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Social Media and eDiscovery: New Kid on the Block, but the Same Story

Friday, September 30th, 2011

In the eDiscovery universe, hot trends and evolving technologies tend to capture the attention of the legal community.  Discoverable data sources have been the focus in the courtroom for quite some time, and just like the “popular kids” from high school, email has held the crown of eDiscovery darling.  Not surprisingly, the more time end-users spend in a specific medium (on Facebook, for example), the more likely data will be created – and as that data multiplies, it has the potential to become compelling in discovery.  It seems that many U.S. organizations are electing to allow social media use at work and for work, rather than blocking access.  For obvious reasons, granting this access is culturally desirable, but from an eDiscovery perspective social media use introduces new complications.  However, don’t be mystified.  There is nothing that new here.

Recently, Symantec issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information.  Having lost some popularity, email came in third place (58%) to files/documents (67%) and database/application data (61%) when respondents were asked what type of documents were most commonly part of an eDiscovery request.  The new kid on the block for data sources is social media, reported by 41% of those surveyed.  Social media is in essence no different than any other data type in the eDiscovery process, it’s just the newest.  Said another way; social media is the new email.

Of course, it’s no longer news to proclaim that communications from social networking sites are discoverable.  What is newsworthy is the question of how to effectively store, manage and discover these communications which come in such varying forms, making the logistics of doing so for social media different than for traditional mediums.  Like email, social media is used by everyone (ubiquitous), is viral (fast), has mixed uses (professional and personal) and there is a lot of it (high volume).  Unlike email, social media comes in many different forms (Facebook, LinkedIn, Twitter, etc.), is not controlled within an organization’s firewalls (custody, possession and control issues), and has more complex requirements within the information governance lifecycle (technology is needed to ingest social media into an archive).

The two main areas to examine in relation to social media use and an organization’s policies are: 1) the legal issues that apply specifically to the organization, and 2) the logistical and technical requirements for preservation and collection.  Essentially, what is the organization’s policy surrounding social media use, and how can the information be accessed if need be? Luckily, technology exists that is nimble enough to be able to ingest social media and archive it in accordance with an organization’s policy, should one exist.  Organizations that have recognized social media as the newest kid on the block have, ideally: developed a social media policy, purchased (or deployed) collection and retention technology, and instituted training for their employees.  They have also integrated social media into their information governance strategy and document retention policy. Remember, not all organizations will have to archive social media, but all should address social media with a policy and training.

Other organizations have not accepted social media as part of the evolutionary process of eDiscovery.  They proceed at their own peril – as did the organizations that did not control their email some ten years ago!

These organizations will be in crisis when they need to collect social media for litigation and will most likely have a large lesson in damage control, as well as an equally large bill.  They will be uneducated, ill-prepared and overwhelmed about how to discover social media.  Without a policy, they will have to over collect by default, which will drive up the costs for collection and possibly for downstream review.  Given that the aforementioned survey found nearly half of the respondents did not have an information retention policy in place, and of this group, only 30% were discussing how to do so, it is likely that many of these organizations do not yet have a social media policy either.

With this background in mind, organizations should evaluate which laws and regulations apply to their organization, develop a policy and train their employees on that policy.  Plus ça change, plus c’est la même chose.

For more information about how IT and Legal can manage the impact of social media on their organization and to learn how archiving social media can be accomplished, please join this webcast from Symantec.

E-Discovery with Home Depot: “More Saving. More Doing. Guaranteed.”

Wednesday, August 18th, 2010

The Chinese philosopher, Lao-tzu, once said “a journey of a thousand miles begins with a single step.”  This truism has been applied in a myriad of ways over the years, but it applies with equal measure to the process of taming the multifaceted challenge that is electronic discovery.  Simply put, conquering ediscovery is always a journey.  And for enterprises like The Home Depot, they know first hand that you can’t simply look at the end result and wish for the journey to be complete.  Instead, it’s paramount to embrace all the steps along the path and develop good habits that work both for the first and the last mile.

Many enterprises clearly understand the benefits of in-house discovery that include lower processing and review costs, earlier access to case facts, better control over the processes, etc.  But some struggle with how to begin their journey, for any number of reasons (lack of knowledgeable staff, failure to get executive buy-in, inability to build a compelling business case, etc.).  Fortunately, the folks at Home Depot have recently completed their journey and have offered to share secrets they leveraged throughout the process.

In a similar fashion to best selling author’s Stephen R. Covey’s “The 7 Habits of Highly Effective People” David Steel, Sr. Counsel and Barbara Squires, Paralegal at The Home Depot will host a web seminar to walk us through the some of the e-discovery habits that helped them successfully navigate their way through the process.  The web seminar is titled “5 Habits to Create a Highly Effective In-House E-Discovery Process” and it’s free to attend. Since we don’t want to steal their thunder, we won’t divulge their habits now, but suffice it to say that every company can learn from their experiences.  And, after the web seminar I’ll devote more blog time to further expansion of each habit.

Since it’s our raison d’être to help companies complete their e-discovery journey, we’re excited to have The Home Depot on to share stories from their journey, all in the hope that others, just embarking on their own expedition, can be just as successful.

Learn More On Litigation Software & Ediscovery Litigation.

E-Discovery MythBusters: Debunking Common Myths About ECA

Tuesday, August 25th, 2009

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.

How Will The Financial Crisis Impact E-Discovery?

Sunday, October 26th, 2008

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.

Google Moves E-Discovery To The Cloud

Monday, May 19th, 2008

g-discovery2.jpgThere is no bigger idea in enterprise technology than the idea of “cloud computing“. What does it mean? Simply put, the idea is that enterprises will cease to buy hardware, e discovery software, and all the headaches that come with them. Instead, companies will rent whatever applications they need and access them over the internet. Software vendors will keep their applications on a pool of shared infrastructure (the “cloud”), which will automatically allocate resources between applications according to demand. Using a common analogy, we will move from today’s world where companies are buying and building their own electricity generators, to a world where there are power companies distributing electricity over a grid.

To get a sense for how this might happen, just take a look at the CRM market. Ten years ago, Siebel and other packaged software vendors were among the fastest growing companies in America. Today, they are shrinking as customers migrate en masse to, for example, salesforce.com’s cloud-based approach. One Wall Street analyst I spoke to last week forecast that hosted (i.e., cloud-based) applications will grow their market share from 12% to 21% by 2011, and account for all growth in the market.

E-discovery is no exception to this mega-trend, and I expect a portion of the litigation software business to move to the cloud. How quickly this happens depends on how easy it is for companies to adopt cloud-based e-discovery solutions, which is why Google’s recent moves into e-discovery are so significant.

Google is by far the largest cloud computing company in the world. Its cloud-based Google Apps suite of applications was only launched in 2007, but is already being used by several hundred thousand businesses and, Google tells me, 2,000 new businesses sign up every day. Today, the customers are mainly small to medium sized businesses (500-5,000 employees). But as its functionality improves, larger companies will increasingly start asking why they should pay for Microsoft Office when cheaper alternatives exist.

Talking to Bill Kee, a product marketing manager at Google, it’s clear the biggest gap in Google Apps’ functionality was the lack of enterprise features around security, compliance, and e-discovery. That’s why Google acquired Postini, a leader in messaging security. It’s why Google recently launched Message Discovery, a hosted archive that comes bundled into Google Apps Premier Edition. And it’s why Google is collaborating with Clearwell to educate the market on cloud-based e-discovery solutions.

If you are interested in learning more about “e-discovery in the cloud”, register for a free webinar which we are hosting with Google on June 3.

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