Nick and I spoke with about 30 software & service providers at LegalTech in New York this year; that’s in addition to the 30-some briefings (with some overlaps) last month for March’s upcoming annual e-Discovery report. We have a more comprehensive LegalTech wrap-up of vendor developments and shifts in the market landscape for our clients here , but here are some of the themes that came up at this year’s well-attended show. ALSO: we’re still soliciting end user participation in our e-discovery user survey, which you or your customers can access here, or contact me for more information  – all participants will receive a copy of the results.

Defensibility and the Scheindlin Opinion: Judge Scheindlin’s ruling in University of Montreal Pension Plan v. Banc of America was a hot topic, particularly the 85-page opinion “Zubulake Revisited: Six Years Later.” (pdf) It defines culpability for defensibility failures in ediscovery, i.e. what constitutes negligence, gross negligence and willfulness. Some of these include failure to issue a legal hold, incomplete collections, destruction of email or tapes, failure to preserve metadata and failure to determine accuracy and validity of search terms. It’s great to see some concrete guidelines, with obvious implications for e-discovery software and services. I found a concise wrap up here and from law.com here.  Software vendors are taking note, and already incorporating the ruling into their marketing.

Price sensitivity: Increased competition in the ediscovery market, lower budgets in legal departments, and more flexible law firm pricing due to pre-review data culling, LPO, AFA’s, etc. all contributed to greater industry price sensitivity this year, with more customer choices and influence in the market. Software and service vendors expanded pricing options and continued to target the outside legal spend from general counsel in their offerings. E-discovery service providers added per-gigabyte contract review to their software and service processes, and offered either “review management” or extensive collaboration with outside counsel. Software vendors offered more project management and monitoring capabilities for tracking time, cost and productivity. Collaboration workflows designed to lower outside counsel fees came up. Vendors increasingly talked about reuse of reviewed documents as another cost savings measure for serial litigants. Some vendor messaging was downright conspiratorial in insinuating that corporate legal could use software to throttle the law firm spend; although many e-discovery vendors have large law firm customer bases, the enterprise accounts remain lucrative and coveted.

New software releases: With deal sizes decreasing at some of the highest price points, there has been increased competition both from upstarts aiming to undercut the bigger names and the bigger names making a play for the mid-market. We heard a lot of “flat is the new up” last year, and many vendors seem to be hustling even harder to win customers by expanding to platforms or trying to tick all the RFI boxes with new features of varying validity. Even more than last year, vendors claim to be end to end and predict that customers want one throat to choke, and they’re attached to it. The customer market is more educated and savvy about its own requirements this year, which lowered the marketing artistry quotient quite a bit, but some of the features we saw added for legal hold, data mapping, retention and disposition policy, review, collaboration, and workflow are better than others. As much as customers may be tired of stringing together point tools with additional budget line items for auxiliary integration or conversion costs and extra fees, most of the products we’ve seen are not the silver bullets they promise – customers should continue to educate themselves about their organizational needs, what other companies are doing, and what the market has to offer. And vendors should consider that unhappy customers are usually the loudest ones.

Early case assessment: All the ECA product releases in the last year seem to have made it a de facto step in the ediscovery process, the only argument remaining is how early it should occur – as early as the initial data gathering at identification and collection, or just before review but after processing? The need for processing itself was a matter for debate – CaseCentral gave its direct Symantec Enterprise Vault connector a big push, but processing vendors advocate just as strongly for the benefits of thorough metadata extraction and preservation.

Information Management Reference Model: We missed the EDRM luncheon, but spoke with Reed Irvin of CA and Sandra Song of H5, the co-chairs of the group tasked with expanding the first box of the EDRM diagram into its own full Information Management Reference Model (IMRM). The working draft is a series of concentric circles outlining the information lifecycle from creation to retention, disposition, discovery and storage, including the architecture and business drivers behind these processes. We’ve written previously on the push for information governance in establishing a litigation preparedness and information management strategy, and are glad to see some structure and industry thought leadership put to these initiatives.

M&A: Lots of M&A buzz this year, unfortunately a lot of it speculation about vendors suspected to be looking for a necessarily swift exit.

A great show this year overall, and many thanks to everyone who took the time to speak with us.  We will be wrapping up the e-discovery report in the next month.  Watch this space.

I heard from veterans that this year’s LegalTech New York was smaller than last, but I can’t say that knowledge made it any less intimidating for a first-timer. Several in the booths told me that despite the lower numbers, the quality of customer was going up – there were fewer tire-kickers and swag-grabbers and more substantial customer prospects. An encouraging sign in a down economy.

Not surprisingly, in the booths and in the conference halls one of the biggest themes was cost. This jibes with a key finding from our December report on e-discovery and e-disclosure, basically that they’re out of control. Another of our projections, the moving of e-discovery in-house in corporations, was a concurrent theme as one of the best means of reducing those spends.  Vendors seem to be moving further leftward in the Electronic Discovery Reference Model (EDRM) towards the earliest stages of data creation in order to capture more of the revenue from this, also as we reported.

The YouTube town hall meeting gave good insight into what issues are important to the legal community in dealing with the challenges of e-discovery.  Some of the hot-button issues:

• Federal Rule of Evidence 502
• the Sedona Conference Cooperation Proclamation.  
• Search methods in review, their transparency and defensibility.
• International e-discovery considerations such as cultural differences, data privacy and the importance of Unicode in multilingual review.
• Monica Bay, editor-in-chief of Law Technology News (LTN) made points in a youtube question about jargon involved in vendor claims (some that resonated with my own experience) – namely that the same ten terms of jargon are used by all vendors to describe their considerably different products, and these are often not well understood by potential buyers. In my experience, terms such as concept search can be confusing and early case assessment can vary greatly in definition and execution from vendor to vendor, but now seem to be offered by many of them with minimal explanation.

To build on that point, it’s a common complaint in any market that vendors are “selling what they have,” versus what the customer needs, but in such a critical area as e-discovery this can be downright dangerous. The consumer needs to be armed with information and expertise in order to make an informed choice – probably one of the reasons that service providers and consultants remain some of the most trusted entities in the field.

The hottest topic NOT discussed in the panels and sessions (at least the ones I attended) was the Autonomy-Interwoven acquisition and what it will mean for the market, about which 451 subscribers can learn more here and here.

Overall the show brought together some of the best minds in the industry for a slightly dizzying wealth of legal and market information. Let me not forget a big “thank you” to the several vendors who met with me to discuss their products and views on the market landscape over the three days. Here’s looking forward to next year.

For additional perspective, see the excellent coverage from Rob Robinson of Orange LT, Whit Andrews at Gartner, and Sean Doherty at Law.com

I’ve been attending LegalTech here in New York for the past few years, but this year things seemed to be different.Firstly, and most noticeably, every inch of available space at the New York Hilton on 6th Avenue was taken, spread across three floors. The corridors, which in less busy shows simply lead you to rooms, were lined with stands as were the exhibition spaces. It reminded me of the annual SIFMA Technology Management conference, which is a bit of a zoo and in the same location. But unlike the financial services industry, the legal industry and general counsel offices of corporations haven’t traditionally been seen as major buyers of IT, let alone cutting edge stuff.But there’s nothing like regulations to fuel a surge in the market. The changes the Federal Rules of Civil Procedure (FRCP), which took effect in December 2006 and mandated that all electronic records were discoverable and that parties needed to be ready within 120 days of the start of a lawsuit to discuss their eDiscovery terms. This made eDiscovery a very hot market in 2007 (and helped Stratify to a nice valuation when it was bought by Iron Mountain in July 2007 for $158m).

But one of the messages I picked up pretty loud and clear is that law firms and legal departments have their eye on a much bigger problem, currently being done largely manually, but ripe for automation: document review. Figures of a $15bn market for document review now and a bill of $40bn by 2011 for overall review expense raised more than a few eyebrows among some prospective customers of document review vendors (many of which are also eDiscovery vendors, a market pegged at about $3bn). Jay Brudz, senior counsel, Legal Technology at GE, put it bluntly, “you know how many freaking lightbulbs we’ve gotta sell to pay for that?,” before making it clear that he had no intention in paying what vendors are asking.

The other point of tension I’m picking up is the one between intelligent archiving and search – the battle of ideas between those that think it’s better to do all the tagging at archive time and do some culling at that point (to avoid storing dupes and garbage) and those that think you should store everything and develop smarter search engines.

It’s clear – admittedly without any empirical evidence to hand – that protagonists in this space, be they general counsel departments, outside law firms or the vendors feel the rate is increasing so fast, their ability to cull the data at archiving time to make it more easily discoverable later can’t keep pace. There’s clearly somethig to that, given how rapidly talk has moved from gigabytes, to terabytes to petabytes to something an IBMer who handles data governance strategy for the company told me his clients call Goog-bytes – a generic term to mean so much data they can’t get their heads around it. After all, at this rate it won’t be that long before we talk of yottabytes in this arena, and what comes after that?

Search and archiving is something we at 451 Group have spent a lot of time on already and that is sure to continue in 2008.