I attended the inaugural Enterprise Search Europe in London October 24-25 and was impressed with a few things. Firstly the attendance was stronger than I thought, perhaps around 100, although that includes sponsors’ attendees. There were half a dozen main sponsors and two vendors I spoke to said they wanted to sponsor it but were too late – so there is demand there for such an event. Chairman Martin White of Intranet Focus did an excellent job of keeping things moving along and stepped in to fill a gap in the program caused by last-minute absentees. He’s summed up the whole conference himself here.

I was on two panels, one more formal than the other. I was responding to the thoughts of Funnelback’s chief scientist David Hawking, who talked of current research in the enterprise search area and contrasted it with the wealth of research done in Web search. I pointed out that if some organizations such as TREC made its output actually usable by vendors (who aren’t permitted to say where they come in TREC rankings) then it would get much more support.

In the evening in the Hand & Flower pub across the road from the hotel for the latest Enterprise Search Meetup London I was one of two permanent panelists (Laura Wilber of Exalead being the other), with a goldfish bowl set-up where anyone wanting to ask a question had to joint the panel’s spare seats to do it from there. It made for some pretty lively discussions about what the next big things might be impacting enterprise search (big data being one of them, of course), helped by the  beer & wine paid for by Exalead.

The evening in the pub might have been livelier than the panel at the conference itself, but the themes were similar, namely that enterprise search as a use case and value proposition is dead; people don’t buy enterprise search engines to ‘find stuff’ within their organization anymore. There has to be a more tangible use case, such as electronic discovery, or fraud detection and the like. I’ve written about this recently.

Two other analysts were at the conference – Alan Pelz-Sharpe of RealStoryGroup and Mike Davis of Ovum. Alan has penned his forthright thoughts here and Mike and I talked enough to know that the three of us – and plenty of others at the event that weren’t analysts but actual users – were thinking similar thoughts. So despite the fact that the conference is called Enterprise Search Europe and most people seem to think that enterprise search as a concept is redundant, I would recommend the event for next year, by when I suspect it may be called something else.

Yesterday I attended the 6th Annual e-Disclosure Forum at Canary Wharf in London, organized by the globe-trotting triumvirate of Chris Dale, Browning Marean and George Socha. It was a good program, with an audience comprising a mix of lawyers, litigation support professionals, IT practitioners, tech software and service providers and other assorted folks, like myself. It’s the second year I’ve attended and these were the key themes I picked up on:

• Practice Direction 31B – not surprisingly this was a major issue throughout the day, considering may of those present for instrumental in drafting it, including Chris Dale and Senior Master Steven Whitaker (among others) and it only passed into the rules on October 1.  For those that don’t know, 31B amended the rues of civil procedure in the UK (the rough equivalent of the Federal Rules of Civil Procedure in the US), as they pertain to the disclosure of electronic documents (which can of course include email and other forms of communications). One aspect of the changes is a questionnaire to be used in more complex cases that involve a large number of documents. Not only does it sound to us like a sensible way of helping to to contain and get parties prepared for the case management conference (meet and confer in US parlance), but quite frankly it could be useful starting point  for organizations simply to looking to get their house in order to get prepared for future litigation.
• Another key theme was the effect on recent UK cases on the way parties are now cooperating in case management meetings. One speaker, Jeremy Marshall, head of commercial litigation at Irwin Mitchell said that in his experience there’s a vast difference in terms of what happened before landmark cases such as Earles vs Barclays Bank in 2009 and the Digicel vs Cable & Wireless case in 2008 and what happens now. Companies know that if they don’t cooperate to make sure the necessary documents are disclosed, they could be penalized by the court, even if they win the case. For more on the Earles case and what it means regarding the destruction of documents see Chris Dale here.
• Cloud. I had a lot of conversations with IT and legal people at the conference and they’re still not seeing the necessary granularity in service level agreements (SLAs) from cloud service providers. If you need to search your data for the purposes of e-Disclosure, it’s not clear in what format the data will come back to you or even if such a search is possible. That’s a bit of a deal-breaker, over and above any trepidation firms might feel about using cloud for any perceived security issues.
• In general I detected a much clearer understanding on the part of US attendees of the issues in the UK market. Gone are the days it seems of assuming that the exhaustive e-Discovery process in the US is suitable without any alteration in the UK. The two countries obviously share a common law tradition, but like so many other things, there are distinct differences in the way litigation is done and that – aided in part by Chris Dale et al’s work – is now getting through to US vendors, which after all, dominate the market from the technology point of view.
• Tips for next year to the organizers?
  • come up with a hashtag so we don’t write out ‘6th annual #eDisclosure conference’ in our tweets 😉
  • make the sessions a tad shorter
  • get a couple of additional panelists to mix it up a bit

But overall it’s the best way I know for taking the pulse of the UK e-Disclosure market in a single day.

We’ve also been active in this area ourselves recently with webinars on litigation readiness with Zylab and Katey’s participation on a Brighttalk webinar on cross-border eDiscovery. But most importantly, we have new e-Discovery research out in the shape of our cloud e-discovery [PDF]and cloud archiving [PDF] reports.

This week we publish a new long-form report, Cloud e-discovery: litigation comes down to earth – download an executive summary here.

In cloud e-discovery we see two major market shifts: corporations in-sourcing e-discovery to lower costs, while outsourcing IT infrastructure and services around it through hosting.  Still in early adoption, it is a leap of faith on some level, and carries both risks and benefits.  While most users in our 2010 e-discovery survey were bringing the e-discovery process in-house, only 16% were using cloud to do it, for a variety of reasons including security, data loss, regulatory concerns, and ease of retrieval.

But consider that hosted e-discovery has actually been around for over 20 years. What’s more, while some enterprises are resisting the cloud, their law firms, service providers, and other outsourcers entrusted with their data are not.

Witness this month’s 2010 Am Law tech survey – 80% of law firms are using hosted technology, 60% of those for e-discovery.  In fact, e-discovery tops all hosted software usage, far surpassing HR (21%), spam filter/email (21%), storage (6%) or document management (5%).  And while 79% report a positive experience, 30% said the savings were not what they expected.  Limited customization, diminished data control and security were even greater concerns.

And what of the bigger-picture risks?  Cloud topped the agenda last month at the Masters Conference as well: the growth of public and private cloud data from mobile use and social media, potential regulatory pitfalls, the benefits and risks of hosted e-discovery, and growing cross-border issues.  No blue-sky thinking here, just hard truths on the cloud from those on the front lines.

From e-discovery lawyers and consultants:

• “[Public] cloud providers can’t meet the needs [of e-discovery] today.”
• “Your data, your problem.”
• “Data privacy in the EU is like free speech or freedom of religion in the US. . . they will give up the cloud before they give this up.”

From Microsoft General Counsel, speaking on cloud regulation:

• “Things will move quickly, and if something bad happens, things will move faster still.”

From an enterprise buyer on procurement:

• “It will take 19 months to work out e-discovery issues once you start talking about it.”
• “Every dollar they save on cloud will be three dollars in legal.”
• “I hate when people say ‘it’s not gonna stop – it’s already there.’ It makes customers think there is no choice but to comply.  But maybe ‘cloud’ will go away?”

And for the last word, a characteristically common-sense admonition from UK expert Chris Dale (speaking on ECA):

• “The best technology lies between your ears.”

So, how to navigate it all?  For a succinct analysis of the cloud e-discovery market, our report is available to 451 CloudScape or Information Management subscribers, or get an executive summary here.  It offers a market overview, benefits and risks of cloud e-discovery, adoption trends and inhibitors, market drivers, current vendor and service-provider offerings, and the future direction of the market, particularly for enterprise customers.

Also note a complementary report, Cloud archiving: a new model for enterprise data retention, by Simon Robinson and Kathleen Reidy.  They estimate the market will generate around $193m in revenues in 2010, growing at a CAGR of 36% to reach $664m by 2014.  This report covers growth drivers, the competitive landscape and the outlook for consolidation, featuring detailed vendor profiles and end-user case studies.

ILTA (International Legal Technology Association) 2010 kicked off with attendance around 1100, up almost 40% from last year according to some attendee estimates, in spite of an emergency venue change following May flash flooding in Nashville.

Even in the August desert heat of the new Las Vegas location there was an encouraging “after the flood” spirit of survival and rebuilding – a look at the 7^th annual ILTA member technology purchasing survey indicates greater financial stability in the sector following last year’s weaker recessionary economy, law firm layoffs and hiring freezes, and stagnant corporate legal budgets: 45% stated their firms are “back to normal financially” (vs. 45% in 2009 reporting that it would take another 12 months – evidently they were right).  Likewise, ILTA’s survey showed that IT spending is slowly recovering from 2009, and 33% report an increase in IT budget, albeit most spending has been in core hardware, infrastructure, computers, and SAN’s – see the InsideLegal write-up for more details.

Many in the e-discovery market claimed strong growth in h1 2010 after a lean 2009 as well, although recent M&A shows the market is still maturing both in technology and go-to-market.   Most vendors and providers continue to build out their lines to be more comprehensive in functionality and interoperability – Clearwell released v. 6.0 of its appliance with enhanced search and more review load file export, Guidance Software made its latest EnCase eDiscovery platform release this week with stronger  search and data analytics, IPRO announced Allegro ECA to integrate with eCapture, Nuix announced an “eDiscovery Supercomputer,” and AccessData Group is busily integrating its own forensic platform with its newly-merged CT Summation assets, as is Unify with its new Daegis DocHunter SaaS review platform and existing archive.

But “end-to-end” claims have subdued somewhat, either from some hard-earned humility or better recognition of a highly variegated customer base with individual pain points.  The messaging tone was commensurately more mature and less reliant on scare tactics of threatening sanctions and crushing reactive discovery costs, instead emphasizing more actual product differentiation, addressing customer pain points, more aggressive pricing, and preparation and risk management.

The theme for 2010 was “Strategic unity” – one that I think emphasized this theme of survival in the industry and more receptiveness (even enthusiasm?) for joint technical and business evolution– I expound on this further for subscribers in our full write-up of the conference and software/service provider releases here.

A few other themes stood out:

• Cloud technology evangelists got a sizeable platform (sorry) through a user panel and a number of vendor sessions, including Microsoft Azure, Autonomy, and Smarsh for social media compliance archiving – a matter of particular interest as we ready upcoming reports on cloud archiving and e-discovery.  Please get in touch with your own story or for more information on the research.

• Review tools (often in SaaS or hosted versions ) got more search and analytics, bigger-scale seat support, and more customizable project set-up for large, distributed cases, with new releases from AccessData (CT Summation CaseVantage 6.0, the first since the merger), Applied Discovery’s new Leverage tool, Catalyst Repositories’ CR 9.0, Clearwell’s afore-mentioned enhanced review module, recent updates from CaseCentral, and iCONECT’s integration with PureDiscovery for semantic search.

• Major vendor releases emphasized not just cutting costs or ROI, but even competitive advantage through gains in business opportunities and productivity – a word that has sometimes been a double-edged sword for sales to the legal sector (no surprise given its emphasis on human expertise).  Thomson Reuters’ West appeared on the back of its CaseLogistix acquisition for the West Litigator line (including LiveNote) for attorney case analysis, and demoed Engage for law firm resource management planning, while LexisNexis made its second integration with Microsoft for the year with Interaction CRM for Outlook, a CRM tool for tracking contacts and client interactions.

• In review tool automation, Recommind had a major rebrand and marketing push behind its Axcelerate predictive coding technology (now integrated in v.8 of its CORE categorization engine for “predictive analytics” across its product line), while Equivio boasted more direct sales for its Relevance review prioritization technology, and Kroll Ontrack announced “Intelligent Prioritization” in its Inview hosted tool.  Autonomy, however, seemed to have backed off its July “meaning-based coding” announcement for IDOL, opting for a risk management platform for attorneys as its release for the event.

• Defensibility had more practical applications with strong turnout among legal hold notification– kCura’s new Method Legal Hold, Exterro’s Fusion Cloud Legal Hold and Zapproved were all on hand – and from forensics vendors and service providers emphasizing collection that will hold up in court, including growing service provider D4, and Integreon’s new Seek and Collect tool used in tandem with services.

• In data management and analytics, Digital Reef announced an open software benchmark for clocking performance along phases of the EDRM, StoredIQ recently released v. 6.0 of its e-discovery and information governance appliance on a 64 bit architecture, and announced integration with Microsoft Data Classification technology for ILTA, while EMC-Kazeon turned up in partnerships for collection and ECA with Applied Discovery and Merrill Corp, as well as recent EMC-Source One releases, of course.

Finally having just returned from VMWorld (hence the delay) I’m struck by the intersection of information management / e-discovery with storage, security and GRC, as all of us grapple with (and continue proliferating) Big Data, both in scalability and manageability.  NetApp was on hand at ILTA and came up by name with e-discovery vendors, as did BlueArc, while at VMWorld, EMC announced plans for a FISMA-compliant VMWare and RSA alliance to trace exact “geolocation” of virtual machines and prevent violating international data privacy regulations, potentially alleviating a major concern of companies transferring data for e-discovery in the cloud.

Continuing on our dive into forensics for e-discovery, today we cover more on the reasons for using it in practice, as well as highlights from CEIC 2010. . .

Now that we’ve examined the technology involved, one question remains: do you need forensically-defensible collection for e-discovery?  The answer is: not necessarily. Many lawsuits do not require this depth or scope of data collection (such as collecting from RAM), particularly civil cases.  And for general defensibility purposes, courts do not expect perfection.  The goal is a reasonable, good-faith effort to accurately preserve data and metadata with a repeatable, documented process  – one you can testify to in court if necessary.

Why use a forensic approach at all?  To the layman, forensics can sound hard and even scary, as well as potentially expensive and time-consuming – some vendors even refer to it as “the F word.”

Well, at this point you should consult a lawyer or expert – the goal is that you never have to use it.  But here are some good reasons to at least educate yourself about it:

1) Forensics has impressive capabilities, and the technology is cool – a.k.a. “the CSI defense.”  E-discovery is not just paper-based discovery on a computer.  The “paper trail” is now digital, and it’s important to know about this technology’s potential for the legal field, as well as the risks involved.  Like the fact that your deleted files are not really gone.

2) Forensic evidence is critical in trying some cases where the “smoking gun” isn’t just buried in a terabyte of text and document-level metadata – criminal matters, or trade secret or insider trading cases where you might have to dig through ‘track changes’ or reconstruct an IM history from RAM to see who knew what, and when.  E-discovery requires a tool box, and forensics can be an important one of those tools.

3) Targeted collection has its own benefits as an approach to e-discovery collection.  Forensics vendors argue that existing enterprise search tools are only as thorough and current as their latest index.  Likewise, preemptively storing data in a repository like an archive, ECM or Records Management system promises easier retrieval, but is not practical for all organizations and all types or volumes of data.

4) Last but not least: court defensibility (if done reputably by a qualified person with appropriate tools – this is not legal advice in any form).

I will leave it to the experts to flesh out the rest of the forensics story (or take issue with my cribbed-notes version in the comments), but a few show highlights from CEIC:

Exhibitors: As this was a tech show, I’ll lead with the tech.  While CEIC is unquestionably Guidance’s party, there was plenty of co-opetition on the exhibition floor from forensics rivals AccessData and Nuix, e-discovery appliance vendor Clearwell Systems, the now-integrated EMC SourceOne-Kazeon, and growing forensic consultancy D4, which showcased review tool partner kCura’s new Relativity 6 release.  451 subscribers can read about Guidance’s EnCase E-discovery V. 4 here, EMC’s new SourceOne for SharePoint here, a report on kCura here, and look forward to an imminent update on Clearwell 5.5, plus new coverage of AccessData and Nuix.

I recommend checking out the demos if you have the chance.  It’s interesting to see how technology evolves to make different active and dynamic data types accessible, both for collection (SharePoint is a big problem here – EMC, FTI and Nuix all debuted tools for it recently) and for attorney review.  For example, kCura’s latest release has a pivot table feature for attorneys to drill into large amounts of structured data like text messages intelligibly, as you would in Excel.

All-star cast:  CEIC ‘s 2010  e-discovery track featured some marquis panels on judicial opinions, international privacy regulations, advanced search and retrieval, and case law updates.  Many presenters are also on Guidance’s Advisory Board (which was meeting during the conference), so they actually stuck around after their sessions and gave attendees the chance to monopolize their attention at lunch and happy hour.  UK e-disclosure expert Chris Dale has a good run-down on the judges, which included Hon. Judge Peck, Judge Donald Shelton and Senior Master Steven Whitaker from the UK.  Also present: EDRM founders George Socha and Tom Gelbmann, the oft-cited Craig Ball, Browning Marean of DLA Piper, and of course Melissa Hathaway, former presidential Cyber-security Czar and worthy successor to last year’s keynoter Leonard Nimoy.

Browning gave a plug for Recommind‘s Axcelerate and Equivio Relevance‘s predictive coding capabilities for review during the search and retrieval panel, which thrilled me as a text analysis and search enthusiast.  451 subscribers can read more on these tools in our past coverage, or the recent long-form e-discovery report.

Users:  There really are no seat-fillers at CEIC; attendees are not just there for a Vegas getaway with continuing education credit.  Everyone I met was a practitioner and formidable techie, many from large companies and government organizations with high-volume litigation or internal investigations.

My conversations with them confirmed for me that e-discovery is still a case of “one size fits all nobody.”  When I asked about their go-to forensic brands, some users told me that each vendor’s tool has strengths, and ideally you should have access to and knowledge of several (if you can justify the purchase to accounting).  Some also use multiple “end-to-end” e-discovery platforms to suit their litigation requirements and cross-functional business processes.

One final thought to wrap this up.  The “e-discovery toolbox” analogy I keep beating to death is stolen extrapolated from George Socha’s advice on search methods: As in any project, you need to know your materials and understand what tools are best for the job.  Each has strengths in particular circumstances or scenarios, and with certain data types, locations and volumes.  It depends on your requirements and what results you’re looking for.

This year marked the 10^th anniversary of the Computer and Electronic Investigations Conference (CEIC), a show hosted by Guidance Software focusing on digital investigations in forensics, e-discovery and cyber-security.  I’ll be reviewing this event in two posts, because there’s a lot of ground to cover here – check in tomorrow for some show highlights and more on forensics in practice for e-discovery.

As you might guess, both the crowd and the content at CEIC had a heavy technical and practitioner bent, along with a refreshingly low BS-quotient – good attendance and engagement at the in-depth sessions, not a lot of swag-grabbing seat-fillers milling around the exhibition floor.  Forensics has traditionally had strong traction in law enforcement and government, but the new EnCase E-discovery certification exam (EnCEP) and cyber-security track brought in good numbers of private sector attendees from both IT and General Counsel as well.  Overall attendance reportedly grew about 40% this year to 1300.

At this point, some of us without EnCE certfication may be wondering, “why is forensics important to e-discovery, and what is it anyway?”

The bottom-line in practice is that forensic collection and Guidance’s EnCase format in particular have very strong court defensibility.  From a broader market perspective, Guidance is the only US e-discovery software vendor to go public (in 2006), and has an enviable customer base among the Fortune 500.  All this is to say that while forensics is an expert-grade technology, it is not at all a niche.  In fact, Guidance was #1 in our recent user survey for current usage at 23%, while rival forensics vendor AccessData was cited by 11% of respondents’ planning to purchase e-discovery software or services in 2010.

And what exactly is forensics?  Here I will steal paraphrase liberally from forensic examiner, attorney and expert at-large Craig Ball :

Computer forensics is the expert acquisition, interpretation and presentation of active, encoded and forensic data, along with its juxtaposition against other available information (e.g., credit card transactions, keycard access data, phone records and voicemail, e-mail, documents and instant message communications and texting).

What kind of data are we talking about?  According to Craig: any systems data and metadata generated by a computer’s OS and software (for example: the date you create an MS Outlook contact), as well as log files, hidden system files, and deleted files.  Many tools also handle encrypted files and have additional functions like scanning images to detect pornography – CSI-grade stuff.

The most familiar forensic method of gathering evidence is imaging an entire hard drive, i.e. creating an exact duplicate of every bit, byte and sector, including “empty” space and slack space, with no alteration or additions to the original data.  However for e-discovery purposes, processing and reviewing that much data from a large number of enterprise machines would be prohibitively expensive and time-consuming.  Not to mention the risk of finding things you’re not looking for (even potentially criminal data like pornography which must be reported by law), and the danger of making incriminating data or deleted files accessible to opposing counsel.  For these reasons (among others), vendors like Guidance offer “targeted collection,” often through desktop agents installed on laptops and PCs which automate searching and collections by specific criteria across the network.

Tomorrow’s post will feature CEIC highlights from users, vendors and speakers, plus more on forensics and the e-discovery use case.  In the meantime, for some additional perspective check out #CEIC on Twitter [update: or #CEIC2010], or blog coverage from Craig Ball, Chris Dale and Josh “Bowtie Law” Gilliland of D4.  Many thanks to them and to the others who shared their experiences with me.  Stay tuned.

I’m going to be presenting the introductory session at a BrightTalk virtual conference on March 25 on the role and impact of the virtual server revolution on the storage infrastructure. Although it’s been evident for some time that the emergence of server virtualization has had — and continues to have — a meaningful impact on the storage world, the sheer pace of change here makes this a worthwhile topic to revisit. As the first presenter of the event — the conference runs all day — it’s my job to set the scene; as well as introducing the topic within the context of the challenges that IT and storage managers face, I’ll outline a few issues that will hopefully serve as discussion points throughout the day.

Deciding on which issues to focus on is actually a lot harder than it sounds — I only have 45 minutes — because, when you start digging into it, the impact of virtualization on storage is profound on just about every level; performance, capacity (and more importantly, capacity utilization), data protection and reliability, and management.

I’ll aim to touch on as many of these points as time allows, as well as provide some thoughts on the questions that IT and storage managers should be asking when considering how to improve their storage infrastructure to get the most out of an increasingly virtualized datacenter.

The idea is to make this a thought-provoking and interactive session. Register for the live presentation here: http://www.brighttalk.com/webcast/6907.  After registering you will receive a confirmation email as well as a 24-hour reminder email.  As a live attendee you will be able to interact with me by posing questions which I will be able to answer on air.  If you are unable to watch live, the presentation will remain available via the link above for on-demand participation.

IQPC’s 3^rd E-discovery conference for Financial Services felt like a spa day after LegalTech. You get your CLE credit in a room of less than 40 people while being fed gourmet cookies in a comfortable chair with an expensive view of Times Square – unlike LegalTech, where you spend half your time in an elevator of 40 people, and someone has pushed the button for every floor.

There were some noteworthy insights for anyone considering an investment in e-discovery software or services.  We’ve been crunching numbers for our E-discovery User Survey this week, with some interesting results:

• the overwhelming majority of respondents were still performing every part of e-discovery primarily in–house
• but about half were planning to make an e-discovery purchase in the next year
• however a large number of them hadn’t finalized their choice of product or vendor.

So, how to choose?  Well, in the wake of “Zubulake Revisited,” there is now more judicial guidance on the e-discovery process and certainly more at stake.

To get an idea of what the courts are looking for and how companies are adapting, I attended IQPC’s Judicial panel on avoiding sanctions, as well as the panel on building a corporate e-discovery response team, featuring e-discovery senior management from Lehman Brothers Holdings, Barclay’s, MetLife and Bank of New York.

A few takeaways:

• Judges on the sanctions panel were not sympathetic about high data volumes, saying “Lawyers just have to start dealing with it and make requests and responses appropriate.”  They rejected objections to “burdensome” ESI production requests and criticized litigants for lying about production costs to avoid producing data. One recommended native file production to cut costs rather than requesting images or paper (!)

• Judges called for earlier preservation with a written legal hold, particularly in the wake of Scheindlin’s “Zubulake Revisited” opinion, which they called a “shot across the bow.” One claimed that some companies spent ten-digit numbers on preservation alone, especially if they’re caught at a late stage and can’t easily go back. That figure sounds like I must have misheard, but I don’t argue with judges.

• Judges criticized the lack of cross-functional IT and legal expertise at Meet and Confer and in collection of data. They recommended consultant Craig Ball’s 50 questions to prepare for Meet and Confer [pdf], and advised that e-discovery collections be supervised by someone who should anticipate having to testify in court.

• In the corporate E-discovery panel, Lehman Brothers Holdings (the entity responsible for administering all of Lehman’s litigation) reported standardizing on a single review platform for collaborating with all of its law firms, claiming that they initially had “big fights,” but eventually everyone accepted it – probably no mean feat considering the volume of litigation Lehman faces.

• Another panelist noted that more corporations are taking control of review as well as collection and the earlier stages of e-discovery.  She advised that law firms should analyze legal issues but corporations handle the facts, doing as much review as possible in-house or outsourcing it at lower rates to cut costs.

• No one on the corporate panel had any major objection to using SaaS e-discovery or storing legal data in the cloud.

Food for thought.  We are wrapping up our E-discovery User Survey this month and distributing results, which will also be included in our upcoming e-discovery long form report – contact us if you are interested in purchasing.  And many thanks to everyone who has participated in the survey.

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.