Category Archives: eDiscovery & Compliance

Highlights from Reed Smith’s SharePoint eDiscovery Webinar

by John Patzakis

Reed Smith recently hosted an excellent webinar on SharePoint eDiscovery challenges, led by Patrick Burke with the firm’s eDiscovery team. The webinar featured a substantive and detailed discussion on the nuances, pitfalls and opportunities associated with eDiscovery of data from SharePoint sites. This topic is very timely as the majority of enterprises are deploying the Microsoft platform at an accelerated rate, with the solution reaching $1 billion in sales faster than any other Microsoft product in history. Burke noted that “SharePoint has exploded across corporate networks, and are filling rapidly with ESI,” but that “the bad news is that it’s not centralized. There is no single place to go to search through the ESI across an organization’s SharePoint sites to identify which SharePoint Site holds the ESI you’re looking for.”

As SharePoint enables enterprises to consolidate file shares, Intranet sites, internal message boards and wikis, project management, collaboration and more into a single platform, it provides significant operational efficiencies as well as eDiscovery challenges. The vast majority of current SharePoint deployments are versions 2007 or 2010, and neither have meaningful internal eDiscovery or even export features. This is one reason why SharePoint eDiscovery is fraught with over-collection, resulting in much higher costs and time delays that what is typically seen with other similar data stores such as email servers and file shares.

In addressing best practices for eDiscovery of SharePoint sites, Burke advised, among other key points, that the litigation hold process must not only involve individual custodians but the SharePoint administrator as well: “As it usually isn’t feasible to search all an organization’s SharePoint sites, the first step is to talk to the key custodians (through litigation hold questionnaire processes) and ask them which SharePoint sites they use (to identify) relevant ESI.” From there, “the cross-check involves talking with the SharePoint administrator, who can look up all the SharePoint sites to which the custodian’s belong.”

A full video recording of the webinar can be accessed here >

Appliance-based eDiscovery solutions or remote collections do not work as it may take weeks, if not months, to copy a multi-terabyte SharePoint site over a network connection and a large corporation may have several dozens of SharePoint silos from which to collect.  Manual collection efforts, which are geared toward mass “data dumps,” are also time consuming and are typically very costly due to the extensive processing and data massaging required to put the SharePoint data back into context.

Instead, what is needed is a solution such as X1 Rapid Discovery can quickly and remotely install and operate within the same local network domain to enable localized search, review and early case assessment in place. X1 Rapid Discovery’s full content indexing and preview of native SharePoint document libraries and lists, as well as its robust search, document filters, intuitive review interface uniquely enables targeted and contextual search, preservation and export of SharePoint evidence in its native format. In fact, we believe it is the only solution available that enables true in-place early case assessment and eDiscovery review of SharePoint sites, including iterative search, tagging and full fidelity preview in place, without the requirement to first export all of the data out of the platform.

To learn more, sign on to the recorded webinar or please contact us for a further briefing to learn how to save your organization or your clients tens of thousands of dollars on litigations costs associated with SharePoint.

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Filed under Best Practices, Case Law, eDiscovery & Compliance, Enterprise eDiscovery, Information Access, Preservation & Collection

Barry Murphy Joins the X1 Team

Last week, I said goodbye to my time at the eDJ Group, a company in good hands that will continue to provide top notch eDiscovery and information governance consulting at a level of depth very few can match.   This week begins my new adventure as Senior Vice President of Product Marketing and Strategy at X1, and I am very excited about the opportunity.

Many have asked why I chose to join X1 and I want to take this space today to explain the reasons.  As an analyst for the past four years, I have had the chance to see – up close and personal – the challenges that enterprise IT and business people are trying to address.  One that comes up consistently is the ability to quickly find information in a world where the volume of it is increasing so rapidly.  While search might seem relatively simple, I can tell you that many clients pull their hairs out due to frustration with enterprise search deployments.

Thus, the first thing that hit me about X1 was the number of X1 customers whose top point to make about that product is that “it just works.”  Business people like the ease of use and clean, single-pane-of glass view of their information, Legal teams like how X1 Rapid Discovery makes eDiscovery more efficient and less costly, and IT teams like that the product can be deployed in increasingly virtualized environments.

Part of the attraction to X1, for me, is the fact that the company can address such a range of solutions via a powerful search engine.  It is not just about eDiscovery, though there is a product for that.  Rather, X1 will power many solutions by providing easy access to information – and the company does it in a way that just works.  It makes me think back to those old BASF commercials – the ones where BASF says, “we don’t make the products you buy, we make the products you buy better.”  I get a feeling that same message can apply at X1; something along the lines of “we don’t make the cloud infrastructure, we make the cloud infrastructure better and more valuable.”

Stay tuned for more details on how X1 will make other solutions better and continue to provide great search products in 2014.  I’m looking forward to this adventure.

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Filed under eDiscovery & Compliance, Enterprise eDiscovery, Information Access, Information Governance, Information Management

eDiscovery Software Industry Faces Transition

changes aheadRecently, the eDiscovery and litigation support field has seen many developments reflecting a significant shift in the eDiscovery software industry. Greg Buckles and Barry Murphy of The eDiscovery Journal report in several articles and notes in the past few weeks that they see a palpable transition away from software back towards services by corporations seeking to address their eDiscovery requirements. So not surprisingly, there had been various reports indicating reductions in force at several of the top eDiscovery software providers.

Not to pick on Guidance Software, my former company, but they are publically traded and recently disclosed their aggressive cost-cutting measures. In their PowerPoint presentation, Guidance states that the eDiscovery software field “is maturing…not as many large deals available there” resulting in a strategy for the company to refocus on core computer forensics and computer security, and to pivot toward profitability over topline revenue growth. And I don’t think what Guidance is experiencing is much different than from what many other eDiscovery software firms in the space are going through.

And neither does industry analyst Barry Murphy. “Based on what I see, KCura with their Relativity product is doing well, and I think there has been some good growth in the mobile forensics space, and X1 has done well with X1 Social Discovery in terms of growth and customer acquisition. Other than that, it seems that the remaining eDiscovery software companies are either contracting or experiencing only very modest growth.”

Part of the problem is that many aggressive enterprise eDiscovery deployments never achieve their promise of global scalability. A little over a year ago, the CEO of another eDiscovery and forensics software firm publicly claimed that enterprise-wide Autonomy implementations for eDiscovery, in his opinion, never really worked that well from what he could see. Without commenting on or taking a position on the accuracy of that assertion, the article does reflect broader frustrations I have heard from IT and in-house counsel about eDiscovery software in general that claims to be an end-to-end solution for aggressive and enterprise-wide deployments. As a result, many corporate legal departments and corporate IT have opted to continue to outsource eDiscovery to service providers over attempting to implement enterprise-wide solutions.

On the other hand, and reflective of this trend, services firms in this space are apparently doing quite well and their numbers are growing. There are clearly hundreds, if not over a thousand consulting firms, in North America providing eDiscovery consulting services. In just one metric, two years since we launched X1 Social Discovery, nearly 200 eDiscovery and computer forensics firms have become paying customers, and many more are currently evaluating. Some firms have a single license of X1, many have multiple, even dozens. I think those figures reflect both the number of service providers in this space and the aggressive spending behavior from the providers.

I also think, and of course being biased, that with X1 Social Discovery gaining over 400 paid install sites in just two years since the launch of the product, with 250 percent increase in annual sales in 2013, is quite an accomplishment especially given the status of this market. I think that reflects both the quality of X1 Social Discovery as well as the compelling use case of the collection and preservation of social media data for discovery and investigative purposes. So I want to take this opportunity to thank our customers for making 2013 a great year for us and driving the further development and enhancements of our products.

I’m looking forward very much to Legal Tech New York this year, both to meet with our customers old and new, and to speak with some fellow executives about how they are adapting to the changes in the eDiscovery market and opportunities in 2014. I hope to see you there!

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Filed under eDiscovery & Compliance, Enterprise eDiscovery, Social Media Investigations

Social Media Caselaw Update: The Acceleration Continues

Last year our survey of published case law from 2010 and 2011 identified 689 cases involving social media evidence for that time period. Since then, the pace has so rapidly accelerated that it became difficult to keep up with the deluge. quote9bHowever, for this past month of September, a quick tally identifies 88 cases where social media evidence played a key role, which is consistent with our overall analysis that the volume of cases has about doubled year over year. Keep in mind that the survey group only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated, or otherwise resolved last month alone.

The following are brief synopses of five of the more notable social media cases from September 2013:

State v. Smith, (Supreme Court, Tenn.), Sept. 10, 2013 — S.W.3d —- 2013 WL 4804845; Tennessee Supreme court vacates first degree murder conviction on the sole grounds that one of the jurors communicated with a prosecution witness during trial via Facebook. The court lamented that Internet and social media “has exponentially increased the risk….of extra-judicial communications between jurors and third parties.” This decision is but one example of this common occurrence of juror misconduct through social media use, requiring attorneys and jury consultants to engage in on-going passive monitoring of publicly available social media information.

In re Hydroxycut Marketing and Sales Practices Litigation (US District Court, Calif, Sept. 17, 2013) 2013 WL 5275618. A federal judge disallowed an objection to a $25.3 million class action settlement as not credible. The court relied in large part on the objecting Plaintiff’s Facebook postings where she demonstrated a pattern of recruiting other people to be objectors to various high-stakes class action proposed settlements for compensation, including recent class actions involving HR Block and Discover.  This led the court to conclude that “her posts were aimed toward finding objectors…Clearly, Ms. McBean works closely with others who seek to represent objectors in class action lawsuits.” The court determined that the objecting Plaintiff was not a credible class member and struck her objection to the settlement.

Rodriquez v. Wal-Mart Stores, Inc., (5th Circuit. September 19, 2013)  — Fed.Appx. —- 2013 WL 5274468.  Plaintiff Virginia Rodriguez filed suit against Wal–Mart/Sam’s Club Stores, for discrimination based on age and national origin, and retaliation under the Texas Commission on Human Rights Act (“TCHRA”). Plaintiff’s serious violation of the company’s social media policy was the decisive employment offense which led to her termination. Wal–Mart’s Social Media Policy prohibits any conduct that adversely affects job performance or other associates. While the Social Media Policy allows employees to post complaints online, the comments cannot appear “unprofessional, insulting, embarrassing, untrue, [or] harmful.” The court determined that Ms. Rodriguez’s insulting Facebook comments regarding a co-worker were legitimate and not pretextual grounds for her termination. The Court dismissed her suit on summary judgment.

Fox v. Transam Leasing, Inc.   US District Court, Kansas. Sept. 18, 2013) 2013 WL 5276111. In this case, Transam Leasing sought the production of current archives of the Facebook and Twitter accounts of the Plaintiffs. The court found that such information would be potentially relevant to the litigation and overruled Plaintiffs’ “unfounded” objections. But the court did provide Plaintiffs the following option for responding to the social media request: “Plaintiffs shall provide the archive information, as requested…As an alternative, however, Plaintiffs may satisfy the requests by providing all of the following information from their respective Facebook and Twitter accounts: any discussions or complaints about defendant(s); any communications regarding the intent of any Plaintiff to sign up to drive for defendant(s); and any discussions about this law suit that is not subject to a legal privilege.”

Daniels Agrosciences, LLC v. Ball DPF, LLC, (US District Court, Rhode Island. Sept. 20, 2013) 2013 WL 5310208. This is another in a long line of cases where social media usage is considered as a factor in establishing minimum contacts for jurisdictional purposes. The fact pattern here is not unique, but this is the most recent example.

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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here.

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Filed under Case Law, eDiscovery & Compliance, Social Media Investigations

Discovery Templates for Social Media Evidence

Book coverAs a follow-up to the highly popular Q&A last week featuring DLA attorneys Joshua Briones and Ana Tagvoryan, they both have graciously allowed us to distribute a few of their social media discovery templates found in the appendix of their book:  Social Media as Evidence: Cases, Practice Pointers and Techniques, published by the American Bar Association, available for purchase online from the ABA here.

The first template is deposition questions relating to social media evidence. The second is a sample of special interrogatories. They can be accessed at this link. Thanks again to Joshua and Ana for their insightful interview, and for providing these resources.  Their book contains many more such templates and practice tips, including sample document requests, proposed jury instructions, client litigation hold memorandums with a detailed preservation checklist, preservation demand letters, and much more.

In other social discovery news, the ABA Journal this month published an insightful piece on social media discovery, featuring attorney Ralph Losey, with a nice mention of X1 Social Discovery. In a key excerpt, the ABA Journal acknowledges that “there is a pressing need for a tool that can monitor and archive everything a law firm’s client says and does on social media.”  The article also noted that more than 41% of firms surveyed in Fulbright’s 2013 annual Litigation Trends report, acknowledged they preserved and collected such data to satisfy litigation and investigation needs, which was an increase from 32% the prior year.

Another important publication, Compliance Week, also highlighted social media discovery, where Grant Thornton emphasizes their use of X1 Social Discovery as part of the firms anti-fraud and data leakage toolset. Incidentally,  when determining whether a given eDiscovery tool is in fact a leading solution in its class, in our view it is important to look at how many consulting firms are actually utilizing the technology, as consulting firms tend to be sophisticated buyers, who actually use the tools in “the front lines.” By our count we have over 400 paid install sites of X1 Social Discovery and over half of those – 223 to be exact – are eDiscovery and other digital investigation consulting firms. We believe this is a key testament to the strength of our solution, given the use by these early adopters.

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Filed under Best Practices, eDiscovery & Compliance, Social Media Investigations