Reported by:  Scott Madsen, Esq. / The Posse List Editorial Staff

Deborah Baron (Vice President, Legal & Compliance, Autonomy) moderated the session titled “Taking Compliance and E-discovery to the Cloud”.   (For a video interview of Deborah discussing cloud computing with Ari Kaplan click here).

The panel participants: Jason R. Baron (Director of Litigation, National Archives and Records Administration & Co-Chair, The Sedona Conference Working Group on Electronic Document Retention & Production); Browning E. Marean(Partner, DLA Piper);  Wayne Matus(Partner, Pillsbury);  Karla Wehbe (Senior Information Resource Manager, Risk Management, Bechtel Corporation); and George Tziahanas (Vice President of Compliance, Autonomy). 

What is cloud computing?

When the Internet started it was Web 1.0.   Then the web evolved into what we have today, an interactive platform that is Web 2.0.  You can take information and put it up, or host it,  in the cloud.   “The Cloud” is a euphemism for the Internet.  The Cloud (and the irony is not lost on us) is ethereal and means different things to different people so the panel described in brief the National Institute of Standards and Technology (NIST) definition (click here for more on NIST).  That full technical definition from NIST is as follows and provides the framework for your further understanding of cloud computing:

Definition of Cloud Computing: 

Cloud computing is a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. This cloud model promotes availability and is composed of five essential characteristics, three service models, and four deployment models. 

Essential Characteristics:

On-demand self-service. A consumer can unilaterally provision computing capabilities, such as server time and network storage, as needed automatically without requiring human interaction with each service’s provider.

Broad network access. Capabilities are available over the network and accessed through standard mechanisms that promote use by heterogeneous thin or thick client platforms (e.g., mobile phones, laptops, and PDAs).

Resource pooling. The provider’s computing resources are pooled to serve multiple consumers using a multi-tenant model, with different physical and virtual resources dynamically assigned and reassigned according to consumer demand. There is a sense of location independence in that the customer generally has no control or knowledge over the exact location of the provided resources but may be able to specify location at a higher level of abstraction (e.g., country, state, or datacenter). Examples of resources include storage, processing, memory, network bandwidth, and virtual machines.

Rapid elasticity. Capabilities can be rapidly and elastically provisioned, in some cases automatically, to quickly scale out and rapidly released to quickly scale in. To the consumer, the capabilities available for provisioning often appear to be unlimited and can be purchased in any quantity at any time.

Measured Service. Cloud systems automatically control and optimize resource use by leveraging a metering capability at some level of abstraction appropriate to the type of service (e.g., storage, processing, bandwidth, and active user accounts). Resource usage can be monitored, controlled, and reported providing transparency for both the provider and consumer of the utilized service. 

Service Models:

Cloud Software as a Service (SaaS). The capability provided to the consumer is to use the provider’s applications running on a cloud infrastructure. The applications are accessible from various client devices through a thin client interface such as a web browser (e.g., web-based email). The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings.

Cloud Platform as a Service (PaaS). The capability provided to the consumer is to deploy onto the cloud infrastructure consumer-created or acquired applications created using programming languages and tools supported by the provider. The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, or storage, but has control over the deployed applications and possibly application hosting environment configurations.

Cloud Infrastructure as a Service (IaaS). The capability provided to the consumer is to provision processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems, storage, deployed applications, and possibly limited control of select networking components (e.g., host firewalls). 

Deployment Models:

Private cloud. The cloud infrastructure is operated solely for an organization. It may be managed by the organization or a third party and may exist on premise or off premise.

Community cloud. The cloud infrastructure is shared by several organizations and supports a specific community that has shared concerns (e.g., mission, security requirements, policy, and compliance considerations). It may be managed by the organizations or a third party and may exist on premise or off premise.

Public cloud. The cloud infrastructure is made available to the general public or a large industry group and is owned by an organization selling cloud services.

Hybrid cloud. The cloud infrastructure is a composition of two or more clouds (private, community, or public) that remain unique entities but are bound together by standardized or proprietary technology that enables data and application portability (e.g., cloud bursting for load-balancing between clouds).

Overall advantages and issues

The panel delved into the advantages of the cloud, as well as some of the issues: 

Advantages:

Shared resources, information, hardware, software and other resources can be delivered more rapidly and searched.  The cloud is not just for outsourcing, large corporations use the cloud for their data centers combining their local LANs with the cloud to increase capacity, in other words, a hybrid cloud.  This should lead to lower costs for data storage, searching and retrieval.

Issues with the Cloud:

There have also emerged critical yet not fully unexplored issues such as: (1) Preservation, retention and disposal of the data;   (2) Control and Access; (3) Collections and Holds (how do you instigate a litigation hold?  What about metadata?); and (4) Privacy — the use of the data, the location of the data both lead to privacy concerns. 

In evaluating a service agreement for hosting in the cloud,  Wayne Matus offered up some things to include in the terms of service: Use of data, Location of data , Encryption , No change of terms , Destruction, Ownership (assignment), Subpoena , Audit rights.   

On the downside of cloud computing:  security issues.  Wayne Matus mentioned he is involved with a case where there are weekly security breaches and this is “not the best of all possible worlds”.   He also said “There’s someone really smart sitting in Kazakhstan figuring out how to break through it.”  Private clouds were mentioned as one possible solution to the security issue. 

And control, possession and location in the cloud are issues to be looked at as well.  Cloud computing promises a huge liberation of human creativity and communication; but can this precious space for our collaboration be kept open and free?   Cloud computing is bringing with it “cloud capitalism”.  Companies will make money from organising these clouds for us. Apple already is, with its iTunes cloud of music and its cloud of thousands of third-party apps to run on the iPhone. Cloud computing will also bring a kind of cloud culture: increasingly, we will express ourselves through these clouds of films, videos, pictures, books, stories and music. 

Should Lawyers use the Cloud?

Browning Marean said that the genie is out of the bottle.  This is a disruptive technology in that pre-cloud law firms knew where there data was, but now in the cloud — where is your data? A litigation hold is the biggest challenge in the cloud.  Also, in the “pre-cloud” world you knew where (physically) your data was located.  You knew which jurisdiction you were in.  Now, where is the data?   It is important because privacy laws in the US  vs. the EU are different and we have recently seen in several court cases how problematic it becomes.

The Cloud cannot be used as a shield, the data must be accessible.  See Phillip M. Adams & Associates, L.L.C.,  v. Dell, Inc. 2009 WL 910801 (D.Utah March 30, 2009)  (click here).   But just because your client’s data is in the cloud does not mean you don’t have to produce it.  See FRCP 34(a) ii and FRCP 26(a)1(a)(ii).  It appears that when people have to make the decision about retention they go overbroad, creating more ESI, which leads to more e-discovery.  (Which leads to the search for more vendors with culling, filtering, ECA, “predictive coding” capabilities)

An important cloud computing case mentioned by the panel:

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008 Access here and commentary here  FRCP 34(a) required production of data in the cloud from text messages sent or received by employees of the City using text messaging devices supplied by SkyTel (for the case click here). 

And also what is being commonly referred to as “Zubulake 6″ or the very recent Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC,et al., 05 Civ. 9016 (SAS) (S.D.N.Y. Jan. 15, 2010), (click here) although this case seemed to be mentioned in all the sessions.  Members of the panel opined that the case may very well require litigation holds too early and lead to higher costs of litigation.

The Galleon hedge fund case  was mentioned as well which involved insider trading and wiped out a $6 billion dollar fund in a few hours after an indictment was announced.   Audio, texts, email, docs, trade records — all in the cloud and all part of the ediscovery requested by regulators — touched many outside regulated industries and included such giants as IBM, AMP and others. 

Side Bar

Jason R. Baron gave an interesting historical note oon the Oliver North/Iran-Contra episode.  It occurred when government policy was to not use email for official purposes.  He contrasted that later with the Obama administration, which has emphasized transparency and reversed the government agency trend to the point now where the default is for the government is to store more records in the cloud.  Then he gave the “Field of Dreams” scenario:  ”If the CIO builds it, the lawyers will come,” which corroborated what Deborah Baron said earlier, that the legal system is catching up to the increases in technology.

Social Media

Social networking/social media (SM) was discussed as well.   It was mentioned that FINRA Regulatory Notice 10-06 recognizes social networking and provides for extended bookkeeping requirements if social media is used for business purposes (note: this is for financial industries, which are heavily regulated).  It was mentioned that SM is an emerging technology and that companies need a SM policy, and they need to enforce it.  Each company is different and has its own culture and should have it’s own unique policy and address what SM is being used for.   Browning Marean said “50 year-olds shouldn’t be setting the policies for the 20 and 30-year-olds of the organization” (although if you work for a start-up that usually is what happens) while earlier Jason R Baron quipped that he made a deal with his daughter that as long as she doesn’t de-friend him on Facebook he won’t de-ATM card her.   Do these two statements attest to the generational gap that exists today in SM use?

For the Powerpoint from the presentation which shows all the subjects discussed click here.

Postscript:

It was a good session, with lots of information.  As cloud computing comes of age, our links to one another will be increasingly routed through a vast shared “cloud” of data and software. These clouds, supported by huge server farms all over the world, will allow us to access data from many devices, not just computers; to use programs only when we need them and to share expensive resources such as servers more efficiently. Instead of linking to one another through a dumb, decentralised network, we will all be linking to and through shared clouds.

The session could not accommodate all issues.  For instance, whose clouds will these be?  Cloud capitalism and cloud culture will not always be in harmony. The best way to understand the coming conflicts over the cloud is to look at the issues already being raised by some of the earliest applications. China, where Google is belatedly standing up for the principles of a cloud free from government interference, is the most immediate example.

But Google also has a more pragmatic, commercial motive. Gmail is a cloud service. Users do not store their messages on their own computers but in a remote cloud run by Google. (The Guardian newspaper recently junked its own, costly email service in favour of Google’s enterprise-level Gmail offering.) If Google cannot maintain the integrity of the Gmail cloud, it does not have a secure service to sell. There will be many battles of this kind in years to come where corporations, citizens and governments struggle for control of the cloud.

An equally significant battle involving Google’s influence over the cloud is being played out in a nondescript courtroom in New York, where the company has been defending its plans, devised with several university libraries, to create a cloud of more than 10m digital books. The question is: on what terms will Google make these available to readers and recompense their authors and publishers?

This shared cultural cloud will come at a price that is difficult to calculate. Google will acquire considerable power over the future of publishing and books – which books to include in the cloud and which not.

This dispute is a template for many others to come. Governments will also have their own views about these clouds, seeing in them threats to national culture (the French response); threats to security (the Chinese response) or threats to competition (the response of the US department of justice).

Thus, just as it is emerging, open cloud culture is threatened on all sides by vested interests of traditional media companies, hungry new monopolists and governments that are intent of reasserting control over the unruly web.

All of this deserves a more detailed examination and it will form the base for the cloud computing vBook The Posse List is writing in collaboration with several e-discovery vendors, law firms and IT experts.  It will be made available for free via our collateral site The Electronic Discovery Reading Room.  Look for our announcement in the coming weeks.  If you’d like information about contributing or being a sponsor, email us at manager@theposselist.com

Jason R. Baron and Ralph Losey do not need any introduction for those of us in the e-discovery “trade” but for our new readers a quick summary: 

Jason has served since 2000 as Director of Litigation for the National Archives and Records Administration, and is an internationally recognized speaker and author on the preservation of electronic records. He was recently named Co-Chair of The Sedona Conference® Working Group on Electronic Document Retention and Production, and has previously served as Editor-in-Chief of The Sedona Conference Best Practices Commentary On The Use Of Search And Information Retrieval Methods In E-Discovery and Co-Editor-in-Chief of The Sedona Conference Commentary On Achieving Quality In The E-Discovery Process.   He is a founding co-coordinator of the TREC Legal Track, a multi-year research project evaluating search technologies used in e-discovery.  Jason has been a trial lawyer and senior counsel with the Department of Justice, a Visiting Scholar at the University of British Columbia, and is currently an Adjunct Professor at the University of Maryland’s Graduate College of Information Studies.  He also presently serves on the advisory board for the Georgetown Law Center’s Advanced E-Discovery Institute and is a faculty member of Georgetown’s E-Discovery Training Academy.    

Ralph C. Losey is an attorney, educator, and author who practices law as a shareholder of Akerman Senterfitt, an AmLaw 200 law firm with offices in Florida, New York City, Washington D.C., Los Angeles, Dallas, and Denver. Ralph is also an Adjunct Professor of Law teaching electronic discovery and advanced e-discovery courses at the University of Florida College of Law. Ralph has been practicing law since 1980 in commercial litigation where he has over 70 published opinions to his credit. Since 2006 Ralph has limited his practice to electronic discovery and IT law related issues and started Akerman’s e-Discovery and IT Law practice group. Ralph is currently the most prolific author of e-discovery in the country, having written three books and three law review articles in the last three years. His books include the American Bar Association’s two best selling books on electronic discovery: Introduction to e-Discovery: (2009); and, e-Discovery: Current Trends and Cases (2008). His latest book on e-discovery will be published by West Thomson in 2010 and is entitled: Electronic Discovery: New Ideas, Trends, Case Law, and Practices. Finally, Ralph is also the principle author and publisher of a popular weekly Internet blog on e-discovery, e-Discovery Team Blog, which now averages over 400,000 visits per year. For Ralph’s full detailed resume please see: RalphLosey.com.

Jason and Ralph have been creating a  movie entitled “e-Discovery: Did You Know?” which will be premiered in it’s final form next weeks at LegalTech New York.  We have seen several ”beta” versions and discussed it before (click here).   It always seems to blow away the crowd.  The guts of the presentation in a nutshell:  e-discovery is expanding exponentially and Ralph and Jason speak in petabytes, and exabytes — not terabytes.

I caught up with Jason and Ralph several times in the last few months and I asked them to put  this “tsunami of e-data” in perspective. 

TPL:    How did the idea of the presentation come to you? 

RL:      This was Jason’s idea, but he had no trouble talking me into it. He needed a technical person proficient at presentations and special effects to implement his idea, and he thought I filled the bill. When I understood what he had in mind, I thought I could probably do it. Besides, we had been looking for an opportunity to do a creative project together where we can both tap into our mutual sense of humor and do something really creative. It proved to be great fun, even all of the research we both had to do on the facts. Although I must add that the technical aspects of putting it together in movie form proved to be much more difficult that I had anticipated. I had to use both KeyNote and Final Cut software, and also ended up buying a new Mac so the final editing would go better. (It doesn’t take much for me to be persuaded that I need a new, better computer!) But still, I ended up figuring out all the technical problems and we both reasonably satisfied with the results. It is also gratifying to see the tremendous response this little six minute video has generated in its two beta trial runs. It is even better now, and we look forward to its “premiere” at Legal Tech NY on February 3, 2010.    Jason and I will play the video before we begin our presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today. Hopefully many of your readers will be able to join us. It starts at 12:15.    After that we will put it up on our web sites for the world to see (and would hope that someone will place it on YouTube). 

JRB:   I first saw the presentation “Did You Know” a couple years ago at a KM Conference in Sydney Australia, where I had been invited to speak.   At the time, I was completely taken in by the mesmerizing facts the little movie presented.  Sometime later,  after speaking and writing a bit more on the subject of information inflation and problems lawyers encounter in search and retrieval, I thought doing a more focused movie on amazing e-discovery facts would be a way to really wake up an audience.    I also knew that I needed help if the movie were ever going to get made.   Having gotten to know Ralph first through his wonderfully creative blog, and then increasingly at conferences together and in guest teaching his course at U. Florida’s law school,  I just knew Ralph was the perfect person to collaborate with.  I also knew I could get him to do most of the work in actually putting this together, once I came up with a good idea and once I supplied him with a few amazing facts.  Ralph likes a challenge, and voila, we now have a movie! 

TPL:    We don’t want to steal your thunder from LegalTech in a few weeks but can you quote us some of the numbers from your presentation? 

RL: Well, one of my favorites is that far more information is stored in computers that has ever been spoken by humankind. 

JRB:   Back in the dark ages – the year 2002 —  I only had to deal with searching through 32 million White House emails from the Clinton Administration in response to discovery requests in the US v. Philip Morris litigation.  Come 2017, that number is expected to grow to 1 billion emails from all prior Administrations.  Whomever is the Director of Litigation at NARA as of that time (and I can assure you it won’t be me), will have that much larger set of issues to deal with, in responding not only to e-discovery, but also to future FOIA requests and other forms of government investigations and inquiries.   

TPL:    These numbers are astounding.  You have any more scary numbers to share? 

RL:      Yes. Many, many more. But as my friends in the military like to say, if I told you I’d have to kill you. 

JRB:    Ralph did a great job of pulling together some astounding information about Google searches and what are staggering amounts of information in various social media.   

TPL:    You chose Darude’s Sandstorm as the musical background.  Is there a “backstory” to that choice? 

RL:      Jason’s choice, but I love it.  Well, I used to love it, but after hearing it 100 times to do the editing, my love for the song faded and my resistance to trance music has increased dramatically. I now seem virtually immune to hypnotism. 

JRB:    After we previewed the movie at the Georgetown conference, one person came up to me convinced that I must secretly hang out in dance clubs.  (I don’t.) Truth be told, I had never listened to “trance” music before – as my musical tastes and expertise stopped around 1975, circa Dylan’s “Blood on the Tracks.”   But I started with the music for the original “Did You Know,” by Fat Boy Slim, and using a combination of the Pandora music genome project  for songs with similar attributes, and cross-checking those with genres of music on You Tube, I narrowed down what had been “hit” trance, techno and house music songs over the past 10 years, and made my recommendation to Ralph.  (Apparently the song has also recently been a hit at certain college football games – go figure.) 

TPL:    Ralph, in a recent post you said “before today’s digital deluge, the last major litigation transformation was the introduction of discovery itself in 1938. Before the 1938 amendments to the Federal Rules of Civil Procedure, “discovery” required special bills, writs, and pleadings”.  Can you give us some more background on the transformation of litigation over the years and how it has morphed into this tsunami of data? 

RL:      Actually, I was not around in 1938, but do have personal experience from the late 1970s forward. Discovery used to be a minor part of a case and most cases were tried before a judge or jury. Now discovery is king and only 2% of the federal cases go to trial. That is a huge change.  Further, requests for production of documents used to be simple work. Any good second year associate could do it. Now, it is very complicated and requires special training to do right.  

Also, I remember the good old days when we wrote on dead trees, called paper. Writings on paper would not throw themselves away, move positions in a filing system, or store records inside themselves (metadata) as to who last read them, changed them, and the like. Now we’ve got ESI that throws itself away and self-replicates. Now, thanks to computers, we also have Billions and Billons more writings than before. For more on that, see our Did You Know e-discovery movie. Because of these many changes in technology preservation has become a huge issue and concern about spoliation and sanctions is present in most large cases.  

In the 1980 and 1990s, up til near the end of the century, spoliation was not a significant part of litigation. Now it can be a game-changer and the first thing we have to do in most every case is send out preservation notices. That never used to be part of litigation practice and for some attorneys still isn’t. When they read Judge Scheindlin’s new opinion, Pension Committee, which I blogged about recently, they are going to be very upset. For this new opinion makes clear that the failure to send out written preservation notices is gross negligence. 

TPL:    Jason, in an article you co-authored titled “Information inflation: Can the legal system adapt?”, you stated “information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed. There has been a civilization wide morph, or pulse, or one might say that information has evolved”.   What is that morph/pulse? 

JRB:   Actually, those words were originally penned by my friend and co-author George L. Paul, a partner at Lewis & Roca in Phoenix, who is also the author of a pathbreaking book entitled “Foundations of Digital Evidence” (with a forward by Judge Facciola).  The concept of an information “pulse” is one that Ralph has touched on above, and that all lawyers of a certain age are (or should be) hyper-aware of, namely, the exponential increase in the volume of potentially relevant evidence, data, information and records that we are all experiencing and must cope with in litigation.   This is largely due to the information being created and received on the highly networked, interconnected world we live in.  Our wired world is something that seems taken for granted by my high school daughter (who is online virtually every waking minute of the day), but is really something very new.    But recall that the Web went from 20 host servers in 1992 to 100,000 in January 1996 – after the introduction of the Netscape browser in August 1995.  Now that’s a pulse!   At the end of my the information inflation article, I quote from the late astronomer John Archibald Wheeler, who said that tomorrow we will learn to express all of physics in the language of information.  Although e-discovery requests haven’t reached the far edges of our galaxy or of the known universe (yet),  information overload and information overabundance on Earth is, I’m afraid, going to be the continued defining characteristic of our age – for lawyers and for everyone, for as far as our crystal ball can see. 

TPL:    At numerous presentations you have both stated that understanding how information is processed throughout its lifecycle is essential.  It’s a process.  And that means change, especially as it relates to electronically stored information.  How does a general counsel start to address these issues? 

RL:      They should start to address these issues by forming an interdisciplinary e-Discovery Team. That is the critical first step and thus is the name of my blog –e-discoveryteam.com. This new Team needs to be properly staffed, funded and coached.  Otherwise it will probably sputter out and fail, or at least, not fulfill its full potential. Once the team is set up, one of the first tasks of the team should be to overhaul the company’s information management systems for ESI, including preservation hold procedures. Then the team should move onto ESI collection procedures when faced with litigation. Of course, to collect, you have to know where it is, and so the map and information management are critical threshold steps.           

JRB:   I can only “second” what Ralph says here.  As a career civil servant, I believe there is a real need for General Counsels or their equivalents in government to empower a select few attorneys across each component of a legal office, to work with CIOs, records officers, and heads of key business units, so as to jointly collaborate on such matters as retention policies, preservation and legal hold policies, IT procurement choices that have litigation consequences, and the like.  The problem is that even in 2010, most organizations lack a person or persons who wish to serve as mediator and translator of the various languages and disciplines involved (i.e., to serve as a Rosetta Stone, translating between communities who approach aspects of information asset management in  very different ways.)   I do have one overarching recommendation to General Counsels, however: find the youngest, just hired lawyer, to lead the effort – she or he should have no conscious awareness of the Apollo space program and men walking on the Moon (if they do, they really are too old to make much headway!)  

TPL:    How can technology help? 

RL:      You have to fight fire with fire. The problems of             too much information, ESI  complexity, dispersion, and chaos are all caused by technology. Inventions got us into this problem and so inventions will have to get us out of it too. Software and hardware are part of that, but only part. We also have to invent new methods which use the software and hardware as tools. We have to use these tools in a smart way. New software systems alone with a new legal gestalt will not work.  

JRB:    Ralph is absolutely right.  In the near term future (ten+ years from now), scientists hopefully will have developed sufficiently robust content analytics and other means of artificial intelligence so as to make us comfortable in automating much of present-day discovery, from preservation to collection to search and privilege review.  There will always be a human element to lawyering, of course,  but we have to move on beyond “everyone being their own recordkeeper” and “searcher” to more automated and sophisticated ways to tackle the growing problem of ESI volume. 

TPL:    Ok, a difficult question.  We have seen how the judges have taken more control of the discovery process, or at least we have heard judges and pundits saying they should.  Do you think the situation is now so overwhelming (data overload) we will see the rules changed this year as a result of the Duke Universirty conference this spring? 

RL:      I doubt it. The rules are not the problem, nor the solution. Education of the bench and Bar are the solution. From that you can infer what the real problem is. 

JRB:    I am not a fan of major rules changes so soon after the 2006 Rules amendments, although we can always do a better job wordsmithing.    I do believe that The Sedona Coference’s Cooperation Proclamation, if rigorously adopted by courts and complied with by litigants, would go a long way towards narrowing problems caused by data overload.  I’m honored to say that I have been invited to take part on one of the Duke conference panel,s and plan on talking about automation and technological solutions to rising e-discovery costs.  I‘m looking forward to the opportunuity to interact with like-minded colleagues on the bench and bar while there. 

TPL:    Jason, Ralph – many thanks for your time.  We’ll see you at LegalTech for the final version of e-Discovery: Did you Know?

RL:      Hope to see you and your readers there. I see your blog, The Posse List, pop up on my iPhone each day, and encourage you to keep up the good work!

JRB:    Thanks Gregory.  I have become a big fan of The Posse List and urge readers of this column to check out the excellent reporting from past conferences. 

Note to readers:  we’ll have a video interview with Jason and Ralph next week from LegalTech New York 2010.  And for those of you attending LegalTech here is where they are presenting:

Monday, February 1, 2010 starting at 3:30pm   Ralph will be on a panel entitled Ask The E-Discovery Doctors and he will be joined by Craig Ball (attorney and president, Craig D. Ball, P.C.), George Socha (attorney and president, Socha Consulting, LLC) and Dean Gonsowski (VP of E-Discovery Services at Clearwell Systems)

Tuesday, February 2, 2010 starting at 12:45pm   Jason will participate in a panel entitled Taking eDiscovery and Compliance to the Cloud.   The panel will be moderated by Deborah Baron (Vice President, Legal & Compliance, Autonomy, Inc.).  Other panelists will include Browning E. Marean (partner, DLA Piper), Wayne Matus (partner, Pillsbury Winthrop), Karla Wehbe (Senior Information Resource Manager, Risk Management, Bechtel) and Brian Weiss (VP eDiscovery & Information Governance, Autonomy) 

Wednesday, February 3, 2010 starting at 12:15pm    Jason and Ralph will be playing the video e-Discovery: Did You Know before they begin their presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today.  Also on the panel will be the Hon. Paul W. Grimm and Jeane A. Thomas, a partner in the Antitrust Group of Crowell & Moring and Chair of the firm’s E-Discovery and Information Management Group and a partner in Crowell & Moring’s Antitrust Group.

Reported by:  Gregory P. Bufithis, Chairman/Founder  The Posse List

In the latter part of the last decade — ok, the fall of 2009 — we completed what we call the trifecta:  full coverage of three of the premier electronically stored information (ESI) and e-discovery events for the litigation industry:  The Masters Conference (click here), the ACC Annual Meeting (click here), and the Georgetown Law Advanced E-Discovery Institute (click here).

As expressed at all of these events we are in “the perfect storm”: ever increasing data volumes; more litigation and government inquiries, and skyrocketing e-discovery costs. 

And if we learned only one thing about the explosion of ESI and corporate data it was this: Craig Ball, Jason R. Baron and Ralph Losey can scare the bejesus out of you.  These guys think in terms of exabytes … and beyond.  Although Jason and Ralph try to make it more palatable by doing it to the tune of Darude’s Sandstorm (click here).   And Craig Ball did assuage our concerns (a bit) by telling us that while we live in an infinite universe it is all manageable.

At all of these ESI events it was stressed — stress being the operative word — that in-house legal departments have been forced to cut their budgets just like their “sisters”, the law firms but with a greatly increased workload.  And the end of 2009 and the beginning of this year saw survey after survey tell us/show us that ESI and e-discovery requests would simply skyrocket.  As one of many examples, see the Enterprise Strategy Group study (click here).

So companies are looking to innovate their way out of the recession, strategically cutting costs, bringing services and processes in-house to gain more control, and doing more than just “quickly brandishing an umbrella looking for a place to seek shelter” quoting the  Enterprise Strategy study.

But as one memorable GC told us at the ACC Annual Meeting in Boston last year “the reality is we need to get control of our ESI — our data data data which seems to be everywhere!! — at the very beginning of our process.  Not just at litigation time”. 

A nightmare.  Or two … or three …. for general counsels everywhere.

And while it is impossible for a general counsel to isolate the effects of software from all the other efforts presumably made to rein in outside counsel and other spends, corporate law departments can control spending via technology.  And there are vendors and technology galore as ESI management, e-discovery, governance, compliance and risk are all melding into one pot.  And those great folks at Gartner have provided us with a nice summary of the e-discovery vendor landscape as we begin 2010 (click here).

So as LegalTech New York comes quickly upon us (click here) we are launching a new series whereby we will post detailed interviews we conducted over the last several months with the thought leaders in ESI management and e-discovery, with links to articles, blog posts and websites, focusing on ESI management and e-discovery for the corporate law department, and the law firm. The series will run up to and through LegalTech, and beyond. We have some 30+ interviews in the queue which will include:  Dean Larry Center, Bob Eisenberg and Nicole Steckman of Georgetown Law CLE; Tess Blair of Morgan Lewis; Jim Moore of Merrill Corporation; Ron Friedmann of Integreon; Deborah Baron of Autonomy; Tim Williams of Index Engines; Steve d’Alencon of CaseCentral; Nigel Murray of Trilantic; Virginia Henschel and Rob Robinson of Applied Discovery; Mary Mack of Fios; Adam Cohen of FTI Technology; Chris Dale of the eDisclosure Project, plus many, many more.

Our intent is to provide a background in finding potential cures for the ESI/data management nightmare as seen through the eyes of the major players in ESI management and e-discovery:  what technology is out there, who is out there, how do you sort through all the technology, procedures, best practices, etc.  Most of these folks will be presenting and/or exhibiting at LegalTech in a few weeks so we’ll also tell you where you can find them at the show. 

And a bit later in this series we will have interviews with Jason R. Baron, Ralph Losey and Craig Ball who will put all this tsunami of “data! data! data!” in perspective for us.

But we start off this series with some interviews with some extraordinary companies that have recently come onto the ESI/e-discovery scene.  First up:  an interview with Andy Wilson, co-founder of Logik.  For our full interview with Andy click here.

For all interviews and posts in this series click here.