potter, watch American Idol, and (Heaven forbid!) listen to Britney Spears. Those are matters of personal taste where diversity is what makes for a rich, vibrant society. But there are very good reasons why so many corporations rely on Veritas for backup software, Oracle for databases, Symantec/McAfee for anti-virus, IBM for developer tools, and so on. In software, the best products only get better. That’s why, 5 years from now, the list of top e-discovery software vendors will be even shorter.

There are two independent analyst reports identifying the top e-discovery software vendors.

The first, published in June 2007, is the Socha-Gelbmann Annual Electronic Discovery Survey. The authors, George Socha and Tom Gelbmann, probably know more about e-discovery than anyone else you are likely to meet. As someone who has filled out their 178-page survey, I can tell you it is excruciating in its detail and incredibly rigorous. According to the report, George and Tom contacted nearly 1,000 individuals and collected detailed data from 115 organizations.

The second analyst report is Gartner’s MarketScope, which is published today (December 2007). Its author, Debra Logan, is fast emerging as one of the leading lights of e-discovery and has great instincts about the market. For her report, Debra tells me that surveyed 30 vendors and checked over 90 customer references.

The results from the two reports are as follows:

(1) Companies listed as “Top Electronic Discovery Software Providers Based on 7 Criteria” (Table 19 and 20), listed in alphabetical order. (2) Companies awarded ratings of “Positive” or “Strong Positive” (Figure 1), listed in alphabetical order.

Why are the lists so different? Primarily because of two main factors:

1. Gartner’s list mixes service providers and software companies whereas Socha breaks them out separately. The Socha report has an entirely separate list for service providers.
2. Socha’s report was completed 6 months earlier than Gartner’s. In that intervening period, several new players entered the e-discovery market. For example, Kazeon was ranked by Gartner earlier this year a “niche player” (lower left quadrant) in the enterprise search market, and has not been in e-discovery long enough to participate in the Socha study (or, if they did participate, they did not have enough e-discovery customers to gain a high ranking).

Conclusions

The first conclusion to draw from these lists is that any vendor not in them is probably not worth considering for e-discovery. If neither Socha nor Gartner ranked them highly, then the vendor either could not provide compelling customer references or has lost competitive bake-offs to someone who is on the list. Either way, they are best avoided.

The second thing that stands out is how different these lists are. Of the 21 vendors identified by Socha and Gartner, only 5 are ranked as top e-discovery software vendors by both of them. Those 5 are Attenex, Clearwell, FTI, Guidance, and LexisNexis. So, if you are an enterprise looking for an e-discovery solution, it is clear who you should call first.

Finally, it is worth noting that both these analyst reports are relatively new. This is the third annual survey for Socha, and the first MarketScope for Gartner. That speaks to the fact that e-discovery software is a new, fast-growing product area. More and more enterprises are adopting e-discovery software solutions, and asking analysts about them, because they offer such a compelling ROI.

Prior to working in e-discovery, I (Aaref) always thought standards bodies were a waste of time – or, at least, nothing more than an excuse for free travel to exotic locations. But George Socha and Tom Gelbmann’s EDRM project has changed my mind. In the second of a series of posts, our e-discovery guru – Kurt Leafstrand – explains one of many ways in which EDRM will have a big impact on e-discovery in the years to come:

Last week, I once again had the pleasure of participating in the (now biannual) EDRM conference in St. Paul, Minnesota. For those unfamiliar with it, EDRM is a fantastic collaboration between e-discovery software vendors, service providers, and consumers committed to addressing practical problems associated with e-discovery.

Looking back on both formal sessions and informal conversations with many participants, the one key theme that came across loud and clear is that the days of traditional, “throw-it-over-the-wall” (TIOTW) e-discovery are numbered.

I am sure you’re familiar with the TIOTW approach, that endearing process whereby an enterprise gathers up a muddle of electronic data in all shapes and sizes, ties it up in a big bundle, rolls it in bubble wrap, and catapults it into the waiting arms of a service provider. They unwrap it, chant some incantations and perform other black magic for a few days (or it is weeks?) and throw a bundle back over the wall to their corporate client. In-house counsel takes a look and promptly realizes that the search terms she thought were sure things were completely off the mark, and that she missed a couple of custodians, and then… well, it’s back over the wall again.

What’s going to tear the wall down? The EDRM XML schema, the first version of which is unveiled today by Clearwell and a large group of other vendors and customers. This will have the same impact on e-discovery as web services have had on e-commerce, enabling systems to pass data to one another over the internet, just as Travelocity passes information to American Airlines when you use it to make a reservation online.

What difference will this make? Well, I boil it down to 3 main things:

1. Litigation risk will decline as early case assessment finally becomes a reality in the enterprise—making it feasible to process, analyze, and do first-pass review of documents in-house, and then transfer those documents and tags to service providers and outside counsel without having to start from scratch.
2. E-discovery timeframes will shorten as enterprises become able to craft comprehensive e-discovery strategies more easily by executing and refining searches closer to the source of the data, and eliminate time-consuming back-and-forth exchanges between enterprises and service providers. And that’s a good thing, with the new FRCP (and coming soon, state rules!) pressure.
3. E-discovery manageability will improve as enterprise-based e-discovery systems are able to integrate seamlessly with downstream litigation management systems. Previously, you were forced to either channel data into a complex external litigation management system too early — making it difficult for internal counsel and other constituents to have access to the documents — or pay for costly and time-consuming custom data conversions to migrate data between document “silos.”

What to do with all of those unused CDs gathering dust in your office? I’ve heard they make great coasters…