EDD Update

#2009 EDD Predictions

ED predictions for next year?  Well, I agree with Monica that some vendors will fail but I have a different explanation for why that will happen.  It seems to me that in today's economy, big companies thrive and small companies flounder and that is not based on not having a poor business plan or giving poor service. Let's face it, there is so much ED business that marginal litigation support companies have survived for years and will continue to survive. Why? Because contracts are awarded on the basis of personal contacts or poorly managed RFP procedures or just plain old misinformation. (more on that in a moment)

No, the companies that will fail will do so because of plain old economics. Some companies are living on investment capital or vc money and not actual business income. Those people will see the capital run out and the vc money dry up and they will fall by the wayside no matter how good their business plans, their execution or their staff.  If you're not making money by bringing in projects you're doomed.And the big companies which are doing acquisitions will close up some of the folks they buy because they don't meet the corporate business plan.

Here's a good example from right here in New Orleans. Ricoh buys Ikon and then closes roughly 25 local Ikon shops, some of which are making money, including the one here in NO. The local Ikon shop is immediately purchased by Digital Legal, a regional lit support company with an office here. So the business being generated by that shop is still being done and the income is going to someone else because Ricoh doesn't see themselves as a "street" vendor. 

Two different business plans, both successful: one sees opportunity in the local market and one doesn't. Ralph Losey mentions the litigation boom that he sees for 2009. I agree but that boom will profit only the biggest companies. Big lit is being handled by big law and big law is using the big lit support companies. Marketing is a negligible factor.  A regional company like DLS has no possible way of competing against Kroll or KPMG or Lexis, a fact of life we private consultants have known for several years.

StoredIQ updates e-discovery program

StoredIQ Inc. reports that its StoredIQ Solution for Legacy Archived Media now includes data stored on backup tapes.

#2009 EDD Predictions

Here are some of the things I think will happen in the world of e-discovery in 2009? First, and most obvious, there will be tons of litigation next year. Not just 10-20% more, but 20-30% more. Yes, lots of it will be collections work and bankruptcy, but there will be many related and spin-off disputes as well, not to mention the ever present labor and employment. Everyone will be more litigious, including the government. We just have to blame somebody. In short, 2009 will be a banner year for litigation. And with more litigation, of course, comes more e-discovery, lots more. 

So much for the obvious, now for the tricky stuff, what does this mean exactly to e-discovery lawyers and vendors, especially since this is taking place in a poor economy?

E-Discovery Classes Are in High Demand in Law Schools as Economy Plunges

Bill Hamilton and I are teaching a two credit course on e-discovery at the University of Florida School of Law next semester. I was just informed that it "sold out" in five minutes. The law school has online registration and five minutes after it opened all 40 spaces had been taken! We had increased the size of the proposed class from a 30 to a 40 student maximum, thinking that their might be more student interest, but were overwhelmed by this response. I think it says more about the economy than Bill or I, and certainly underscores the need for more schools to start offering their students a chance for this important learning opportunity.

Qualcomm Jury Foreman Comments on the Case

The foreman of the jury in the Qualcomm v. Broadcom case has just left an interesting comment on my e-Discovery Team blog that you might want to take a look at. It provides insight into the inner-workings of the jury and how they saw the case. This is a must read for those who want to learn more about what really happened in this important case.

Through the Looking Glass Darkly

Midnight approaches, and there goes one more day spent watching my counterparts for the other side make forensically sound duplicates of the defendant’s data.  All their data.  Every desktop, laptop, server, thumb drive—even many home computers.  I’m babysitting an effort to mindlessly, slavishly—I would say stupidly—mirror an entire company’s data.

The issue is data theft.  A new hire brought proprietary information from a prior employer.  He copied it to the new company’s computers.  When confronted, he admitted what he’d done, returned the thumb drive that served as the vessel of venality and deleted the data from his little corner of the company system.  

Rule 34 & Form of Production

Over the next several weeks Arkfeld's E-Discovery Alert will focus on the strategy and tactics for handling sixteen specific ESI issues throughout pretrial discovery. Whether it is a "meet and confer" or request for production these are the critical issues to focus in requesting or producing ESI. The legal issue excerpts will be derived from the Best Practices Guide for ESI Pretrial Discovery - Strategy and Tactics (2008-2009). The Guide is cross-referenced and hyperlinked with the Arkfeld on Electronic Discovery and Evidence (2nd ed.) treatise and part of the CD-ROM.

________________________________________
 
ISSUE:  DOES RULE 34 SET FORTH MANDATES REGARDING THE “FORM OR FORMS” OF “ELECTRONICALLY STORED INFORMATION” FOR DISCLOSURE PURPOSES?

ANSWER:  YES


Best Practices Guide for ESI Pretrial Discovery - Strategy and Tactics (2008-2009)


§ 3.10   RULE 34 AND FORM OF PRODUCTION

A.   Overview 
B.   Kept in the Usual Course of Business or Labeled 
C.   Translated Into Reasonably Usable Form or Ordinarily Maintained 
D.   Procedure Determining Form(s) of ESI 
E.   Requesting Party Strategy 
F.   Producing Party Strategy 
G.   Checklist  


A. Overview

During the early stages of electronic discovery, critical decisions have to be made as to the ESI form(s) that will be disclosed to, or received by a party. These decisions will impact, from that point forward, every aspect of the electronic discovery production and disclosure process. For example, they will determine whether the data is searchable and whether metadata is disclosed. They will also impact the cost of managing your litigation information. Failure to request or to disclose the proper ESI form(s) can have severe consequences. Read more . . .

#2009 EDD Predictions

My predictions may be very obvious — but I expect we will see even-more escalated Darwin activity:

1. The collapse of a significant number of vendors, who fail because of overly-optimistic expectations that they will "revolutionize" the market with their "unique" product that has no competitors. (Whenever a vendor marketer tells me the vendor has no competitors I know that company will be gone in a year.)

Vendors will fail if they do not:
* have carefully constructed and realistic business plans.
* have a solid financial foundation.
* understand the challenges of the legal industry (particularly fear in Baby Boomer firm leaders).
* educate the profession (read: talk in plain English).
* listen to their users and offer first-class customer service.
* effectively market so they rise above all the white noise.

2. While the big 3 (Thomson-R, LexisNexis, & Wolters K) will continue to gobble up companies, I will not be surprised if because of the collapsing financial industry, the feeding frenzy slows down a bit next year.

3. Niche vendors will continue to thrive -- especially those who offer stellar customer service, generating fierce loyalty.

As Browning Marean sez, "Fasten your seatbelts, we are in for a lot of turbulence in 2009."

ALCoder 4.0

Rosen Technology Resources Inc. released ALCoder 4.0, the latest upgrade of its autocoding software.

Isys Search Systems releases Isys web:9

Isys Web:9 is an EDD search tool to help users find data on intranets, Microsoft Corp. Sharepoint, internet searches and internet programs.

Onsite3 and Clearwell

OnSite3 and Clearwell Systems Inc. have joined forces to support cross-platform searches.

Sedona Conference releases EDD book

The Sedona Conference Working Group has released Electronic Discovery and Digital Evidence: Cases and Materials, published by Thomson West.

CT Summation Inc. partners with Ivize

CT Summation Inc. partners with Ivize.  Ivize will host CT Summation's CaseVantage as a software-as-a-service.

Informative Graphics Corp. Updates Brava

Informative Graphics Corp. has updated its Brava document review software.  It provides Visual Rights persistent file security, for secure content delivery.

Proginet Corp. releases Slingshot Vault

Proginet Corp. has launched Slingshot Vault, a program that securely sends large documents through Microsoft Outlook.

Hot Neuron updates Clustify

Hot Neuron has released Clustify 2.0.  It automatically categorizes documents and tags them with keywords.

EarlyCase supports more e-mail formats

EarlyCase announces that its e-Discovery program can search Lotus Notes and IBM Domino email files.

InterLegis Inc. upgrades Discovery360

InterLegis Inc. has added native file redaction to Discovery 360. InterLegis says files can now be viewed in their original format without converting to TIFF images.

Mimosa Systems Inc. Adds Module to Nearpoint

Mimosa Systems Inc. has added a Tiered Storage Option for its Nearpoint e-mail archiving system.  It clusters archived e-mail and saves archives on disk.

Kazeon Systems Inc. Releases KazForensics

Kazeon Systems Inc. has launched KazForensics, a forensic e-discovery program that verifies search results.

Playing with dominoes

Dominoes is a game that I never really understood. I am much better at understanding dominoes in the sense of Lotus Domino servers and Notes clients that persist despite Redmond's best efforts.

Although Microsoft's Exchange has a larger market share than Domino, you may run into an adversary with a Domino system and NSF files that need to be discovered. In that case, you will want to partner with a provider who can process and view them in native format, like Electronic Evidence Discovery.

Epiq Adds Equivio E-mail Threads into DocuMatrix

Epiq Systems reports that its DocuMatrix software now integrates Equivio's E-mail Threads which show e-mail in the context of a conversation, and highlights the "inclusive" (last e-mail in a series that contains prior messages.

Altep Inc. Launches Inspicio 2.0

Altep Inc. has debuted Inspicio 2.0, which now integrates with Equivio's  technology that provides near-duplicate detection and e-mail threads.

Welcome Cecil Lynn

I am delighted to introduce everybody to Cecil Lynn III, who has graciously agreed to join Law Technology News' Editorial Advisory Board, and our EDD Update authors team.

He is of counsel to Ryley, Carlock & Applewhite, and is based in Phoenix. He is admitted to the California and D.C. bars, and the U.S Supreme Court, and rec'd his J.D. from the University of California Hastings College of Law in San Francisco. He represents clients on issues ranging from IP, employment, sports, entertainment and white collar crime.

Lynn is an active member of the Sedona Conference, and serves as an instructor at the National Institute for Trial Advocacy, where he teaches courses in e-discovery, depo skills, and trial advocacy. He is a frequent writer — so look forward to his articles in LTN and commentary here. His most recent article, "Public Information or Privileged? Enforcement of Workplace Computer Privacy Policies," is in the December issue of BNA's Digital Discovery & e-Evidence. (You can download it here.)

Of course, he's a blogger: Document Control Central.

Welcome!

Guidance Software and Protiviti

Protiviti will use Guardian Software Inc.'s EnCase discovery software.

IConect & SynthetixND

IConect Development (www.iconect.com) has integrated SynthetixND from Syngence Corp. (www.syngence.com), to identify near-duplicate documents.

Iron Mountain Acquires Stratify

Iron Mountain Inc. (www.ironmountain.com) has completed its acquisition of Stratify Inc. (www.stratify.com).

"My Dinner With Andre" and Special Masters

Another Sedona Conference happening I can tell you about is the My Dinner With Andre experience I had with the inimitable, Craig Ball and five other excellent dinner companions (you know who you are). Craig, much like Andre in the famous movie, entertained us with his conversation, ranging from hash to special masters, and everything in-between.

Big News From Sedona Conference Meeting

I just got back from the annual meeting of The Sedona Conference, which, oddly enough is never actually held in Sedona. This annual gathering includes many of the most knowledgeable experts in the field of e-discovery. They have one firm rule which they remind everyone about at the beginning of the meeting: "What is said in Sedona stays in Sedona." They want to encourage free dialogue by promising confidentiality.  But the First Amendment trumps all, right? Because there was one thing that happened that was so incredible, that I just have to break the rules to tell you about, and that was . . . .

A solution that became a problem looking for a solution

Yes. That lead is a bit circular, and confusing. But the answer is metadata. A topic that is, in itself, a solution to classifying and finding documents in a large data store. But a solution that becomes a problem in e-discovery and the GRC context that tends to get corporations, law firms, and lawyers in trouble with disciplinary rules and clients.

Catalyst and Dojo Technology Partner

Catalyst Repository Systems and Dojo Technology have partnered to provide Catalyst CR and Catalyst XE to Dojo users.

Catalyst partners with Equivio

Catalyst Repository Systems has partnered with Equivio to integrate Equivio technology for e-mail threads into Catalyst CR.

Kazeon and Quantum e-discovery service

Kazeon Systems Inc. and Quantum Corp. have partnered to perform e-discovery on backup and archive residing on Quantum DXi. 

LTN Awards - Entry Deadline Extended

By popular demand, we have extended the deadline to enter nominations for our 2008 LTN Awards -- to Wednesday, DECEMBER 3.

PLUS - at the excellent suggestion of Craig Ball, we have eliminated the fee to enter nominations in the Pro Bono category -- to encourage nominations of projects that are helping others!

Especially in tough economic times, here's an opportunity to showcase your organization's technology stars -- and projects. Today, as Doug Caddell (a former winner of IT Director of the Year) says, you can't just sell your legal skills -- who also have to "sell" your technology. What better way to demonstrate your success than winning one of beautiful lucite stars signifying that your organization is the best of 2008?

The process is simple and painless... Just download the application right here .

Categories include:
• IT Director of the Year  (your IT director or a IT key staff member)
• IT Champion of the Year (a non-IT person at your organization who has helped advance  technology adoptation)

Updated Attenex 5.0

Attenex/FTI Consulting reports that Attenex 5.0 includes improved search performance with Asian languages and faster processing speeds for PST and NSF files.

Stratify Legal Discover 8.0

The updated version of Stratify Legal Discover v8.0 claims to process 750,000 documents per day per matter, and reduce the number of organizing folders for greater efficiency.

Fios Prevail Upgrade

Fios Inc. says the latest upgrade of its EDD software, Fios Prevail, improves search results.

EDD weekly cartoon

CaseCentral Corp. reports that it is now is publishing a weekly eDiscovery cartoon.

Recommind Debuts Legal Hold Software

Recommind released its Insite Legal Hold EDD software, which offers directed searches to collect only  relevant materials for a case or investigation. 

Cutting edge tools help streamline e-discovery

Cutting-edge technologies on the electronic data discovery market offer tools to aid collection, review and production. Lawyers who embrace new e-discovery tools will be better equipped to meet client needs with reduced costs while still complying with discovery obligations.

Mercer Law School e-Discovery Ethics Symposium

First, I appreciate the invitation to post here. Thanks Monica and Pat. This gives me a great place for short posts, as I only write in-depth articles (2,500 word minimum) in my own blog: e-Discovery Team. Also, it is always an honor to write in the same space as Craig Ball!

I wanted to share with you an event that I attended last week in the lovely city of Macon, Georgia, where I am told Oprah has more listeners than anywhere in the country. It is also the home of Mercer, a prestigious, small, private University. The law school has its own campus above the city in a building designed to look like Independence Hall in Philadelphia, only bigger. Very beautiful, white white rocking chairs on the patio of the law school. The school is, by the way, ranked number six in the country in public interest law. Mercer held an Ethics Symposium last week entitled2008 Symposium: Ethics in the Digital Age. As far as I know, it is the first academic event devoted to electronic discovery ethics. The organizer of the event was Professor Patrick E. Longan, Walter F. George School of Law, Mercer University. The Mercer law review also did a great job of organizing this very well run event.

Producer Sanctioned

Unfiltered Orange just tweeted about this post on Electronic Discovery Blog re: a producer sanctioned for failure to provide a 30(b)(6) witness where it failed to educate itself on its systems.

Welcome Ralph Losey

Please help us welcome a new EDD Update author, Ralph Losey, who is an attorney with Orlando's Akerman Senterfitt, and co-chair of the firm's e-Discovery Group.

Losey, as they say, needs no introduction -- he's the author of the e-Discovery Team blog, and the ABA's book, E-Discovery: Current Trends and Cases.

We're delight that Ralph has joined both Law Technology News' Editorial Advisory Board as well as our EDD Update team!

Ralph and Patrick Oot have just returned from presenting at the first Sedona Conference Law School Outreach program. Read more about it here, and in the January issue of LTN>

EDD Casebook

Judge Shira Schedindlin &  Fordham Prof. Dan Capra & The Sedona Center have co-authored  Electronic Discovery and Digital Evidence: Cases & Materials. Info here.

Calling All Candidates

Both the LTN editorial advisory board and the LegalTech board currently have no minority members -- and we both are committed to changing that.

If you are interested -- or can suggest someone we should approach -- drop me a note at commonscold@incisivemedia.com.

Tweet Tweet

I've created a Twitter ID for EDD Update - Check it out here:  http://twitter.com/eddupdate

Bob Ambrogi will be tellin' you everything you need to know about it in the December LTN, but I'll post a few links here shortly as well from others who have 'splained it.

Update: As promised --

From Stephen Nipper (http://twitter.com/nipper):
http://is.gd/4EDR
http://is.gd/4EDS
http://is.gd/4EDT
http://is.gd/4EDU
http://is.gd/4v94
http://is.gd/1d4Z
http://is.gd/4EEr

And here's Nicole Black's recent article, "Twitter 101 for Lawyers," from the Nov 3 issue of The Daily Record.  Download dr_11.3.08(3).pdf

Hat tip to Kevin O'Keefe: for Twitter Tips for Beginners:

Huron Partners with the Dine Group

Huron Consulting Group Inc. announced an alliance with the Dine Group, a legal staffing and placement firm. This will allow them to open a new document review facility in Manhattan.  For more details, see http://www.businesswire.com/news/home/20081106005120/en.

Losey Article on Zubulake

Ralph Losey's article, "The Zubulake Duty Challenge and the e-Discovery Team Solution, is available on Wave Software's website . But caveat emptor -- if you click on the link it automatically downloads the PDF to your computer.

BTW, on the same site you can learn about Trident 5.2.0 which is now available from Wave.

Friday's the Deadline for LTN Awards Nominations

It's not too late to nominate your firm or law department for the 2008 LTN Awards. The process is simple and painless... Just download the application right here .

Categories include:
• IT Director of the Year
• IT Champion of the Year
• Most innovative use of technology in:
-- A trial
-- A law firm
-- A law dept.
-- A pro bono project

As Nike sez, "Just Do IT!"  and as the NY Lottery sez, "You can't win if you don't enter!"

Questions? Contact Kevin Iredell.