Reported by Gregory P. Bufithis, Esq. and Eric Fell, Esq.

18 February 2011 — It’s been two weeks since LegalTech New York and it’s taken that long to digest most of the information we collected. We stayed an extra week after LegalTech for follow-up with interviews and product demonstrations.

As always, LegalTech can cause info-saturation (see, for instance, the reports from Gabe Acevedo and Donna Seyle on the show) so unless you have a game plan it can overwhelm you.

For new readers: LegalTech New York is the largest legal technology conference/trade show in the U.S. It’s an excellent opportunity to get hands-on practical information in all legal technology areas with 600+ vendor exhibitions and 50+ substantive programs. It really does have the most extensive gathering of vendors/products for just about every legal technology need.

It was an interesting LegalTech this year and though I spent little time at the actual event but at meetings and presentations around and outside the venue, I came away with a few observations/themes/ideas … plus one big “new new thing” – real information management (more below).

I had the chance to wear a few hats: covering the technology side as the CEO of The Posse List, meeting with our European clients as CEO of Project Counsel, and launching our new venture Project Counsel Media. And it all came together. As Goethe said “At the moment of commitment, the universe conspires to assist you”.

We had a 6-person team at the event this year. The team covered about 15 of the substantive presentations/sessions offered amongst the various educational tracks, and they conducted 40+ video interviews with vendors and participants. Those videos have started to roll out on our YouTube site and will continue to roll out the next few weeks (editing has been a task). We will also have a long post early next week on the substantive educational sessions we covered with a synopsis and links to the materials presented.

The high-point for us was our 30-minute video interview with the keynote speaker Gonzalo de Cesare (political advisor with the European Union Police Mission in Bosnia & Herzegovina) whose keynote was entitled “United Nations War Crimes Investigations – Information Management in High-Volume Legal Proceedings.” He discussed the UN’s process for managing some of the largest and most complex cases in the world with information management and e-discovery management software (all provided by industry goliath ZyLAB) for the Khmer Rouge trials, the criminal tribunals for Rwanda, and the trial involving Slobadan Milošević and the former Yugoslavia.

We conducted the interview in Mr de Cesare’s native language of Spanish and we are in the process of preparing subtitled versions with downloadable transcripts in 14 languages for presentation to the United Nations. All versions will be available on the ZyLAB website as well as our YouTube Channel and the new Project Counsel Media website. For the ZyLAB press release on Mr de Cesare click here.

So, some observations/ideas/themes from LegalTech New York 2011 as gleaned from my staff and my own activity:

1. Optimism and maturation. I got a rather “warm & fuzzy” feeling this year in that I sensed more optimism about the financial strength of the e-discovery market. Presentation events and demo-rooms were almost all pre-booked before LegalTech even started, vendors scrambling to set-up additional sessions as the event commenced. Deals were being made left-and-right (I had the privilege of watching two transactions as an undisclosed observer). As Ari Kaplan has pointed out this “measured optimism” and maturation of the market was reflected by less flashy presentations, more case studies of “what-we-have-done-for-our-clients”, how vendors are executing on innovation, etc. For my video chat with Ari please click here.  .

2. Vendor partnerships and industry consolidation. There were lots of partnerships and tie-ups announced and cross-marketing ventures, too numerous to mention. These allow a vendor to in effect “leverage the power of its partner” (a phrase I stole from Ari Kaplan, by the way). For a list of those announcements (and as an overall great source on staying current on the overall legal technology market) I recommend following the folks at Inside Legal.

And for detailed “all-things-technology” in both the specific product sphere as well as market analysis I suggest a subscription to The 451 Group.

Also, a new resource on e-discovery providers: the Socha-Gelbmann team have announced the launch of a new online service called Apersee which was created in response to the many requests they have received for a better way to search for and select e-discovery providers and products, and built on the foundation established by their Socha-Gelbmann Electronic Discovery Survey. We have reviewed the Beta site and it’s a rather interesting tool to independently evaluate which providers and products potentially match your particular needs. To access the site click here and more background information click here.

These partnerships and tie-ups often precede an eventual merger and acquisition. This comes as no surprise because it follows what is happening in other industries. For instance both Coke and its rival PepsiCo completed their respective analysis of the beverage markets and bought their North American bottlers last year along with other distributors (and brands) as a way to improve performance by cutting costs, speeding innovation, and give themselves more control over distribution. All of those elements apply to the legal technology industry as well.

3. An alignment of in-house counsel and their outside counsel with respect to e-discovery. Over the last year we have seen corporations making a serious move toward managing e-discovery and treating it as a core business practice. This is a sea change, but it something we have seen developing very quickly across Europe (for our recent analysis click here). Many at LegalTech told us they still need a major “trigger event” (litigation, regulatory review or investigation) to get the process rolling and force their in-house law departments to focus. But what was “new” or at least more evident at LegalTech this year was a greater presence of law firm litigation support managers escorting their corporate clients through vendor exhibits and presentations (as well as substantive sessions) with the focus on how in-house law departments can go through the process of deciding whether/how to build an in-house e-discovery facility.

As we discussed with a number of in-house counsel, it is a cost analysis. Where is the company spending most of its e-discovery budget (if it has one) now? Are those portions of the workflow good candidates to bring in-house?

Note: typically, processing data and review are the most expensive phases of any e-discovery project. We have found that Project Counsel’s corporate clients have determined processing, analysis, and first-pass review are the best candidates to be brought in-house from an ROI perspective.  

4. Vendors and the art of differentiation. With 6 billion e-discovery vendors (only a slight exaggeration) the continuing challenge is still “how-do-we-differentiate-ourselves-from-the-pack?” and it is difficult for the client, the customer to make the evaluation. Just stagger through 2 floors (about 8 ballrooms) at LegalTech of vendors and try to find one who didn’t offer data-collection-data-processing-early-case-assessment-subjective-review-production … and phenomenal cost savings. And it’s not easy when everybody uses the same buzz words: cull-image-duplicate-document-early-case-assessment-production, etc.  

Today the marketing buzz word is “speed” with vendors regularly throwing around impressive-sounding numbers about the speeds at which their software tools can index and search data, though these numbers often lack context. In practice, e-discovery processing depends on a number of factors, such as the computing platforms data resides on, the types of media it is stored on, and the types of attachments and associated information included in a data set.

In 2005, George Socha and Tom Gelbmann launched the Electronic Discovery Reference Model to address a lack of standards in e-discovery. By creating a common model and framework for discovery the goal was to make the process more predictable. In 2006, they launched the EDRM Metrics project to provide a standard approach and a generally accepted language for measuring the full range of electronic discovery activities. The project includes a data set that vendors can use to test their systems.

All of this led to their launch of Aspersee. My suggestion is your starting point should be the links in paragraph #2 above: use The 451 Group and Aspersee to understand/compare vendors and products.

5. And just a view words about early case assessment. Early case assessment: a favorite concept/phrase in the e-discovery world. Simply put, it’s used to refer to estimating the risk (cost of time and money and probability) to prosecute or defend a legal case by assessing a case through an initial review of documents. It’s not new. Every trial attorney has done it. Nowadays, however, the document review is much more complicated, considering the volume of documents has exploded a million-fold. Global organizations deal with legal discovery and disclosure requests for electronically stored information “ESI” and paper documents on a regular basis.

But the phrase has become overused, warped and misused. For a nice, succinct “state-of-the-art” we turned to Morgan Sheehy, CEO of Nuix.

For a link to the early case assessment article to which we referred in the video click here.

And for a link to the recent IDC update on the entire early case assessment market click here:

6. Predictive coding and automated document review. The concept is simple: systems, methods, and computer program products for improved electronic discovery. They are geared for the predictive and automated coding of identical or highly similar documents for the purpose of limiting the volume of documents requiring review and thereby increasing the overall efficiency of the document review process. And it is growing in importance in the e-discovery market. For details we went to Craig Carpenter, Chief Technology Officer for Recommind:

7. On-line e-discovery education. There has been a surge in the recognition of the need for proper e-discovery training. And the answer has been online training in e-discovery law, training that harnesses the new capacities of technology and the Internet, yet still preserves the best interactive elements of the traditional legal apprenticeship tradition. This kind of online training can fast-track the knowledge base and skills of a few technology-minded lawyers in every law firm. It is no substitute for traditional in-firm apprenticeships for the few firms that have the requisite knowledge base. But it can help. Attorneys who spend the time and effort to be trained online can then more quickly acquire the full skills required for competence.

Two of the biggest proponents of the need for a change in e-discovery training are Ralph Losey and Jason R. Baron. We had time for an informal chat with both of them:

And for a link to Ralph’s program click here.

Very shortly The Posse List will be rolling out a special offer (for our promo click here) to its members for Ralph’s program, and Project Counsel will be doing the same for its European membership base.

To join the U.S. list send an email to list.subscription@theposselist.com and we’ll subscribe you.

To join the European list send an email to membership@projectcounsel.com and we’ll subscribe you.

8. Cloud computing and e-discovery.

It was a fairly large part of the program at LegalTech, and much discussed at the sessions. In our post next week that covers the substantive educational sessions we’ll provide some links.

But for a good summary of what cloud computing and e-discovery is all about here’s my chat with Steve D’Alencon of CaseCentral:

Also interesting was my chat with some of the International Data Corporation folks I met during the show and their recent report on the over all cloud computing market. The steady rise in popularity of cloud computing means the technology is about to reach a tipping point as more businesses realize the huge benefits it has to offer. Many IT customers are expecting to manage a varied host of cloud computing technologies in the near future. And, it appears that this flexibility, which allows businesses to mix a variety of private, public and hybrid cloud computing solutions, is only adding to the technologies popularity. IDC believes that over the course of the next few years, the worldwide cloud systems management software market is set to undergo massive growth. The firm believes that by 2015 the industry will be worth $2.5 billion.

The rapid growth will be down to the increased need for automation and integrated system management solutions that can optimize the performance of relatively disparate technologies. At the moment, debate over whether to use public or private cloud computing technologies is a major oversimplification of the situation. According to IDC, firms are not willing to part company with legacy equipment until they have seen a concrete return on investment. Therefore, cloud systems management software will be required to make increasingly complex infrastructure manageable – hence the expected growth in the marketplace.

Interestingly, according to IDC, last year 70 per cent of the world’s cloud computing management software was deployed on private infrastructure. This figure is likely to change, however, when major issues – such as privacy and security – are dealt with by public clouding computing providers. And that still remains the biggest issue: the major concern for businesses deploying cloud computing technologies is security. IDC says that data leakage and outright theft weighs heavy on many chief information officers minds and, as a result, many companies are attempting to plan ahead when it comes to security solutions for cloud computing.

We’ll go into this area in more depth next week when we discuss the substantive programs at LegalTech.

9. Those fabulous folks from IBM, technology … and my big take-away this year: what “real” information governance is all about. Technology. It never ceases to amaze. Just look at this week’s over story in The Economist on the manufacturing technology that can “print” a Stradivarius … and it plays beautifully.

Much attention was focused this week on IBM’s Deep Blue computer defeat of the “humanoids” on Jeopardy! (see story by clicking here). But my experience with IBM goes well beyond that. In December I attended the IQPC e-discovery conference in Munich. Going on at the same time was a software developer mini-conferences on semantic technology, virtualization, media, etc. with Google, IBM, Microsoft, Thomson Reuters and others in attendance. I was able to skip out of IQPC for a bit and attend a few sessions and grab a dinner with some folks (my CTO is an ex-Google employee and gets these invitations all the time; always best to tag along).

Search technology in the e-discovery/litigation game is a bit different than the search/semantic technology field I follow and am involved with in the web and media world and which I recently covered at LeWeb. The e-discovery folks are somewhat wrapped up right now in artificial intelligence, predictive coding, non-linear vis-à-vis linear approach to the review of document databases, etc.

What these folks are doing with search is an eye-opener. Of course with $8 billion R&D budgets, why not. Themes/discussion: semantic search, metadata, semantic web, ontology, BI 2.0 (which has been retagged “advanced analytics” of late), etc., etc. Just a sample of something I saw: IBM has this analytics that identifies the “alpha” individual in its customers’ calling circles — those people who’d be most likely to take other customers with them should they switch carriers — so that it can cater to those individuals. They also have text analytics they apply to all forms of social media to “detect sentiment” (not just chase keywords) in order to gauge customers’ reactions to brand advertising and then adjust marketing channels and messaging accordingly. It’s industry-specific — healthcare, insurance, telecom, consumer goods, etc. – and they are in the process of applying it to the litigation world.

The IBM analytics are quite amazing. The various programs can integrate gigabytes, terabytes, or petabytes of unstructured data from web-based repositories, collect a wide range of unstructured web data stemming from user-defined seed URLs and extracts/enrich that data using unstructured information management architecture. While its purpose is to leverage unstructured data strategies/support decisions (business intelligence) its application to text analytics for litigation is a step away.

But these “advanced analytics” are not lost on several e-discovery involved vendors and companies we met with at LegalTech. Today’s e-discovery is more focused on the regulatory and investigative side of a business, less the litigation side, where managing e-discovery and information must be part of the core business practice. This is a sea change, but it something we have seen developing very quickly with all of our corporate clients. And some of the forward thinking vendors understand this. ZyLAB certainly “gets it”, as does Recommind, and Ernst & Young and Nuix and CaseCentral. But the one to watch is FusionLegal who made numerous presentations at the show.

The mantra — very simply put — is this: investigations are a unique business process where a company puts unstructured corporate data through a comprehensive analysis and classification process, adding a wealth of “contextual” metadata to documents. These can be leveraged for initiatives outside of the individual immediate case but rarely ever are. This is not a “one-off” situation. Corporations rarely take time to see it is part of a matrix. A corporation needs to couple the investigation process with advanced data analytics to create a new quantum of analysis to help make informed decisions about the future and thereby drive performance and lessen risk. They can learn from the past. The technology to do so is out there. A corporation will finally be able to exhaust the potential of that technology and the discovery/investigation process to deliver a real ROI, especially companies that exist in highly litigious and highly regulated industries. It is more than just cutting costs. It is taking that past, all that “contextual” metadata and improving performance.

I will have more after my meetings with FusionLegal and other vendors in London in the coming weeks.

I’ll end with my informal chat with Mary Mack and Johannes Scholtes of ZyLAB who do a nice job of putting together all the main elements of world-wide e-discovery and who, as mentioned above, provided Gonzalo de Cesare the information management and e-discovery management software he used for his war crimes trials.

For more information or questions about The Posse List  contact us at manager@theposselist.com

5 January 2011  - Many legal pundits have repeatedly called for teaching e-discovery at law schools.  No one in the e-discovery world can miss what the digital information revolution has done to dramatically alter the discovery process.  Nobody has beat this drum more loudly than Ralph Losey, a reigning e-discovery guru (click here).

But if you don’t want to wait for your law school  …. or you are well beyond your law school years but need to catch-up on e-discovery … Ralph Losey has come upon the answer.  Ralph is launching a new online mass collaborative e-discovery program and The Posse List is assisting to spearhead the effort.

We are not providing academic credit or certification (but some state CLE accreditation for practicing lawyers may come later; Ralph’s working on it).  The judges’ panel at the recent Georgetown Law Advanced E-Discovery Institute discussed how superfluous subject-matter certification would be.  They preferred well-grounded CLEs and training programs. 

Ralph’s e-Discovery Team program is just that, but it’s online. You study at your own time, your own place, your own pace.  The instruction includes videos from the judges who make the law (including Judge Ron Hedges, Judge Paul Grim, Judge John Facciola, Judge  David Waxse) and the lawyers who write about e-discovery everyday (Craig Ball, Jason R Baron, Steven Gensler, George Socha, Ken Withers) … just to name a few. 

What’s covered?  Everything, from Sedona to the EDRM, and the thoughts and opinions of almost all of the leading industry experts and judges. It is a basic level course, for lawyers and students alike, almost identical to the online course Ralph taught in law school this summer.   

The online course consists of sixty-one classes, called modules, and covers all key topics in electronic discovery law.  Each module takes an average of thirty to forty minutes to complete and has assignments of from one to two hours each, depending on how long the reading and research takes you. In addition, several top e-discovery vendors will soon offer supplemental instructional programs, demos, and exercises designed exclusively for the program. 

And you will have different levels to choose from so that you can elect to have a version with or without an online expert-professor interaction.  Fees will range from zero (the first quarter is free without professor interaction, so that you can try it without risk), to $1,500 for the full program. 

We’ll have a detailed post after the first of year with all the details on the levels and specific costs, the detailed syllabus, how to sign up, the special Posse List registration code, etc.

We hope it has been a good holiday season for all.

We grew to 26,000+ members in 2010.  When we started The Posse List in 2002 our base was contract attorneys, the lawyers who work on document review and production — the “right side” of the EDRM.   These still constitute the largest part of our membership base.   We add 25-30 new such members every week.  But in percentage terms our fastest growing segment has been outside the contract attorney base:  forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, e-discovery companies, legal media entities, and numerous legal support professionals.   So it has been a little tough at times to please such a diverse audience. 

For many of our contract attorney members it has been a tough year.   They are dealing with continued repercussions from the financial melt-down, and the tectonic shift in the legal industry.   “Temp is the new perm” has been written about extensively in the past year (see one of our previous posts on the subject by clicking here).

And 2010 saw extensive discussion/coverage/debate about automated document review vis-a-vis human-assisted search.  We’ll address this issue in more detail in 2011 but we’d like to bring your attention to two recent articles:

*   “Human-Assisted Computer Search in EDD” by Jason Krause of Law Technology News (click here)

*    “Reinventing Review in Electronic Discovery” by Venkat Rangan of Clearwell Systems (click here)

We’ll try not to bore you with trends/predictions for 2011 (but don’t miss our ”must read” predictions for 2011 ..click here).   Here are some things we have in store for 2011, and things likely to continue in 2011:

1.  We are going to be working with Ralph Losey in the launch of his new online mass collaborative e-discovery program.  We’ll have a detailed post next month but for some preliminaries click here.

2.   Our job lists will continue to expand, as will the diversity in our job posts.   We have linked up with several new companies and job sources for 2011.   And we’ll be expanding job posts for returning Vets and ex-military Posse List members.  In 2010 our job postings had widened due to the increasing trend of attorneys straight out of law school (or with a level of substantive experience under his/her belt) who have decided to pursue other ventures, be it a solo practice or a business outside of the practice of law.   Much of this is due to a trend we (and others) have discussed:  the unbundling of legal services.  Stephanie Kimbro provides a nice overview on what this is about (click here).  

3.  We’ll have a continued focus on the lawyer as technologist (see our recent post by clicking here) which is the reason behind our link-up with Ralph Losey as described above.  As we have discussed over at our sister site The Electronic Discovery Reading Room  in our e-discovery and legal technology events coverage, one of the ways you can learn about e-discovery and all the technology out there is by going to a conference near you.   Most offer free admission to the exhibit hall (those that have exhibit halls) where you can meet technology vendors, collect information, see the technology at work behind e-discovery, etc.   We’ll be providing information on free exhibit hall passes for Posse List members for LegalTech2011 which is in NYC at the end of next month. 

We believe all our members can reposition themselves and obtain something better than document review (if that is your choice) in the e-discovery market, or reposition themselves to find more creative ways to raise their profiles and make contacts.  And for some very helpful advice read Paul Easton’s post “Transitioning from Document Review to E-discovery Project Management” (click here).

In spite of all the challenges you think you face in trying to hit the “exit” button and get of contract legal work, be comforted by the fact that scores of Posse List members are doing it, and successfully.   The best news:  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.

And we will continue to do what we can to help.  A Happy New Year to all, and we sincerely appreciate your support and feedback.  

In our series “Data! Data! Data!” – Cures for a General Counsel’s ESI Nightmares”  we have been interviewing thought leaders in the ESI management and e-discovery universe who can help us navigate through “the perfect storm”:  ever increasing data volumes; more litigation and government inquiries, and skyrocketing e-discovery costs.  That series will continue next week for several more weeks with interviews that include Deborah Baron of Autonomy, Brandon Daniels of CPA Global, the EDRM godfather George Socha, plus many more.

But everywhere you look,  the quantity of information in the world is soaring.  For instance, during 2009, American drone aircraft flying over Iraq and Afghanistan sent back around 24 years’ worth of video footage. New models being deployed this year will produce ten times as many data streams as their predecessors, and those in 2011 will produce 30 times as many.

According to one estimate, mankind created 150 exabytes (billion gigabytes) of data in 2005. This year, it will create 1,200 exabytes. Merely keeping up with this flood, and storing the bits that might be useful, is difficult enough. Analysing it, to spot patterns and extract useful information, is harder still. Even so, the data deluge is already starting to transform business, government, science and everyday life.

This week’s Economist has published a special report that takes a close look at this data deluge covering such issues as how information has become superabundant, how information is changing business, how internet companies profit from online data, news ways of showing data, etc.

To access the Economist special report click here.

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.

Guidance Software, a sponsor of The Masters Conference, issued a press release today announcing the launch of their new Professional Services offering, the Guidance Software Advisory Program (GAP) which is designed to help create and refine business processes and incorporate industry best practices around e-discovery, digital forensics, cybersecurity, and other digital investigations.  The press release is attached.  We interviewed Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software, last week at IQPC Brussels and he is at Masters Conference moderating tomorrow’s US-UK judicial panel on e-discovery.

Many Posse List members especially contract attorneys are involved in, or seeking to become involved in, digital forensics and cybersecurity by leveraging their e-discovery experience.   The 800-pound gorilla of digital forensics is Guidance Software which pretty much “invented” digital forensics.  Their EnCase platform first came out in 1998 and provides a foundation for organizations to conduct computer investigations of any kind, such as responding to e-discovery requests as well as conducting internal investigations, responding to regulatory inquiries or performing data and compliance auditing.  

Digital forensics tools are intended to help security staff, law enforcement and legal investigators identify, collect, preserve and examine data on computer hard drives related to inappropriate and illegal activity, such as cybercrime, e-mail and Internet abuse, fraud, financial mismanagement, unauthorized disclosure of corporate information, intellectual property theft, and so on.

Increasingly, these tools are also being applied to e-discovery efforts related to civil litigation and regulatory compliance.  

Digital forensics tools generally provide three main capabilities:

1.  Acquisition/collection/preservation: Make a sector-by-sector copy of the hard drive and run checks against those images to verify it’s an exact copy of the original.

2.  Search/analysis: Identify, analyze and keyword-search all relevant data, including deleted, encrypted, hidden, protected and temporary files, as well as virtual memory, application settings, printer spools, etc. Some packages can also detect which Web ports are open and which processes are running.

3.  Reporting: Create a detailed report, including a full audit log. This can help address compliance with Sarbanes-Oxley and other regulations.

E-discovery is not forensics.  But the steps involved with forensics work are actually subsets of the e-discovery process, as defined by the Electronic Discovery Reference Model (EDRM).  The EDRM defines forensics as encompassing identification, preservation and collection — three steps of its overall model, which also includes information management, review, analysis, production and presentation.   

Obviously cyber security is growing in importance due in large part to the way the Internet has become an essential part of our daily life and the fact that modern computing power lowers the entry barriers while it increases the number of malicious actors. Because cyber activity has become such an integral part of our operating environment, corporations have developed cyber security programs that integrate governance, strategy, policy, compliance, resilience, privacy, information life-cycle management, e-discovery, and technical assessment considerations all into one strategy process.  It is a continuing trend (and job path) as we have posted numerous times before.

EDRM advancements reflect two years of collaboration, refinement and modeling amongst e-discovery service providers, law firms, corporate practitioners and individual contributors

ST. PAUL, Minn. – October 13, 2009 – The Electronic Discovery Reference Model (EDRM) project today announced that it is now easier for users to find the valuable research and standards created by the leading e-discovery industry group via a completely re-designed website, www.edrm.net. In addition, the EDRM leaders, Tom Gelbmann and George Socha, have provided updates to all of the working projects in advance of the mid-year meeting, which is being held from Oct. 20-21, 2009, in St. Paul, Minn.

“Great strides have been taken to flesh out and further define the EDRM model,” said George Socha, co-founder of the EDRM project and principal of Socha Consulting. “We’re extremely proud of the progress made by each of our project teams. Our updated website reflects two years worth of collaboration, refinement, modeling and features.”

Advancements made by the eight EDRM projects in 2009, to date, include the following:

• Evergreen (launched 2007): The Evergreen working group has put together a Production Pack ‘n Go PowerPoint presentation, which steps through the stages of the production process. Posted in early 2009, that presentation and additional Evergreen materials are available at http://edrm.net/activities/projects/evergreen
• XML (2006): The XML group has developed an XML schema that can be used, and is being used, as a replacement for the multitude of proprietary load file formats out there today. With version 1.0 of the schema released in January 2008, EDRM is now working on refinements to version 1.1 and has begun the planning process for version 2.x. Twenty software  and service providers have passed the compliance self-test to become EDRM XML certified. For XML materials, go to http://edrm.net/activities/projects/xml
• Metrics (2006): After three years of hard work, the Metrics group has developed an extensive set of codes designed to provide an effective means of measuring the time, money and volumes associated with e-discovery activities. Version 1.0 of the codes is scheduled to be released in Q4 2009. The draft set can be seen at http://edrm.net/resources/standards/edrm-metrics-code-set
• Model Code of Conduct (2007): A draft Model Code of Conduct, which provides recommended guidelines for software and services providers (akin to those under which attorneys, court personnel and others in the legal space must operate) is now available at: http://edrm.net/resources/guidelines/edrm-model-code-of-conduct
• Search (2008): The EDRM Search Project, aimed at providing a framework for defining and managing search specifications for culling and review, released version 1.14 of the draft EDRM Search Guide in February 2009. The group currently is working on version 1.17 of the Search Guide, available at http://edrm.net/resources/guidelines/edrm-search-guide, and has begun development of an accompanying XML schema.
• Data Set (2008): The EDRM Data Set Project has compiled more than 60 gigabytes of data that can be used to test various aspects of electronic discovery software and services. The data set foreign language data from 23 different countries, emails with attachments (including .pst files), file format data from 200 different file types, and a file list with over 13,000 extensions. The group is currently testing the compiled data as well as distribution processes. More information on these efforts can be found at: http://edrm.net/activities/projects/data-set
• Jobs (2009): An initial process flow diagram outlining a means to identify, assess, advocate for, recruit, on-board and retain the appropriate level of professional resources process has been drafted. The group is working on developing a second level flow and related content. More information can be found at: http://edrm.net/activities/projects/jobs
• Information Management Reference Model (IMRM) (2009): The Information Management Reference Model Project has organized into six working groups, each focused on gathering input from a wide variety of organizations and experts, including analyst firms, corporations, electronic content management (ECM) vendors, healthcare organizations, industry trade associations, and standards and certification groups. The project seeks to facilitate dialogue among legal, IT, records management, line-of-business and other stakeholders by providing a common language and reference for discussion and decision-making based on the needs of the organization. For more information, visit http://edrm.net/activities/projects/infomation-management-reference-model

 Open invitation

Corporations, law firms, e-discovery vendors and individual thought leaders are invited to participate in the EDRM project and any of the working teams. The cost to participate is based on the type and size of the organization, as well as the number of projects in which the organization chooses to participate. Individuals are also welcome to participate for a fee; however, the fee is currently being waived for those who have been laid off and are currently unemployed.

About EDRM

Launched in May 2005, the EDRM project was created to address the lack of standards and guidelines in the electronic discovery market – a problem identified in the 2003 and 2004 Socha-Gelbmann Electronic Discovery surveys as a major concern for vendors and consumers alike. The completed reference model provides a common, flexible and extensible framework for the development, selection, evaluation and use of electronic discovery products and services. Expanding on the base defined with the Reference Model, the EDRM projects were expanded in May 2006 to include the EDRM Metrics and the EDRM XML projects. Over the past four years, the EDRM project has comprised more than 170 organizations, including 115 service and software providers, 43 law firms, three industry groups and 12 corporations involved with e-discovery. Information about the EDRM project is available at http://edrm.net.

Press contacts:

 George Socha   Socha Consulting    651.690.1739   pr@edrm.net

Tom Gelbmann  Gelbmann & Associates  651-483-0022  pr@edrm.net

The Masters Conference starts tomorrow in Washington, DC and runs for two days (click here).   A number of presenters are already in D.C., as well as a number of vendors, so we have been able to begin our coverage.  One of them is DC-based eTERA Consulting.

With the continued growth and expansion of eTERA Consulting, the company has recently hired project managers and senior case consultants. Joe Kanka, Vice President of Corporate Development, told The Posse List in a an interview that “eTERA Consulting continues to look at the contract attorney marketplace in order to identify and attract new talent that fits our business model.”  In addition, eTERA Consulting is anticipating the staffing of upcoming document review projects for its clients.  “Our ability to tap into the contract labor pool allows us to provide the flexible staffing solutions that clients require from us,” said Kanka.   eTERA Consulting is an example of the trend we have reported :  the march of EDD vendors into document review, moving into the “right side” of the EDRM and thereby moving into all aspects of the model, as corporations turn to these companies to secure more ownership over the entire e-discovery process to enhance control and reduce costs. 

eTERA Consulting also recently announced that it has teamed up with the law firm of Sheppard Mullin in order to provide a series of CLE Corporate Briefing Seminars discussing antitrust enforcement and emerging legal issues under the Obama Administration. The first Corporate Briefing Seminar will be held in November will focus on Managing a Cartel Investigation. The seminar series will cover a wide range of legal, case management and electronic discovery issues that corporate counsel must manage.

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.

Here are a handful of articles that popped up over the weekend and which we think would be of interest to our readers.   As if you don’t have enough to read as you start your Monday morning:

* A relook:  “Lock the law school doors” (now with 152 comments)  http://sn.im/s6ads

* How to Budget for Ediscovery Costs   http://sn.im/s61ap

* EDRM Critique: From Hand-off to Collaborative Culture http://sn.im/s61b5

* What makes Twitter worth a billion dollars?  http://sn.im/s61aa

* Making sense of Twitter’s influence on the corporate world  http://sn.im/s6k9h

* Computer Forensics and Cyber Crime: an Introduction  http://bit.ly/1I15gJ

* Popular Logos with Hidden Symbolisms http://j.mp/3L4ad8

* Americans Tame Their Wanderlust – migration favors DC Alaska and Texas http://tinyurl.com/ydvhlev

* The best WordPress blog theme right now to start a blog/website http://bit.ly/1afpGf

* Tips on “Meet and Confer” from Orange Legal Technologies  http://sn.im/s62oj

* 60 Websites Sites in 60 Minutes:  Practical Skills CLE        http://sn.im/s6a5y