Entries Tagged 'eDiscovery' ↓

Well, you may not view it as a prize, but if you complete our e-Discovery/e-Disclosure end user survey, you will receive a copy of the survey results in return for your time. I didn’t make that clear in the earlier post, so wanted to rectify that.

The survey is here and it should take you no more than 10 minutes – time that we greatly appreciate.

We are embarking on an update to our e-Discovery report that we published in December 2008, called e-Discovery & e-Disclosure: this market is now in session. We aim to publish this new report in late Q1. It will be fully up to date with the newest products and services from vendors and service providers, as many will update their offerings in and around LegalTech in New York in early February, which Katey Wood and I will be attending.

As part of that report we are aiming to generate what we think will be the largest end user survey conducted in this market. The survey is online and open to anyone (although it isn’t anonymous so we are able to filter out any non-relevant entries).

The link is here and if you’re an end user in the e-Discovery or e-Disclosure world, be it a lawyer (whether in a law firm or general counsel department), a project manager at a law firm, a litigation support specialist; in fact anything relevant to e-Discovery/e-Disclosure, we’d love for you to participate to make this a fully-informed survey.

Also if you can help us distribute the link to make it a more inclusive survey, please get in touch via Twitter – @nickpatience or @kwood451.

I got the chance to attend several sessions at the New York IQPC e-discovery event this week for some interesting perspectives on bringing e-discovery to the enterprise.

Recommind’s Craig Carpenter hosted a panel on Information Governance featuring Scott McVeigh, Director of RM at Aramark and Dawson Horn, Senior Litigation Counsel of Tyco, focusing on the benefits of litigation preparedness and getting organizational support from management and stakeholders. This issue came up more than once during the conference – the challenge of obtaining executive approval and participation from IT, legal, HR, compliance, procurement, RM and other stakeholders in planning, designing and deploying comprehensive information systems. McVeigh encouraged users to be vocal about the need for change, (over the course of several years if necessary), and to invoke C-level names to achieve organizational buy-in.

Autonomy’s Deborah Baron interviewed Karla Wehbe, Senior Information Resources Manager at Bechtel, for a case study of how the company is promoting document re-use by collaborating with outside counsel on a new methodology for ediscovery review. After parting ways with its prior law firm and losing access to previously reviewed documents, Bechtel established an information-centric approach to the process, facilitating re-use of reviewed documents through additional coding from outside counsel. The company claims that 5-75% of reviewed documents are now reusable.

Benefits include better control of document categorization and retention policy, as well as the ability for the company to “tell a story” with its evidence that can be communicated across cases. Wehbe acknowledged an initial “identity crisis” from outside counsel as the corporation established more control, but claims that they are now advocates of the process, and it has built trust and cooperation between them. An interesting example of the changing nature of the attorney-client relationship in corporate law. I am curious as to what their billing arrangement is.

Ian Campbell of iConect was joined by Kurt Michel of Content Analyst, VP of litigation for Phillips North America Timm Miller and Morgan Lewis Associate Denise Backhouse for a discussion of collecting ESI internationally, including EU data privacy regulations, the Hague evidence convention, blocking statutes, and the precedent set by the 1987 Supreme Court case Aerospatiale v. United States for requiring discovery even in defiance of blocking statutes from the jurisdiction of the data.

The difference in global collection philosophy is staggering (at least to this provincial American). Backhouse was asked (facetiously we hope) if it wasn’t enough for both parties just to agree “not to tell” about breaking regulations during discovery, and responded that that would violate the fundamental human right to privacy – literally a foreign concept to those of us accustomed to living under the Patriot Act. Not only could a company not access or even put a litigation hold on employee email in many EU countries, according to Backhouse even board meeting notes would be forbidden since they would identify attendees, potentially revealing where they were employed at the time.

The panel concluded that international e-discovery is not a checklist, but a carefully-negotiated balance between compliance and avoiding sanctions. We continue to follow this with interest, particularly the pending updates from the UK Civil Procedure Rules Committee, as Nick reported from the Thomson Reuters E-disclosure Conference in London.

Unfortunately I missed the judges’ panel, but the sessions I did attend were informative and underscored some of the trends we’ve been seeing in the market. Namely: the rise of Information Governance, the shifting of roles between e-discovery vendors, service providers, general counsel and law firms as technology moves in-house, and the increasingly (complicated) global nature of e-discovery.

We’re now hard at work on our 2010 long-form report on E-discovery and E-disclosure, featuring 25+ vendor profiles and comprehensive coverage of this fast-paced market – publication is slated for late Q1 2010, after Legal Tech. Stay tuned.

Much, much later than I’d planned, here are my thoughts on the recent Thomson Reuters e-Disclosure Conference, held in London earlier this month, the program for which was ably run by Chris Dale, Browning Marean and George Socha. Chris has already penned his thoughts and so here are some of my key takeaways from the sessions:

• On the continuing challenge of preservation, collection and exchange: such challenges exist even at blue chip law firms. Parties still don’t discuss documents before case management (known as meet-and confer-in the US) meetings, despite rules in the UK saying they must do do. There was some trepidation expressed in that lawyers don’t want to reveal their set of keywords ahead of the meeting as it might indicate which way they’re thinking in terms of the case.

• On the challenges of handling electronically stored information (ESI) across the US, Australia, Canada, the UK and the other EU countries, Chris Dale pointed out that the UK  should be in an advantageous position vis a vis the rest of Europe due to its position within the EU, coupled with its common law disclosure/discovery tradition that the UK has and the rest of the EU does not. However it has to change certain things and the Civil Procedure Rules Committee is working on that in the form of a questionnaire and some other changes  and is due to publish its findings in early December. Master Steven Whitaker, Senior Master of the Supreme Court outlined some of the proposed changes and I’ve no doubt Chris will have more on this when the findings are published.

• On outsourcing litigation support versus doing it in-house, it was clear that both methods are preferred at different times and for different reasons, not surprisingly. But outsourcing is real, whether the legal profession cares to admit it or not. Junior lawyers in house are doing less & less first pass review as it’s done in countries such as as India, while experienced lawyers are not doing it at all anymore, which will have an effect on litigation support. The litigation support teams within law firms may not be growing, the number of project managers certainly is. The role of law firms as project managers as the next phase of e-Discovery/e-Disclosure is in line with what we’ve been hearing in our conversations with clients and vendors.

• On the use of technology for review, given the presence of technology vendors on panels it was not surprisingly claimed that smaller firms can get on a level playing field as big companies through use of technology. It was also claimed that manual reviewers are often justifying their existence to maintain salary and overtime levels, which is no doubt true in some cases. Anyway, it’s hard to see how someone can do eight hours of manual review a day without becoming tired and being prone to mistakes and comparing software against a supposed gold standard of human review isn’t such a gold standard after all.

• And finally, cloud computing, which is both scaring and stimulating the e-Disclosure industry in equal measure; well, perhaps scaring more than stimulating right now. As one speaker reminded those in attendance, it’s your obligation to know where your data is, even if you outsource it to a cloud data provider.

Overall a very worthwhile one-day conference and I’d recommend it to anyone wanting to get up to speed on the UK market and meet some of its key participants.

Most of the information management team are attending the 4th annual 451 client event, which takes place in Boston next week, November 2-3, so I thought I’d let you know what we’re up to.

Four of us are presenting, here’s the dates/times (all ET) and themes:

• Nov 3, 3.30-4.15: Matt Aslett – Open source to the rescue?

Can open source really help enterprises cut costs and ride out the economic storm? What has been the impact of current conditions on open source adoption? How is this being reflected in the business strategies of vendors – both open source specialists and traditional proprietary vendors?

• Nov 4, 11.00-11.45: Nick Patience & Kathleen Reidy – E-Discovery to Information Governance: From Reactive, Unavoidable Cost to Proactive Cost-Avoidance.

E-discovery is a market without a lot of discretionary spending – legal events and investigations occur, and require that organizations produce relevant electronic information, no matter the difficulties or costs. This fact has driven lots of vendors from various sectors to the e-discovery (also known as e-disclosure) market: it is driving business in the archiving, enterprise content management and enterprise search markets, as organizations want to figure out how to better prepare for litigation before it occurs.

• Nov 4, 11.45-12.30: Simon Robinson –  Storage Technology Is Thriving in the Economic Downturn

The economy is shrinking, but data is growing. Almost universally, storage vendors claim they can help IT ‘do more with less’ by squeezing more value out of storage assets to meet rampant data growth and stiffer retention criteria. This presentation will examine how three key trends in storage innovation – optimization, unification and the cloud – are helping some storage vendors thrive in this uncertain climate. The session will conclude with a vendor panel discussion.

Henry Baltazar is also attending and we’re all avaiable for 1:1s, though some of our days are getting pretty near to full. Contact your account rep about booking a slot.

If you are a client and you’re not attending then you’re missing out on one of the key beneifts of being a client!

If you’re not a client and you wish to attend, you can do that too, only you’ll have to pay to get in. Either way, you can register here.

Beyond information management all our other themes will be address including cloud (a lot!), security, virtualization, eco-efficient IT and our popular M&A panel, which always comes right before cocktails on day 1.

See you there!

Our webinar last week on information governance went well and generated some interesting questions.  I didn’t get to answer all the questions on the call so I’ll take the opportunity to briefly answer some of them here, including some of the more interesting ones I did answer live.   Most of these topics were covered in much more detail in our recently published report on information governance, which also spawned the webinar. The full recorded webinar is also available online as well.

Q: Can you talk to any trends you see in terms of who in an organization is purchasing governance/e-discovery tools?

This is something covered in some detail in the report itself.  In general, there’s some difference in terms of purchasing between “governance” and “e-discovery.”  If the use case being addressed in a particular procurement process is specifically for reactive e-discovery – meaning, the ability to respond to a specific legal discovery request – then the process is likely to have heavy involvement from the legal department if not full ownership by that team with IT involvement.

Governance is generally broader and is likely to involve more underlying pieces of technology (e.g., archiving, records management, indexing tools for distributed data and e-discovery / early case assessment).  There’s certainly no single approach to governance and most organizations are in the earliest of stages in terms of putting in place some kind of broader governance strategy.  Procurement is still likely to be tied to more tactical requirements and the specifics of those requirements will dictate who’s involved (e.g., e-discovery is more likely to be run by legal, as noted above, while an email archiving decision is more likely to be led by IT with legal involvement).  Generally speaking, hashing out broader governance strategies may well involve IT (email management, storage, ECM and search folks), legal, compliance officers, records managers and security personnel, among others.

Q: What are your thoughts about how far right along EDRM the big ECM vendors will move?

So far, ECM vendors are focusing on the far left of the electronic discovery reference model (EDRM).  This has expanded in the last twelve months or so from a far more limited focus solely on the “information management” process step to greater capabilities for data identification, collection, preservation, and some review and analysis.  This is likely to continue, though I’d be surprised to see ECM vendors move beyond this.  Identification, collection and preservation will be key areas in the short term (EMC’s recent Kazeon buy is a good example of how ECM vendors will look to better handle distributed data).  Review and analysis capabilities are likely to remain in the area of early-case assessment, with the expectation that a winnowed-down set of data is still likely to be turned over to external counsel for further review and analysis. That’s likely to be where most ECM vendors stop, though not all; Autonomy, for example, plays specifically in the legal market as well with iManage and Discovery Mining.

Q: Can you explain a bit more what you mean by “litigation readiness”?   What processes does this cover?

I guess this is a phrase I use a lot when talking about information governance and perhaps I didn’t explain it well enough on the webinar.  Litigation readiness is really just one reason organizations are interested in information governance.  Poor information governance makes it difficult to respond efficiently and cost effectively to e-discovery.  There are a number of processes involved in better preparing for litigation, but ideally, organizations need to have some high-level understanding of what data exists, where it is and who has access to it.  That’s a whole lot easier said than done of course, particularly when you need to include data on desktops, laptops, shared file drives and so forth.  The processes generally need to encompass maintaining some kind of index of what resides on all those devices and how that data will be captured and secured if needed.  That needs to be combined of course with more formalized management of data in archives and records management systems, with some consistency in terms of retention and disposition policies (that are standardized and enforced) across sources.  Few organizations have a very good handle on this sort of thing across repositories and unmanaged devices today, but those that are more often involved in litigation are likely to be more litigation-ready.

Q: Is Information Governance of primary interest in the US or are companies in Europe also concerned? I.e. is there an opportunity for vendors beyond the US?

Information governance as it relates primarily to litigation readiness is of primary interest to those in the US and in parts of Europe that have similar discovery or disclosure requirements for electronic information.  In geographies that don’t yet have as strict requirements for electronic discovery, governance may still be an interest but may be for different reasons.  Compliance with specific regulations (e.g., privacy-related legislation) can be a concern, for example, as can IP protection or other types of security.   So there is certainly opportunity for vendors in specific markets, such as archiving, but the drivers might be different.

That’s probably enough for one blog post.  Again, those interested in the full webinar can find it here.

This Thursday I’ll host a short webinar to discuss some of the findings from our recently-published report on the emerging Information Governance market.  This report looks at how archiving, records management and e-discovery technologies are coming together to help organizations get a better handle on internal data for litigation readiness and compliance purposes.

The webinar is free and open to anyone, so please feel free to join if you’re interested in this topic.

During the webinar, I’ll outline some of the trends we uncovered while doing our research for this report, look at the vendor landscape and M&A activity in this area, and briefly discuss some of the technologies that we think will be important in this sector moving forward.

Here’s the info and registration link:

The Rise of Information Governance webinar

Thursday, September 24, 2009

12:00 – 1:00 PM EDT

Register here

Recorded versions of our webcasts are available on our site a short while after the events are over.

Our lengthy report that shares a title with this blog post hit the wire yesterday (a high-level exec overview is available here for all).  I’ve blogged before about our efforts on this.  It has been quite a project, with several months of listening, reading and talking with lots IT managers, attorneys, integrators, consultants and vendors.  Oh and writing — the final doc weighs in at 57 pages…

I noted before that I wasn’t sure “information governance” was a specific or real enough sector to warrant this kind of market analysis.  Aren’t we really just talking about archiving?  Or e-discovery?  Or ECM?  In the end, I found we’re talking about all these things, but what is different is that we’re talking about them all together. How do we ensure consistent retention policy across different stores?  How do we safely pursue more aggressive disposition?  How do we include all that “in-the-wild” content in centrally managed policies?

Is “information governance” really the right tag for this?  I don’t know, but I never came across anything better (I did toy with “information retention management” for awhile).  We  might be calling it something else in a couple of years, but the underlying issues are very real.

From the report intro:

What is information governance? There’s no single answer to that question. At a high level, information governance encompasses the policies and technologies meant to dictate and manage what corporate information is retained, where and for how long, and also how it is retained (e.g., protected, replicated and secured). Information governance spans retention, security and lifecycle management issues. For the purposes of this report, we’re focusing specifically on unstructured (or semi-structured,
like email) information and governance as it relates primarily to litigation readiness.

In the report, we look at why organizations are investigating more holistic information governance practices:

• to be better prepared for litigation
• to ensure compliance
• to reduce risks and costs of unmanaged or inconsistently managed information

Then we go into the market with analysis of:

• the rise of email (and broader) archiving for litigation readiness
• the relationship of the ECM and records management market
• Autonomy and other vendors advocating “in-place” approaches to governance

There are also sections on adoption issues, market consolidation and areas for technology innovation.  And profiles of 15 vendors (each with a SWOT analysis) active in this market.

Expect lots more on this topic moving forward.

451 clients will have seen my report of Autonomy’s Q2 results last night, so I’m not talking too much out of school here, but one of the more interesting things for the longer term from its conference call was the identification of three phases of evolution from basic eDiscovery through information governance.

The spot in the call where this was examined was given over to COO Andrew Kanter, who is a lawyer. He didn’t elaborate on it as we has clearly reading from a script (so much so that he said “click,” at the end of each slide ;)), but nevertheless I though it was interesting to note and pass on.

The three phases, which the company believes will encompass roughly five years at most large organizations are:

1. Archiving and basic e-discovery as companies deal with litigation or are not in compliance
2. Legal hold and early case assessment – part of what it calls advanced e-discovery – when companies come to the conclusion that manual methods of legal hold – sending emails out to the employees saying not to delete things – don’t work.
3. The third phase is information governance, i.e. the policies and technologies meant to dictate and manage what corporate information is retained, where and for how long. 
   

At the moment, the company is seeing ongoing work in phase one and the start of work in phase two. It has one unnamed client doing phase-two work – a Wall Street institution – with 70,000 desktops and 490TB of data to manage across six geographies. Autonomy says the number of potential deals in its pipeline for phase two has increased in the last quarter, but its timelines are still a bit fuzzy. But it seems like Autonomy is not seeing any phase three, i.e. full-on, enterprise-wide information governance work at the moment.

We have seen this movement from e-discovery to information governance in our own research, but we’ve also noticed how early we are in that process. In fact Kathleen Reidy is about to publish our report on information governance that picks up directly from where our December 2008 report on e-Discovery and e-Disclosure left off. In this new report we will examine various approaches to information governance and how it will impact the market for archiving, content management, search and e-Discovery going forward. Kathleen or I can provide more detail should you require it.

Microsoft has begun to share information on what it calls the “waves” of Office 14 products set to hit the market this year and next. Most of the information at this point is on Microsoft Exchange 2010, which has entered public beta. General availability is expected in the second half of this year.

There’s also some info for SharePoint, though little detail. Microsoft SharePoint Server 2010 will go into technical preview in Q3 2009 and be generally available in the first half of 2010.  Beyond that, we still don’t know what will and won’t be in SharePoint.next (though we don’t have to call it that anymore).

The part of the Exchange 2010 announcement that caught my attention is the reference to an integrated e-mail archive.  Did Microsoft just enter the email archiving market?  That would certainly be noteworthy, given that much of the hot email archiving market involves archiving Exchange email.  Since Microsoft hasn’t had a horse in this race, this has been the realm of third-party providers like Symantec and Mimosa Systems to date.

On the analyst telebriefing held today by Microsoft on this announcement, I asked about this and the role for Microsoft’s email archiving partners going forward.  Michael Atalla, Group Product Manager for Exchange at Microft told me that Microsoft is out to meet the needs of the 80% of its customers that don’t yet have any email archiving technology and that existing email archiving products serve a “niche” of the market at the high end for customers that have to meet regulatory requirements for email archiving.

While I agree there is still a lot of opportunity in the email archiving space, describing existing adoption as limited to those in regulated industries isn’t exactly accurate.

I’ve tried to dig deeper into what this integrated archive includes.  Not easy, as there is no mention of archiving at all in the TechNet docs on Exchange 2010 (though there’s quite a bit of interesting detail on records and retention management).

Best I can tell, Exchange 2010 lets you create individual or “personal archives.”  This page from Microsoft explains that a personal archive is:

an additional mailbox associated with a user’s primary mailbox.  It appears alongside the primary mailbox folders in Outlook. In this way, the user has direct access to e-mail within the archive just as they would their primary mailbox. Users can drag and drop PST files into the Personal Archive, for easier online access – and more efficient discovery by the organization. Mail items from the primary archive can also be offloaded to the Personal Archive automatically, using Retention Polices…

So it moves the PST file from the desktop to the server, which makes it more available for online searching and discovery purposes.  But is that really email archiving?  I can see how that would be attractive to end users that want an easier way to access archived emails, but it seems like it would increase the load on the mail server and not handle things like de-duping, which archiving is generally meant to address.

I’m not an expert on email archiving though.  I’d love to hear from anyone who has comments.