19 September 2010 — As we have stated numerous times in our ediscovery/data management “thought leaders” series (click here)  we face a tsunami of data.  For a good discussion of how this all evolved read our interview with the “Master Sensai E-Discovery Gurus” Ralph Losey and Jason R. Baron (click here)  and see their brilliant presentation Did You Know which you can access on YouTube (click here).

Yes, the amount of data is staggering.  As a further recent example, an August survey conducted by Symantec revealed that just backup tapes alone are storing documents on indefinite hold in enterprise libraries that would stretch to the moon and back 13 times with enough left over to circle the globe seven times (for the Symantec survey click here)    And according to the study storing all this data makes it harder to find what you’re looking for. It is now 1,500 times more expensive to review data than it is to store it, Symantec estimates. Backup windows, meanwhile, are so overloaded that weekend backups are taking more than a single weekend these days.

So, with the accelerating increase in electronically stored information along with the changes in the Federal Rules of Civil Procedure and the courts (Federal and state) tsunami of decisions, how do you control and manage the data?  Technology.  As a result, lawyers must become technologists. 

And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda.

Earlier this year Donna Seyle posted an article (you can read it on JDSupra by clicking here) in which she said lawyers must “embrace technology”.  While her article was geared toward the law firm and innovation she addressed the existing situation for all lawyers:  the massively influential rise of social media marketing, blogging, networking, data management, etc. demands it.  And no more so than those of us involved in e-discovery.

It is why we launched The Electronic Discovery Reading Room (click here)  to provide Posse List members a “go to” site which (hopefully) provides the information to learn about the tech behind e-discovery.  It is why we set up two job listservs that post jobs for lawyers needed in various legal technology areas and legal project management (to get on any of our lists follow the instructions posted on our site (click here).

You can do simple things like working your way through the Sedona Conference E-Discovery Glossary (now in its third edition) which is the most comprehensive e-discovery we have found.  It provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.  You can download it for free by clicking here. 

Or look at our weekly “Top 10 … plus more” list of interesting blog posts, and views on electronic discovery related issues and other tech developments from the past week (for our latest click here) and our “Vendor Clips” which provides vendor views and industry news from electronic discovery-centric vendors and commentators (for our latest click here)

And go to a legal technology conference near you.  All offer free admission to the exhibit hall (those that have them) where you can meet technology vendors, see the technology at work behind e-discovery, etc.  Many allow free access to students or limited 1-day passes for free admission.  We attend about 15 conferences a year in the U.S., and about 8 in Europe and Asia.  We meet vendors, gain info — and sign up vendors who post jobs on our job lists.

Note:  we receive media credentials from each conference which allows us to attend these conferences for free.  We then conduct interviews, attend seminars, etc. and post our coverage on this site.  If you’d like to assist The Posse List in covering conferences send your resume to media@theposselist.com

There are conferences all over the country and the world.  For example check out this list (with thanks to Rob Robinson of Orange Legal Technology who provide us an updated list on a weekly basis):

eDiscovery Events

SEPTEMBER

IBA: 14th Annual Competition Conference
September 17-18, 2010
Florence, Italy
Click here for more information.

IQPC: 8th Annual Cold Chain Distribution for Pharmaceuticals
September 20-23, 2010
Philadelphia, PA
Click here for more information.

Canadian Forum on Court Technology
September 22-23, 2010
Ottawa, Canada
Click here for more information.

ALM – Virtual LegalTech
September 23, 2010
Online
Click here for more information.

Second Annual Intermountain eDiscovery Conference
September 24, 2010
Salt Lake City, UT
Click here for more information.

Argyle Executive Forum: 2010 Chief Legal Officer Leadership Forum
September 29, 2010
Chicago, IL
Click here for more information.

OCTOBER

The Masters Conference
October 4-6, 2010
Washington, DC
Click here for more information.

2010 NFPA Annual Convention
October 7-10, 2010
Cherry Hill, NJ
Click here for more information.

Gartner Symposium: ITxpo 2010
October 17-21, 2010
Orlando, FL
Click here for more information.

EDRM Midyear Meeting
October 19-20-2010
St. Paul, MN
Click here for more information.

DRI Annual Meeting
October 20-24, 2010
San Diego, CA
Click here for more information.

The Sedona Conference:  Patent Litigation XI
Oct 21 – Oct 22, 2010
Phoenix, AZ
Click here for more information.

ACC Annual Meeting
October 24-27, 2010
San Antonio, TX
Click here for more information.

2010 Techno Forensics & Digital Investigations
October 25-26, 2010
Gaithersburg, MD
Click here for more information.

Sedona Conference, Antitrust Law & Litigation XII
October 28-29, 2010
Phoenix, AZ
Click here for more information.

NOVEMBER

InfoSecurity – Netherlands
November 3-4, 2010
Utrecht, Netherlands
Click here for more information.

InfoSecurity – Russia
November 17-19, 2010
Moscow, Russia
Click here for more information.

Gartner Identity and Access Management Summit
November 17, 2010
San Diego, CA
Click here for more information.

Gartner Data Center Summit
November 22-23, 2010
London, UK
Click here for more information.

DECEMBER

Gartner Data Center Conference
December 6-9, 2010
Las Vegas, NV
Click here for more information.

ALM – Virtual LegalTech
December 14, 2010
Online
Click here for more information.

As Ron Friedmann has noted, one of consequences of the paradigm shift in the legal industry is that “what is bad news for law firms could be good news for legal technology managers and legal technology professionals.”    Law departments must act to reduce legal spend.  If GCs don’t, CFOs and CEOs will step in.   Law firm have lost pricing power and face a battle for market share.  Winning that battle will require that firms offer clients more value.  To do so, firms will get serious about process improvement, project management, outsourcing, and alternative fees.  

As we have noted in numerous posts, law firms must deploy/have been deploying new technology and new expertise but also using  old technology more effectively.   This has required more business and technology professionals, in temporary/contract capacities.  And the existing contract attorney base — and its newest members — provide that. 

In the last year we have seen a spike in our membership coming from ex-BigLaw associates, former trial lawyers, government lawyers, forensics consultants, and others.   And more contract attorneys have moved into project management roles and information technology roles. 

And it is the reason that our job posts for substantive temporary legal work has increased dramatically.  For those on our job lists, you know that the legal recruitment industry is characterized by an enormous surge in demand for temporary legal professionals.  Our job lists have greatly expanded in both geographic range and subject areas.   

In spite of all the challenges we face in today’s job market, we are working in a part of the legal industry that is unusual because it is open to sharing and collaboration, through publications, quality conferences, and trade shows, and peer networking organizations.  Use these resources.   think outside the box.  Take part.

The Morgan Lewis eData team and Recommind are sponsoring what looks to be a very informative live seminar on March 18th (next Thursday) at 4:00pm in the New York offices of Morgan Lewis.   The seminar will focus on successfully leveraging technology to improve early case assessment (ECA), preservation, collection, and document review.

For the Morgan Lewis team:  Stephanie “Tess” Blair and Denise Backhouse

For Recommind:  Craig Carpenter

Both Morgan Lewis and Recommind are powerhouses in the e-discovery area.   Morgan Lewis and Tess Blair (a partner in Morgan Lewis’s Litigation Practice and leader of the firm’s eData Practice) were doing e-discovery before it had a name.   And Recommind and Craig Carpenter (Vice President of Marketing for Recommind who oversees all aspects of marketing at Recommind) have become the leaders in search-powered information risk management (IRM).

We profiled Tess, Denise and Morgan Lewis in an extensive interview (click here for the full interview), as well as Craig Carpenter and Recommind (click here for the full interview).

Seats for the seminar are limited so reserve as soon as possible.  To register click here.

This seminar will provide best practices and guidance for complex litigation and regulatory investigation responses. Get a firsthand look at customer case studies that demonstrate the power of sophisticated techniques such as concept grouping, advanced analytics, pre-collection ECA, and computer-generated review (i.e., Predictive Coding™).

Reported by:  Gregory Bufithis

InsideLegal counted 96 eDiscovery/litigation support vendors present and as they said — and we agree — everybody’s theme was predictable, up-front, and simple to understand pricing.   Makes sense: increased competition in the e-discovery space, smaller budgets all around. 

The two “big” technology launchs were: 

1.  Thomson Reuters Legal’s launch of WestlawNext, the self-proclaimed “next generation in legal research”.  There was a major press conference, and first-class multimedia show which touted “the most comprehensive and expensive R&D project in the company’s legal history”. 

2.  LexisNexis announced their tie-up with Microsoft. Their new offering, LexisNexis for Microsoft Office, aims to “empower lawyers to search and find relevant research in the Office applications they already use”. 

For a good “starter” review click here.

Everybody seemed to be selling “pre-review data culling/processing” as part of their ECA package  and they all seemed to be hawking per-gigabyte contract review. As the 451 Group mentioned (link below) all the ECA product releases in the last year seem to have made it a de facto step in the ediscovery process, the only argument remaining is how early it should occur – as early as the initial data gathering at identification and collection, or just before review but after processing?

The 451 Group review does a great job reviewing three trends: price sensitivity, new software releases, and changes in the nformation management reference model.  For their full blog post click here.

And for a great analysis of the vendors that offer all-in-one e-discovery software that sweeps from the far left to the far right of the EDRM see Sean Doherty’s post for law.com (click here). 

We spoke with 20+ software and service providers at LegalTech (including briefings we were invited to) and we attended the EDRM luncheon where we spoke with Sandra Song of H5, one of the co-chairs of the group tasked with building the Information Management Reference Model (IMRM).  For some background click here and click here.  We’ll have an in-depth interview with Sandra in the coming weeks about the model, and about her company H5.

A major trend we see:  multilingual software and service has risen and will continue to rise in importance.   Many firms are now recognizing the need to localize applications and content across cultural and geographic boundaries. Though the technology has been around for a while to enable that, a mindset shift is propelling the requirement forward.  It is the recognition that employees and partners operate more effectively in their native language rather than using English as a second language.   But it has an ecoonomic bend, too:  the potential to sell outside of the saturated English language market.   The Internet era, rather than push us toward the goal of English as the lingua franca, has given us the tools to revitalize and re-recognize native tongues.   It the reason we have seen a proliferation of foreign law web sites, and foreign law social media sites.

And it is why we saw a doubling of the vendors offering foreign language software and services and vendors who are integrating non-English language translation into document review workflows (as an example see the Merrill Corporation press release here).   And it explains the spike in Asian e-discovery vendors at LegalTech as Asian-based e-discovery soars.  

Part of it is outsource/cost driven.  In America, Britain and Canada, most commentary on legal process outsourcing refers to providers in India, where English is commonly spoken and the common law prevails. But for in-house counsel whose primary work language is French or Spanish, other countries contend for the work.  For example, as explained in the current issue of European Lawyer , “outsourcers are looking at other regions, such as Morocco and Romania to cater for the French, Italian and German markets and where a full-time equivalent lawyer will typically cost one-fifth of what it does in those European jurisdictions.”  The search for low-cost providers of legal-related services extends to another common language:  “They are also beginning to target Mexico, Guatemala and Honduras for the Spanish market.”

We’ll explore this trend in more detail in a later post when we launch our foreign language e-discovery site.

Ron Friedmann is Senior Vice President of Marketing for Integreon.  He is a leading authority on practice support for lawyers.   Ron managed practice support at then Wilmer Cutler (now WilmerHale), was CIO at Mintz, worked for two legal software companies, and ran Prism Legal Consulting.  He is a Trustee of the College of Law Practice Management and on the Board of Governors of the Organization of Legal Professionals.  Ron has a JD from NYU and BA from Oberlin College.  

Integreon is well known for its e-discovery, managed document review, legal process outsourcing (LPO), research and knowledge support, and middle office business services for law firms, corporations, and financial institutions.  Beyond marketing, Ron helps law firms and law departments improve efficiency and effectiveness using Integreon services. 

But it is through his blog, Strategic Legal Technology, that Ron is best known.  Ron has blogged since 2003; in 2009, the ABA Journal selected his blog for its Blawg 100, the ABA’s annual list of the best of the blawgosphere.  The choice was a good one: Ron is as insightful as he is prolific.  His blog is widely read because Ron writes with two decades of experience at the intersection of law practice, law business, outsourcing, e-discovery, knowledge management, and technology.  

We caught up with Ron at The Masters Conference and then at his D.C. area office.  

TPL:   Ron, you have written extensively on the consequences of the paradigm shift in the legal industry.  In a recent blog post you said, “what is bad news for law firms could be good news for legal technology managers.”  Can you elaborate? 

RF:     Law departments must act to reduce legal spend.  If GCs don’t, we may see CFOs and CEOs step in.   So the new normal for law firms won’t be the same as the old; the time for minor adjustments has passed.  The legal market will likely stay flat and see downward price pressure.  Consequently, firms have lost pricing power and face a battle for market share.  Winning that battle will require that firms offer clients more value.  To do so, firms will get serious about process improvement, project management, outsourcing, and alternative fees.  This in turn means that firms must deploy new technology and use old technology more effectively.  This will open in a new chapter — maybe even new volume — in legal technology. Getting there will require more business and technology professionals.  

TPL:   A recent Hildebrandt article discussed the fact that we need to be wary about how we measure all of this stuff.  For instance, the “demand” for legal services — as currently measured in the legal industry — is usually discussed in terms of either lawyer hours, or legal fees, both of which can be relatively easily measured and captured.  But clients don’t “demand” lawyer hours — they demand solutions to legal problems (just as consumers don’t “demand” auto worker hours — they buy a car).  

RF:     Exactly.  The market finally recognizes that “inputs” – hours billed – don’t equate to “outputs”, that is results.  Good legal outcomes depend on smarts and repeatable processes more than on sheer number of hours.  Where bulk work is necessary, clients want more cost-effective ways to do it. As a result, legal process outsourcers (both domestic and offshore) now handle growing volumes of routine work formerly done in-firm by lawyers and legal staff.  Firms themselves are reengineering work processes to reduce inefficiency and cost.  This trend will accelerate as fixed fees and other risk sharing alternative fee arrangements spread.  

TPL:   So you see this pretty much as a golden opportunity for vendors? 

RF:     Yes.  And it especially creates opportunity for Integreon’s legal process outsourcing (LPO) service.  A recent article in The Economist noted that LPO is booming.  Law firms can now parcel out more of their basic work so they can focus on their core strength of legal advice and strategy.  

TPL:   We are going to post a lengthy piece on legal process outsourcing during LegalTech and we’ll cover Integreon’s services then, so we’ll hold off on those questions right now.  This is an area that most affects our contract attorney membership. 

RF:     Ok, but let me just make a short comment now.  Legal process outsourcing may very well see a watershed year in 2010.  Since the Rio Tinto law department announced its LPO initiative in June 2009, the U.K. legal press has seen a flurry of LPO announcements.  There is less PR in the US, but many private conversations are taking place. 

TPL:   Fair enough. I do want to discuss LPO with you in more detail at LegalTech.  But one other relatively new development has an even more direct affect on the contract attorney market and we have discussed it many times: the rapid move toward predictive coding technology and machine review.  In 2009 saw two “first pass” document reviews that actually skipped human review and were done by machine.  What are your thoughts on predictive coding? 

RF:     I have been passionate about improving the document review process for two decades.  That’s a big reason I joined Integreon – it shares that passion.  Automation is the key to improvement, so I’ve thought about the role of computers a lot and my thinking has evolved.  

We will see computers play a bigger and bigger role in first-pass document review, at least for responsiveness.   This role can range from culling documents, to prioritizing them, to automatically (or predictively) coding them.  What’s driving this? 

As a society, we simply cannot afford to pay people to look at every document.  As a profession, we must recognize that human review as the “gold standard” makes no sense.  Both anecdotes and studies suggest that human review is not nearly as consistent or reliable as lawyers typically assume it is.  

Computers turn out to be more reliable and consistent than people – no surprise.  But it is not so much the particular software that drives this conclusion as it is the combination of technology, process, and training. 

My blog posts on e-discovery and litigation support show the evolution in my thinking.  In July 2003, I started with Thoughts on Full Text Retrieval, where I questioned the value of concept search versus Boolean search but concluded that the choice is an empirical, not theoretical question.  As volumes grew, technology improved, and we gained experience, my views shifted.  By November 2009, I concluded that the Choice of Concept Search Tool in e-Discovery May Matter Less Than You Think (November 2009).  In that post, based on dialog with two leading EDD experts, Tom O’Connor and Herb Roitblatt, I posited that the semantic engine is less important than the overall process, which includes training and how the tool is used. 

In sum, three trends – (1) pressure to spend less, (2) improvements in process and technology, and (3) growing recognition of the limits of human accuracy – will converge and lead to more “predictive coding”. 

TPL:   OK, I see you’ve really thought about this.  So where do you come out on early case assessment (ECA) — winnowing relevant data down to reduce the number of documents to review — versus predictive coding?  Was ECA the mantra in 2009 and predictive coding the “new new thing” for 2010? 

RF:     I don’t draw that big a distinction between ECA and predictive coding.  The goal of both is to reduce the volume of documents that humans must review.  

ECA uses computers to winnow the number of documents lawyers must review.   It uses several techniques, for example, selecting custodians, narrowing data ranges, applying keywords, and categorizing and prioritizing documents.  ECA allows for strategic decisions, such as settle or litigate, before incurring the significant cost of substantial discovery.   

The goal of predictive coding is to use computers to substitute software judgment for human judgment.  That sounds quite different from ECA but I think both are points on a continuum.  Most predictive coding systems require human reviewers to train and tune them.  And most lawyers will still want to vet predictive coding with humans, at least on a sampling basis.  So I focus on the number of documents ‘humans must touch’ rather than ECA versus predictive coding. 

The two share other similarities.  Both can be used to prioritize documents for review.  Both require maintaining “defensibility” – can you show in court that you have taken all the appropriate and reasonable and steps and documented them carefully.  

TPL:   And what’s your view of the computer assisted review study by Patrick Oot, Herb Roitblat, and Anne Kershaw — “Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review “?  Do you think the technology is accurate enough to take the place of contract reviewers and — more importantly — do you think the technology is fully defensible and do you think judges have demonstrated that they consider automated review acceptable? 

RF:     I read the study and blog posts about it and am still mulling the implications.  At minimum, it advances the discussion about humans versus computer review and shows the value of a controlled, statistical approach.  

It should alert lawyers to the notion that humans are not all that accurate and computers are typically more consistent.  My hope is that it fosters a dialog on the issue and perhaps even helps shift the burden of proof.  Imagine going into court and having to explain why you used an army of lawyers instead of software! 

But I don’t think the study sets up a replay of John Henry versus the steam engine.  That is, it’s not man versus machine; rather, it’s how do we integrate the two in a cost-effective process that holds up both to judicial and statistical scrutiny.  And by the way, I don’t think lawyers or judges give statistics sufficient consideration.  

So, picking up on the ECA and predictive coding themes, I don’t think technology will eliminate review lawyers.  I do think that over time, as processes improve and as courts gain experience, computers will substitute for increasing amounts of contract lawyer review time.  I see a future where armies of contract lawyers as the norm will be replaced by much smaller teams of specialized review attorneys.  Whether that specialized role is contract or full-time is hard to say. 

Though I think automation is defensible, we are at risk for bad rulings, either because a party automates poorly or because, in spite of doing it well, a judge just does not understand the process. 

TPL:   So we are headed down the path to where machines can be statistically proven to be as accurate as human reviewer?  Is the technology getting to the point where we can also winnow out the eyeballs — contract attorney reviewers?  No room for a human element and perspective? 

RF:     I’ll repeat what I said above: it’s man and machine, not man versus machine.  I expect that computers do assume a larger and larger role in doc review.  Society and litigants will suffer if that’s not true. 

For the foreseeable future, however, it’s hard to imagine eliminating all human review.  As technology and process improve, I do think it is likely that the ratio of reviewers to gigabytes will decline.  That is, over time, the human effort will be less focused on what I call “bulk review.”  Instead, humans will likely focus on upfront work (ECA and “system training”), on vetting and tuning computer processes, and on reviewing results to refine systems. That’s why we’ll likely see the rise of specialized review attorneys, lawyers who understand law, technology, process, and statistics. 

TPL:   We recently attended an all-day conference in Washington, DC sponsored by Apple and saw some of the work being done by Google on auto-categorization and auto-coding.  Developers told us that Microsoft is also in the race.  Do you think it is just a matter of time before goliaths like Google and Microsoft — with multi-billion dollar budgets — jump into auto-categorization and auto-coding and wipe out the majority of vendors? 

RF:   As I mentioned above, I think the choice of tool matters less than the overall process.   Unless Google or Microsoft come up with a break-through in computational linguistics (the math behind conceptual search), it’s hard for me to imagine a new search tool vastly superior to what’s available today.  I’m not aware of any algorithmic breakthroughs in the last two decades so I don’t expect any soon.  The breakthrough Google made was using web links as “voting engine” – an approach that does not work for corporate document collections, which are not linked. 

Of course, either company could likely spend its way to a big EDD market share, even with “me too” technology.  That does not appear to be their strategy and EDD is small beans compared to web searching or software, so it seems unlikely to me. 

TPL:   And what do you think is at the forefront of the discovery process, the most important thing, the biggest challenge? 

RF:     I think the biggest challenge and opportunity is creating a consistent, reproducible, documented, and defensible approach that integrates the best of technology and standard processes.  The challenge is not who has the best algorithm, the best software, or the best reviewers.  Rather, the challenge is putting algorithm, software, and reviewer together into an economically affordable, statistically sound, and judicially defensible process.  And that must be done in a consistent, repeatable, industrially controlled process.  Think workflows, documentation, training, metrics, formal quality control, feedback loops, sampling, etc. 

Oh, and let’s not forget that the end-game is not doc review and defensibility.  The end game is telling the best story in litigation, or avoiding needless litigation when a settlement might make more sense.  So the challenge for the legal market is to re-focus from discovery to fact-finding and story telling.  With the right process, lawyers will be able to stop worrying about doc review and possible sanctions and instead focus on figuring out who said what and when and interpreting the facts as favorably as possible.    

Discovery used to be a side show and moved into the main ring in the last decade.  I don’t think that will last. 

TPL:   Ron, we greatly appreciate your time.  We’ll chat more at LegalTech. 

RF:     I appreciate the opportunity to share my views.  And more importantly, I think it’s great that the Posse List has become a key voice in the discussion around e-discovery, bringing together interviews, news summaries, and resources that advance the field and help contract lawyers find work. 

Note to readers and attendees of LegalTech in New York:  On February 1, 2, and 3, in New York, as part of the Legal Tech show, Integreon is exhibiting at booth 324 (first level of exhibits).  Also, many senior Integreon EDD and middle office outsourcing professionals will be at Legal Tech.  If you would like to connect with Ron or anyone else from Integreon, during LegalTech, contact Ron at marketing@integreon.com.

The Masters Conference (click here) will be held on October 13th and 14th in Washington, DC.  The Masters conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing the information life cycle.

The theme for this year’s conference, “Global Corporate Change – Navigating through Discovery, Risk and Security,” focuses on how corporations can protect themselves against the risks associated with high-profile scandals, security breaches, IP threats, increased litigation, audits and regulatory investigations.

The Conference was created in 2006 to provide an opportunity for advanced practical education for corporate counsel and law firms.  Its mission is to have speakers, product and service providers, and attendees work together:

*  The speakers, leaders in their fields, provide education on the issues and how they translate into practice.

*  The providers develop solutions to fit the needs arising from corporate records management and litigation.

*   The attendees contribute real-world experience.

To make this work, the conference is smaller and more intimate than many of the other conferences in the industry. The organizers strive to create interactive sessions where the speakers interact with the attendees.   There is also a easier opportunity to speak with providers that offer clients their products and services that meet their needs, and for providers to have an opportunity to interact with the educators, speakers, and attendees. 

We have expanded our coverage of these conferences (LegalTech, ILTA, the ILSL, the IQPC series, etc.) to provide information for our diverse membership: contract attorneys, law firms, corporations, e-discovery vendors, bar associations, legal media, etc.

But our focus is on the growing opportunities for our core membership (contract attorneys and temporary attorneys) so they know the ins-and-outs of electronically stored information (ESI) because:

1.  e-discovery vendors continue to move into the “right-side” of the EDRM, picking up document review and production; and

2.  corporations continue their trend to by-pass law firms and go directly to these e-discovery vendors to manage their ESI needs as companies, desperate to save a buck or two, secure more ownership over the e-discovery process to enhance control and reduce costs.  Leveraging in-house technologies and deploying early case assessment methodologies results in data reduction strategies.

It  means opportunities for Posse List members beyond the “click click click” of document review as demonstrated by a growing number of e-discovery vendors, in-house legal departments, and other entities who have posted projects and positions on our job lists that seek a well-founded e-discovery background.  It is a trend we have cited with by such reports as those from the Sapire Search Group and Rees Morrison.

So we cover these conferences, and we continue to expand our Electronic Discovery Reading Room (click here) to provide as many “primers” and background briefs as we can on ESI management and e-discovery.

And all of this segues into the area of governance, risk and compliance (GRC).  This is not a “new new thing” and has been chronicled for well over the last year and half.  This convergence of e-discovery and GRC technology and management is reshaping the industry.  It the major focus at this year’s Masters Conference.

A special thank you note:  It is a daunting task for any organization to organize and launch a program of this magnitude.  Luckily they have Sasha Hefler, President of the Masters Conference (click here) who is responsible for a million things including: the list of speakers and subjects; press releases; event sponsorships; public relations; webinars; testimonials; interviews; white papers, etc., etc.   

And despite this awesome “to do” list she has gone beyond the call of duty to help The Posse List.  We are fielding 3 staff members and several bloggers at the conference and she has found time to process our registrations and provide all the back-up material we requested on speakers and vendors, etc.

We’ll have a chance to interview Sasha during the conference.  For now, some of the sessions we expect to cover to give you a flavor of the conference:

When Good Faith is not Good Enough

The global economic crisis is making its mark: a rising tide of corporate litigation, consolidations and mergers, and some of the century’s most sweeping changes to corporate governance. Regulators are promising hard hitting new rules and hefty sanctions impacting all sectors. Boards of directors, customers, courts and regulators are taking notice and demanding action.   As legal departments and their IT brethren are struggling to bring information governance and eDiscovery in line with tightening rules and regulations, the exponential growth of geographically dispersed information from a raft of data sources presents them with a daunting challenge. Traditional policies and methods for governance and discovery of electronically stored information are falling short, yet organizations must comply or risk fines and sanctions that put shareholder value, public confidence and brand integrity at risk.  The legal and regulatory environment surrounding information governance is evolving in three phases. This panel will discuss the opportunities and risks affecting legal and compliance officers, trends in case law and rules, and best practices for managing the disciplines of information governance and discovery through the evolution.

E-Discovery: Why Most Enterprise Implementations Fail to Make the Grade

It takes just 10,000 employees to generate more electronic documents in a year than is contained in the entire Library of Congress. It is easy to see how archiving e-mail and files for large enterprises can be a daunting challenge. This session cuts through the vendors’ marketing brochures to identify the real problems, formulate the hard questions to ask vendors and outline ways to evaluate and compare solutions to fit your needs. Armed with this knowledge, your chances of implementation success can be significantly improved.

Early Case Assessment: Looking to the Future – From Early Assessment to Early Awareness

ECA technology is poised to radically change how companies approach e-Discovery.  However, those who view ECA as only a cost-saving solution for eDiscovery have taken too narrow a view of its application. The distinguishing capability of ECA — rapid search & intelligent classification of vast information stores — when combined with effective processes, will enable corporations to adopt innovative strategies focused on discovery, data privacy, data loss, general records & information management as well as cost reduction.

Enabling Transformative Technologies – The Science &Engineering and the Law

The law has not caught up with emerging technology development modalities, with costly consequences.  Changing this state of affairs requires better understanding of how transformational technology advancements will be enabled,  to anticipate such trends and create the appropriate legal infrastructure.  This lecture will focus on better understanding how the two major recent trends of globalization and the increasingly multidisciplinary nature of technological innovation require for more synergistic partnerships between industry and academe.  The efforts to solve the most challenging problems facing us –whether related to energy (oil, nuclear, solar, wind), critical infrastructure systems (electrical power grids, transportation systems), homeland security, global communication systems, etc — would benefit from such interactions.  Topics covered will include emerging scientific, technological and policy directions; guiding principles; types of interaction and collaboration; opportunities, constraints and expected outcomes.  There will also be an assessment of new processes and frameworks catalyzed through government involvement.  All lawyers can better counsel their clients, particularly in industry, when they have a good understanding of where technology and technology development modalities are heading, and how such trends can be advantageously leveraged.

E-discovery Evolution and Revolution: an Early Case Assessment Movement

The high cost of traditional e-discovery methods and the economic downturn have made it difficult on the corporate counsel and IT staff of enterprise organizations when they respond to legal discovery requests. The costs associated with gathering and processing electronically stored information and ensuring that the complete set of evidence is included in the response to a discovery request have become significant  problems for many organizations.  This has led many in these organizations to question the validity of the historical approach of collecting everything associated with a presumed set of custodians and sending all that data out for processing. The IT manager and the corporate legal department are both being asked if there is a better way to identify the relevant ESI for given matters and to produce it locally (inside the corporate security perimeter), sending smaller more relevant sets out for eventual attorney review. This panel discussion will focus on new Early Case Assessment (ECA) approaches that can be taken within the corporate security perimeter to produce the relevant material for litigation matters without incurring high discovery and review costs associated with the “over-collection and processing” problem encountered when only outside vendors are used. Proactive methods for discovering content rapidly and identifying irrelevant content that need not be produced will be discussed.

Beyond E-mail:  Legal and Practical Implications of 21st Century ESI

Just when lawyers have become comfortable advising clients about how to handle traditional forms of ESI under the 2006 amendments to the Federal Rules of Civil Procedure, new media has emerged that present increasingly complicated and far-reaching strategic and practical challenges.  E-discovery is no longer just about email, electronic documents and databases located on company servers.  Instead, law and technology intersect over dynamic ESI, often times stored beyond the direct control of the user.  Applications that foster social communication (Facebook, Twitter, LinkedIn, and the various software supporting blog publications) and multimedia sharing portals (YouTube, Flickr, Picasa) qualify as ESI under Rule 34.  And it’s not just tech-savvy individuals making use of new media.  Businesses are using web-based project management tools (Basecamp, EtherPad), social enterprise software (Jive, Socialtext), and cloud computing (GoogleApps) along with digital voicemail, IM and off-site data archiving to facilitate productivity and reduce corporate expenditures. On top of all that, we are on the verge a revolution in e-mail technology that will change the game completely… again!   In litigation, how should lawyers approach collection, preservation, processing, review and production of 21st century media?  What sources must parties disclose in discovery?  Is new media the next treasure-trove of discoverable potentially relevant information in terms of both tangible data and facts?

Litigation Readiness and the Left Side of the EDRM Model – Decreasing Discovery Cost and Risk

Document review can account for more than 70% of the total cost of e-discovery.  This panel will discuss reducing the cost of e-discovery and document review by focusing on litigation readiness and the strategic application of technology early in the process in order to reduce the size of the electronic evidence corpus.

Driving Down Electronic Discovery Costs:  The Challenge of Bringing Electronic Discovery Inside the Corporation

Corporations are striving to reduce overall litigation costs by assuming control over not only the decision making, but the harvesting and processing of electronic data.  Decision makers must take into account not only technology purchases, but process protocols and talent to function successfully as the environment changes.  Attendees will engage in a frank discussion among industry peers, learning the pitfalls and opportunities of bringing more and more inside the corporate infrastructure.  Attend this session to hear the panelists discuss which comes first, technology, process or people? 

US-UK Judicial Panel on E-Discovery

Although the US leads the world in both the legal and technical aspects of electronic discovery, there is a general acceptance that there is much to do to make this aspect of litigation an efficient and cost-effective component of case management. Although the essential difficulties are the same in England and Wales, the approach taken is a slightly different one, and there is growing recognition that the two jurisdictions have something to learn from each other.
 
Chief US Magistrate Judge Paul Grimm and US Magistrate Judge John Facciola are the undisputed leaders of judicial thought in this area in the US. Their counterparts in the UK are Senior Master Whitaker and His Honour Judge Simon Brown QC. These four were brought together, with Chris Dale of the UK based e-Disclosure Information Project, at a successful panel in London in May 2009, moderated by Patrick Burke, Assistant General Counsel at Guidance Software. The Masters Conference is reconstituting the panel and you will have the opportunity to hear the best thinkers from both sides of the Atlantic talking about the differences, the commonality, and what each can learn from the other in this changing area.

We will have full coverage including posts and interviews.  Please bookmark this page.

Two of the main topics at the IQPC Conference in Brussels last week on e-discloure (with much written of late in the e-discovery blogs) has been concept searching and “predictive tagging”.  But one vendor appears to be way ahead of the curve: Recommind.   We had the opportunity to interview Hartwig Laute, Director European Operations and Jason Robman, Corporate Counsel for the company.

What is concept searching?  It is a method of searching files not based on keywords, but on the subject matter of the email, document, paragraph, or sentence.  It is promoted by a number of vendors each having its own name.  For some overviews on concept searching click here, here, here and here.

Recommind is a 10-year old company based in San Francisco, California with offices throughout the United States, in Germany and London.  Recommind’s pioneering document review, analysis and production product, Axcelerate eDiscovery, is 2 years old.  But Axcelerate eDiscovery is different than other document review software.  Unlike other systems, which can only place documents found by basic keyword search into reviewer-created categories, Axcelerate eDiscovery automatically categorizes documents into computer-generated “buckets” (discussed above in the links on concept searching) based not just on keyword frequency but on conceptual meaning as well – irrespective of individual keywords. And the software doesn’t just dump documents into buckets, it actually prioritizes them within each bucket – such that each document is neatly ordered and prioritized based on its content, irrespective of individual keywords. The system also automatically identifies key documents, people, phrases and concepts of interest.

Hartwig put the software through its paces in a demonstration for conference participants which kept the crowd riveted.  Using a data set from the Enron investigation review, Hartwig showed how the software could take a concept search on the term “brownout” (as you will recall a major count against Enron was its manipulation of energy markets to earn subsidies; for more click here).

Hartwig showed how the system could “learn” the context of the topic “brownouts” by taking some example documents containing the term and letting the system in a short training phase “understand” what the underlying meaning was. In the live presentation, the system returned a number of documents which matched the topic of the initial documents perfectly. With the trained topic (which took Hartwig less than 5 minutes to train) the system can now – for each document to be reviewed – tell the reviewer whether it belongs in a specific category, and to what extent (i.e. its priority within the category). This suggestion is what Recommind calls predictive tagging and it really makes a difference.

The system not only suggests buckets but also highlights what was relevant to the search by color coding words (for instance yellow for the culling terms and brown for a word relevant to the topic).  It literally “suggested” topics and categories to each document and puts them in boxes where they belong.  Entire document sets can also be filtered down by document type, language, content, party, timeframe, individual, and many other elements to quickly find relevant documents.

And while Axcelerate eDiscovery is an impressive end-to-end review platform, with built-in processing, deduplication, filtering, review, analysis, predictive tagging and production capabilities, it is Recommind’s new product, Insite Legal Hold, that is the real star for enterprises to be proactively or reactively eDiscovery ready.  It is a remarkable early case assessment (ECA) product providing processing, culling, collection and hold.

 As explained by Jason Robman, Insite Legal Hold indentifies, “crawls” and indexes information from the many data sources a company has. From these indices, a company can conduct “live” and in-place exploration of data before applying a legal hold to quickly and efficiently locate and preserve potentially relevant data.

Recommind clients range the whole gamut from law firms to corporations to government entities. In his presentation, Hartwig showed us the Bundeskartellamt use case and explained how and why the German Cartel Authorities rely on Recommind technology.

We will have more about Recommind and its break-through technology in a few weeks.  It is part of our new series of  profiles on major players in the e-discovery/e-disclosure market. In the meantime, those interested in learning more about Recommind, their technology and their thought leadership via their risk monitoring center and resource library center can visit:  www.recommind.com

The industry buzz about the EMC/Kazeon link-up was chatted about and rumored for some weeks (and the hot topic at the bars at ILTA last week).   Here are a few articles examining the whys’n and whatfors:

The press release from EMC and Kazeon  http://snipurl.com/rkh3n

The EMC blog: their view on the deal  http://snipurl.com/rllx6

Why EMC bought Kazeon http://snipurl.com/rkguv

Update: EMC Paying $150 Million For Kazeon Systems http://snipurl.com/rkgm4

EMC ‘Stitching’ Its Stack With Kazeon  http://snipurl.com/rkh2e

Marrying ECM and E-Discovery: EMC and Kazeon http://bit.ly/p1IuM

The analysis is just beginning so we’ll add more articles as they appear.

As we have reported in several posts these last few months, early case assessment (ECA) is the key technology to reducing the cost of e-discovery.  There have been multiple vendors in this space with Clearwell Systems the leader (click here).

Most new ECA platforms have been standalone applications that required users to import and export data depending upon what other eDiscovery technologies that they were utilizing. 

But now we have CaseCentral (click here) stepping to the plate by integrating ECA into their offering and enabling users to now start with ECA and extend through analysis, review, production and post-production re-use, facilitating collaborative assessments of new case merits and liabilities, application of first pass review, and real-time transfer to active review if required, all at a price point that changes the current ECA pricing model.

And in the area of “document relevance” is Equivio which is the hands-down leader in near de-duping and email thread management technology. They have just launched Equivio Relevance^TM which provides:

• Early case assessment: facilitates rapid assessment of the key issues and concepts in a case.
• Culling: ahieves high levels of recall and precision, helping overcome the challenges of over and under-inclusion that characterize traditional keyword methods.
• Review prioritization: By organizing the review set according to relevance rankings, Equivio enables prioritization of document review. This allows attorneys to immediately focus on the most relevant documents.
• Review quality assurance: By identifying discrepancies in the responsiveness designations vis-à-vis the human review team, the application helps find responsive documents missed in the detail review. Similarly, the discrepancies can be used to locate documents incorrectly marked by the human review team as responsive.

We’ll have more on other technologies in another post during LegalTech West Coast.  For our full coverage of LegalTech West Coast click here.