Tag Archives: eDiscovery

August 29, 2013 · 2:06 PM

Microsoft’s Lessons for the eDiscovery Industry

Microsoft imageThe announcement that Microsoft CEO Steve Ballmer is set to retire within 12 months naturally spurred some thought on the analogous plateauing or even demise of prominent eDiscovery software firms in recent years. In my view, there are two general lessons to be gleaned by the eDiscovery industry from Microsoft’s troubles.

The first is about the speed of change in this industry. Three years ago, the PC was king and predictive coding was a fairly obscure term. Now, mobile devices, cloud, social media and desktop virtualization have relegated the traditional PC to the road to legacy status. And we all know the story of the tidal wave that is the predictive coding craze of 2013.

And this leads to the second and related lesson, which is the difficulty for dominant companies to stay innovative in such a fast-changing environment. This past week featured a lot of commentary from business and technology pundits, mostly making fairly obvious points about Microsoft missing the boat on smart phones, tablets and the Vista and Windows 8 debacles. But in terms of the bigger picture, I like the analysis from Nobel prize-winning economist Paul Krugman, who summoned wisdom from 14th Century North African philosopher Ibn Khaldun:

“One insight (Khaldun) had, based on the history of his native North Africa, was that there was a rhythm to the rise and fall of dynasties. Desert tribesmen, he argued, always have more courage and social cohesion than settled, civilized folk, so every once in a while they will sweep in and conquer lands whose rulers have become corrupt and complacent. They create a new dynasty — and, over time, become corrupt and complacent themselves, ready to be overrun by a new set of barbarians.

I don’t think it’s much of a stretch to apply this story to Microsoft, a company that did so well with its operating-system monopoly that it lost focus, while Apple — still wandering in the wilderness after all those years — was alert to new opportunities. And so the barbarians swept in from the desert.”

And I think it’s even less of stretch to apply this story to the eDiscovery software industry. For instance, in speaking to a couple of eDiscovery executives last week, they lamented that a dominant review tool his company relies on, had in their opinion become “long in the tooth” with the executives of that software provider no longer very accessible. Another leading eDiscovery software vendor recently launched a major upgrade to their flagship product resulting in palpable user exodus as the new version was much more complex, with a brand new interface that fell flat. Basically straight out of the Windows 8 playbook.  Not be outdone in its loss of focus, a similar and also market leading company now supports, by my count, at least 12 different products and at least 5 different markets.

And I think this trend of disruption is accentuated in the eDiscovery field because even the dominant players do not have several million in idle funds for research and development into cutting-edge technologies that will not produce meaningful revenue in the near term. Instead, they have to answer to investors of various stripes who demand that quarterly revenue numbers and positive near term cash flow are met. It’s the classic innovators dilemma.

What this means for key buyers of eDiscovery software is that they should be open to change and consider avoiding lock-in with seemingly dominate vendors who could only be months away from being displaced by the barbarians from the desert.

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July 31, 2013 · 12:46 PM

Judge Grimm’s Important Guidance on Social Media Evidence Authentication

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District Judge Paul W. Grimm

Recently, Federal District Court Judge Paul Grimm and two of his law clerks published an excellent and comprehensive legal article: “Authentication of Social Media Evidence,” American Journal of Trial Advocacy, 36 Am. J. Trial Advoc. 433 (2013). Judge Grimm is widely seen as the one of the most influential judges concerning electronic discovery issues. He is known for several ground breaking decisions in the field including Lorraine v. Markel (2007), and Victor Stanley, Inc. v. Creative Pipe Inc. (2008). Earlier this week, The American Lawyer profiled him as one of the top 5 judges at the forefront of eDiscovery.

Given his prominence and celebrity status in the eDiscovery community, Judge Grimm’s thorough analysis and guidance on social media evidentiary authentication is an important development for social media evidence discovery. Judge Grimm succinctly summarizes his article as follows:

“Given the ubiquitous use of digital devices to communicate on social media sites, there is little chance that such evidence will cease to be highly relevant in either criminal or civil cases…Hopefully, this Article can shed some light on the nature of the confusion and offer useful suggestions on how to approach the authentication of social media evidence. It is a near certainty that the public appetite for use of social media sites is unlikely to abate, and it is essential for courts and lawyers to do a better job in offering and admitting this evidence. We hope that reading this Article will be their first step toward this goal.”

More than just a first step as a resource for courts and lawyers, I would expect judges to consider this material solid persuasive authority in deciding cases involving social media and other Internet evidence. The 29-page article is available to subscribers to LexisNexis and Westlaw, but non-subscribers can purchase the article here for $15.

Highlights of Judge Grimm’s piece include a “checklist for authentication” and a thorough discussion of the perils of relying on mere screen printouts of social media and other Internet evidence, documenting the many cases where such printouts were disallowed or otherwise subject to serious challenges by the courts. Additionally, Judge Grimm highlights Federal Rule of Evidence 901(b)(4), (authenticating evidence through internal patterns and other “distinctive characteristics”) noting that it is “one of the most successful methods used to authenticate all evidence, including social media evidence.” Judge Grimm advises the collection of “all of the circumstances and characteristics that apply to the social media exhibit that add up to a showing that, more likely than not, it was authored by the person that you contend authored it.”

We published a whitepaper on this important topic (download it here) of authenticating social media evidence, with an emphasis on Rule 901(b)(4). The bottom line is that absent uncontroverted and cooperative witness testimony, lawyers must turn to circumstantial evidence to help establish an evidentiary foundation for social media evidence. Metadata is particularly important as a “distinctive characteristic” under Rule 901(b)(4), as social media items contain a wealth of key metadata that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question.

This is where utilizing best practices technology that 1) establishes an effective chain of custody of the collected social media; and 2) captures all available metadata without alteration is essential.

In addition to Judge Grimm’s excellent piece, the New York Law Journal, a publication of the NY State Bar, published a very useful practice guide article earlier this year: “Made for Each Other: Social Media and Litigation.” 85-FEB N.Y. St. B.J. 10 (Feb 2013). Here is a key quote: “For the litigator, social media provides a wealth of information– available at one’s fingertips that just a few years ago required hiring a personal investigator to obtain.” The article includes mentions of X1 Discovery at footnotes 38, 40 and 53. A full copy of this article is available on the New York State Bar website here.

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June 17, 2013 · 12:02 PM

Amazon to Host Cloud Webinar on eDiscovery and Enterprise Search

Amazon Web Services2On June 27, Amazon Web Services (AWS) will be hosting a first of its kind webinar by a major cloud provider addressing the topics of eDiscovery and enterprise search.  Per AWS, the webinar will explore solutions that allow organizations to quickly search, identify and act upon distributed data, whether it resides within the enterprise or within the AWS cloud. Vikram Garlapati, an Amazon Web Service Solutions Architect, will lead off the discussion. This is the first time, to our knowledge, that Amazon will be publically addressing eDiscovery in the cloud and featuring a solution like X1 and also the first time they will be featuring a third party enterprise search solution to enable search within the IaaS cloud.

While SaaS hosting of eDiscovery services and some limited enterprise search capabilities by a vendor from their own servers is not new, this webinar will effectively be addressing a very different topic: deploying search solutions for eDiscovery and business productivity into an organizations’ public cloud instance where their data resides. This allows instant and lightning fast indexing, searching, and review of that data in place without having to first export that data out of its native cloud environment.

Also presenting will be LTech CIO Eric Klotzko.  LTech is a cloud systems integrator and AWS partner who is a major proponent of next-generation enterprise search and eDiscovery solutions that install and operate in virtual environments.  Eric will underscore the limitations of traditional enterprise search solutions that are hardware appliance-based or require an extensive manual on-site install process, thereby rendering such solutions as non-starters for deploying into and operating within virtualized cloud deployments.

This is a compelling, very timely topic that impacts the overall enablement and adoption of the cloud. As I blogged about previously, Federal Court Magistrate Judge Andrew Peck of the New York Southern District recently weighed in on public comments on eDiscovery in the cloud. Judge Peck noted that data stored in the cloud is considered accessible data under the Federal Rules of Civil Procedure (see, FRCP Rule 26(b)(2)(B)) and thus treated no differently by the courts in terms of eDiscovery preservation and production requirements as data stored within a traditional network. This brought the following cautionary tale about the costs associated with not having a systematic process for eDiscovery:

Judge Peck told the story of a Chief Information Security Officer who had authority over e-discovery within his multi-billion dollar company who, when told that the company could enjoy significant savings by moving to “the cloud”, questioned whether the cloud provider could accommodate their needs to adapt cloud storage with the organization’s e-discovery preservation requirements. The cloud provider  said it could but at such an increased cost that the company would enjoy no savings at all if it migrated to the cloud.

Having just visited Amazon Web Services headquarters office and meeting with several key senior managers, it is clear this issue is a priority for AWS. This is precisely the reason why we developed X1 Rapid Discovery, version 4. X1RD is a proven and now truly cloud-deployable eDiscovery and enterprise search solution enabling our customers to quickly identify, search, and collect distributed data wherever it resides in the Infrastructure as a Service (IaaS) cloud or within the enterprise.

As far as the major cloud providers, the ones who choose to solve this eDiscovery challenge (along with effective enterprise search) with best practices technology will not only drive significant managed services revenue but will enable a far more rapid adoption of cloud computing.

Please stay tuned for more exciting developments in this next frontier of eDiscovery and enterprise search.

A recording of the webinar is available here >

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April 3, 2013 · 7:18 AM

SharePoint eDiscovery: Ten Times the Cost

Sharepoint no colorOur recent webinar on SharePoint eDiscovery challenges with eDiscovery Journals’ Greg Buckles 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. 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.

Greg Buckles is a well-known eDiscovery expert with a strong command of technical issues concerning data collection from SharePoint sites. In his presentation, he addressed the particular challenge of preserving data from SharePoint in a targeted matter and in context. According to Buckles, current eDiscovery practices involve mass raw data exports from the platform, instead of a preferable practice of review and early case assessment in place to enable a far more efficient and targeted collection of only potentially relevant information. Bulk exports from SharePoint contain a mass of unstructured data that is out of context with no easy way to associate files, document lists, metadata fields and the many other native data types and fields. As a result, the data must be sorted out on the back-end in time-consuming and highly manual eDiscovery processing and review efforts.  Buckles reports that he routinely sees tenfold increases eDiscovery processing and review costs because of these challenges.

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

Another key SharePoint eDiscovery challenge involves its deployment architecture. By their nature, typical SharePoint deployments are de-centralized as the solution is geared toward supporting individual departments and “teams” as opposed to forcing data centralization to a single and large data center. 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 to collect from.  Manual collection efforts, which are geared toward mass “data dumps,” are as mentioned very costly and inefficient.

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 it 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 at info@x1discovery.com for a further briefing to learn how to save your organization or your clients tens of thousands of dollars on litigation costs associated with SharePoint.

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February 5, 2013 · 9:24 AM

Social Media Discovery Hotter Than Predictive Coding?

fire isolated over black backgroundIt was a great show last week at LegalTech New York. Definitely an increase in the number and quality of attendees and it was nice to see many friends and colleagues both old and new.

Also very noticeable were the many, many vendors sporting predictive coding (aka technology assisted review) messaging in their respective booths and various forms of marketing material. In fact, one industry colleague pointed me to a recent bold prediction offered by Recommind lawyer Howard Sklar, essentially proclaiming that predictive coding will have really hit the big time when a state bar organization issues an ethics opinion stating “that failure to use predictive coding is ethically questionable, if not unethical.” Sklar goes on to predict that such an opinion will come within the next 18 months.

I don’t disagree that such a development would be a big deal. But my question is, why stop at an advisory ethics opinion? What about an actual published court opinion where a sitting appellate judge decrees, without mincing words, that legal ethics obligations require lawyers to employ predictive coding? Now that would be huge. Something, in fact, like Griffin v. State, 192 Md. App. 518, 535 (2010), which addresses another hot topic in eDiscovery:

“[I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”

Now to be fair, I must point out that Griffin v. State was reversed and remanded on other grounds (419 Md. 343 (2011)), but I would argue the overall impact from an ethics and best practices standpoint is still there.

Sklar also points out three appellate level cases with written opinions that discuss the concept of predictive coding, without any definitive rulings compelling its use, but nonetheless discussing the concept. Two of the three are even retrievable on Westlaw. I think such appellate-level published decisions are important, which is why we highlight the several thousands of published court decisions in the past three years (see here and here) that have compelled the production of, admitted into evidence, or otherwise recognized the importance of social media evidence to the case at hand. New cases are being published every day, to the point where we candidly have stopped counting due to the deluge. So by the standard set by of my esteemed fellow eDiscovery lawyer Mr. Sklar, social media discovery is a very hot field indeed.

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