We have just published our annual report on the e-Discovery and e-Disclosure industries. This year we’ve subtitled the report ‘Crossing Clouds and Continents.’

This reflects a couple of the main themes of the report that are directly related: the rise of cloud computing within e-Discovery and the effect it has on those involved in e-Discovery in terms of how much simpler it makes it to store data in all sorts of locations. That of course then rasises issues of who is responsisble for that data and under  what jurisduction it falls. Other issues we focus on in the report include:

• Changes in the legal sector in the US & UK
• In-sourcing & out-sourcing of e-Discovery by corporations and law firms
• European e-Discovery
• Social media
• Bribery, corruption & fraud
• Products & technologies, mapped to EDRM and beyond
• User case studies in healthcare, law & government (financial regulators)
• M&A – both the recent surge and a look ahead to what’s next
• Profiles of 30+ software and service providers

To find out more about it and how to get a copy, you can visit this page or contact myself directly.

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.

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.

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.