Guidance Software Inc (NASDAQ:GUID), has just announced it has signed a definitive agreement to acquire privately-held CaseCentral Inc, a leader in the ediscovery market for Cloud-based review and production software.
"The acquisition of CaseCentral will bring together industry leaders for both on-premise and Cloud-based e-discovery software. We will deliver the best of both worlds to customers by offering complete, integrated and innovative software in the e-discovery market," said Victor Limongelli, president & CEO of Guidance Software. "The combined organization will be the largest pure-play e-discovery software company, with nearly 500 total employees, and thousands of users."
This acquisition will extend Guidance Software's market leadership by delivering a complete e-discovery platform addressing the e-discovery needs of corporations and government agencies. The combined product portfolio will deliver to customers increased efficiency and automation, as well as lower risk for e-discovery activities. The integrated solution will span from legal hold to identification, collection, preservation, processing, first pass review, and, now with CaseCentral's market leading software-as-a-service (SaaS) offering, best-in-class early case assessment (ECA), review and production capabilities.
The combined offering deploys software intelligently, with EnCase eDiscovery delivering the legal hold, identification, collection, preservation, and processing functions on-premise, at the customer site and CaseCentral delivering the ECA, review and production functions as SaaS in the Cloud, so that geographically dispersed inside and outside counsel can efficiently review collected documents without needing any special equipment or software other than a web browser and internet connectivity.
Guidance believes the integration of EnCase eDiscovery with CaseCentral will quickly provide additional value to customers, scaling from support for single-case requirements to multi-case, multi-party requirements. Further, the unique EnCase eDiscovery Collected Data Reuse capabilities, coupled with the unique CaseCentral centralized, multi-matter legal repository should provide immediate benefit to customers by automating searches, reducing over-collection of ESI, lowering spoliation risk, re-using attorney work product where appropriate, and avoiding inadvertent production of confidential or privileged client data.
"CaseCentral has pioneered many significant e-discovery industry developments, including the delivery of e-discovery software via the Cloud and a centralized legal repository with multi-matter, multi-party and re-use capability," said Chris Kruse, founder, president & CEO of CaseCentral. "We are excited about joining forces with Guidance Software, as we will be well positioned to capitalize on the market's tremendous potential and define the next generation of e-discovery solutions, benefitting both Guidance and CaseCentral customers, partners and employees."
Under the terms of the agreement, Guidance Software will acquire CaseCentral for upfront consideration of approximately $17.1 million, consisting of approximately $8.3 million in cash, $8.3 million in Guidance Software common stock, and the assumption of $0.5 million of debt, net of cash. Depending on CaseCentral's SaaS revenue growth, Guidance Software may pay up to an additional $33 million in cash over the next three years. The transaction is subject to customary closing conditions and is expected to close during the first quarter of 2012. Guidance Software expects the transaction to add approximately $10 million in SaaS revenue in 2012, and to be slightly dilutive to slightly accretive to 2012 non-GAAP EPS and accretive to 2013 non-GAAP EPS.
Atlas Technology Group acted as financial advisor to Guidance Software in this transaction.
Conference Call Information:
The company will host a conference call today at 2:00 p.m. pacific time, 5:00 p.m. eastern time to discuss its quarterly results and this acquisition. Participants should call (877) 303-9850 (North America) or (408) 427-3732 (International) and should dial in at least 5 minutes prior to the conference call.
A webcast and replay of the call may also be found on the Internet through Guidance Software's Investor Relations website at http://investors.guidancesoftware.com/events.cfm Registered users may access this content over the Internet, and there is no cost to register. If you have not already registered, please do so at least 15 minutes prior to the start of the conference call.
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Tuesday, February 7
Acquisitions ahoy ! - Guidance Software buys CaseCentral
by
Charles Christian
on Tue 07 Feb 2012 21:55 GMT
Wednesday, January 25
Guest ediscovery article: Why the Federal Rules don't need to change & why changes wouldn't save money
by
Charles Christian
on Wed 25 Jan 2012 15:00 GMT
by Tom O’Connor and Gavin W Manes of Avansic
Introduction In 2011, a strong movement established momentum and gave rise to a great deal of discussion about altering the Federal Rules on e-discovery to directly address preservation. The debate on the topic has been lively and heated at times. The strongest proponents for the changes have been corporate counsels, best exemplified by Thomas Hill, associate general counsel at General Electric, who testified before Congress last fall that the current Federal Rules of Civil Procedure (FRCP) result in companies wasting billions of dollars on unnecessary document preservation and production. He indicated that part of the problem is that companies must preserve documents before a lawsuit is filed, therefore they often preserve even when no lawsuit is ever filed. Hill cited occasions where GE spent more in preservation than the money at stake in the litigation. The proposed changes are still being reviewed by the Committee on Rules and Practice and Procedure of the Judicial Conference of the United States and will likely be a hot issue at LegalTech in New York next week. But do the Federal Rules really need to change regarding preservation? We feel strongly that we do not need to change the rules, and so do other several other prominent observers (see Opinions from the Field below). The crux of the preservation problem does not lie in the inadequacy of the FRCP guidelines but rather in corporations being unprepared for litigation, particularly for the rigors of e-discovery. Fixing the major issues in data preservation will require true preparedness, with companies being proactive and forward-thinking in storing their data with an eye towards future e-discovery needs. Although rule changes might provide further impetus or incentive for corporations to move in a proactive direction, what is really needed is a fundamental attitude shift in the legal and corporate worldview to adhere to the rules as they are today. Refuting the Three Proposed Approaches To the Rule Change A set of three proposed alternative changes to the rules was circulated at several Rules Advisory Committee and Subcommittee meetings at Duke University in Spring 2011 and Dallas in September 2011. The Category 1 approach provides a higher degree of specificity including a fairly detailed explanation of the duty to preserve evidence (Rule 26.1(a)) and details possible triggers (26.1(b)), the scope of the duty to preserve (26.1(c)), and sanctions (Rule 37). Category 2 proposes a more general preservation rule, while Category 3 only addresses sanctions as a tool for influencing behavior. The three categories are discussed in more detail below. Category 1: Specific Rule This draft includes many different examples of how difficult it is to draft a single rule to cover all the possible problems. For example, this draft contains a long list of trigger events for preservation as well as a list of types of ESI that would be “presumptively excluded” from the preservation duty, including deleted data residing on hard drives and physically damaged media. Why Category 1 won’t work: The problem with this category is that IT would be presented with an enormous checklist of possible options to wade through for each case that came across their desk. A significant knowledge gap would continue to exist between IT and legal as to whether trigger events have happened, so preservation still may not be performed in a timely and comprehensive manner. Category 2: General Rule The Category 2 proposal also suggests lists for alternative approaches but is less detailed. For example, one proposal for preservation occurs when a “reasonable person” would expect to be a party to an action. However, since no definition of reasonableness is provided, the onus would be on IT to define and defend what is reasonable. Why Category 2 won’t work: IT is not counsel – they are not generally in a position to know what reasonable is, or what a judge will think is reasonable. Category 3: Sanctions-Based Rule The Category 3 approach differs from the first two in that it focuses only on sanctions and would act like more of a “back-end” rule. In other words, the rule would not contain any specific directives about preservation, rather it would provide direction in the areas of when and how sanctions might be applied. Absent special circumstances, the court would be prohibited from imposing any of the sanctions listed in Rule 37(b)(2) or from giving an adverse-inference instruction. This option would seem to shift the responsibility more from IT to the Court, although it would still require IT to defend their actions. Why Category 3 won’t work: It focuses only on sanctions and not solutions. Providing a roadmap for preservation is very important to moving forward, and merely indicating the punishment for failure to follow rules does not accomplish that goal. For a more detailed discussion of these three categories, see 1st September 2011 post Jumping the Gun? Three Approaches to Drafting New Federal Discovery Rules by Matt Nelson on the E-Discovery 2.0 blog. http://www.clearwellsystems.com/e-discovery-blog/2011/09/01/jumping-the-gun-three-approaches-to-drafting-new-federal-discovery-rules/ Reviewing Opinions from the Leaders in the Field Other eDiscovery experts agree that the rules do not need to be changed. Former U.S. Magistrate Judge Ron Hedges, who is now an eDiscovery special master and Georgetown Law Center adjunct professor, has been very vocal with the opinion that the rules have not been in effect long enough to measure their true impact. And noted e-discovery commentator Ralph Losey feels that the answer lies in more education about e-discovery, a view shared by attorney and consultant Michael Arkfeld, who maintains that 95% of all attorneys don’t know enough about what to do with e-discovery. Corporate Preparedness So if rule changes aren’t necessary or if new rules would not lower the cost of e-discovery, then how can costs be reduced? Corporations being proactive and affirmative in preparing for e-discovery may well be the answer. There are a number of components to preparedness, but it is critical to understand that every single decision made by IT has an impact on the cost of e-discovery. For example, if an IT administrator only allows employees to store their email on the main server instead of in .pst files on their local computers, then only the server’s stored data would be required during e-discovery. This not only dramatically reduces the number of data stores that will need to be preserved, collected and processed; it also reduces the potential for spoliation and collecting duplicate documents. Other IT decisions that affect e-discovery include encryption settings, asset tracking, disposition of old computers, and backup procedures and formats. Asset tracking is one of the easiest ways to reduce litigation costs (and help with general business practice). Often, many hours are spent trying to track down the computers of target custodians. Knowing where that information resides can save time and corporate productivity. Backup procedures are another area where traditional IT “best practices” may actually hurt during litigation: keeping years of electronic information may mean having to go back through all of that data. Of course, this is a sensitive issue that requires input from legal, IT, and management since there may be litigation holds to adhere to, as well as solid business reasons to keep such information. Another large step towards reducing litigation’s impact is to prevent the creation of large data sets in the first place. It is difficult to imagine the amount of data that any given user has created since digital waste is not as tangible as paper. Prevention can be accomplished by cataloging current documents and their storage locations, investigating and revising overbroad backup procedures, and identifying the types of electronic information that exist (i.e., emails, Word documents, CAD drawings, etc). When considered in relation to potential e-discovery requests, this thorough evaluation of a company’s electronic footprint will reveal areas of potential data reduction. A balance can be achieved between the efficiency of a company’s IT department and the cost of e-discovery only when addressed before the onset of litigation. It is critical to include IT personnel, corporate management and legal counsel in all of these discussions. Some companies have found success by having the legal department use a portion of its own budget for any IT changes that would benefit the company during litigation. Analysis should take into consideration the particular challenges of each company’s industry, the documents they create, and the lawsuits they are most likely to face. Conclusion Although the issue of rule changes related to data preservation has been widely discussed and changes have even been proposed, there is no clear path forward. Opinions on the subject vary widely and we propose that even if the rules change, the issues of preservation cost, burden, and sanctions may not be resolved. The only clear way to reduce the probability of sanctions is for companies to work within their IT departments, management, and with their counsel to be careful and thorough with their e-discovery preparations far in advance of a lawsuit. Performing an E-Discovery Readiness Assessment (http://bit.ly/A24XrB) helps to determine the level of litigation preparedness, and the results of that assessment provide a business with simple and affordable practices to maintain control over their documents. The ED Readiness Assessment takes into consideration the potential litigation challenges of each company’s specific industry and the documents they create. Companies can see a direct cost benefit by implementing the recommendations of the assessment. This e-discovery preparedness eventually saves both time and money should litigation arise. The rules may or not change but the preservation obligation exists today, whether companies choose to acknowledge or not. Only a comprehensive examination of their ESI content can prepare a corporation for litigation, regardless of what the rules say. Changing the rules won’t save litigants money; only knowledge and readiness will do that. About the authors... Gavin W. Manes PhD, President & CEO, Avansic Gavin Manes is a nationally recognized expert in e-discovery and digital forensics who is currently the President and CEO of Avansic, a Tulsa-based company that provides ESI processing, e-discovery, and digital forensics services to law firms and companies across the nation. Having published over 50 papers on computer security and digital forensics, Manes holds a doctorate in computer science from the University of Tulsa. He has also briefed the White House, Department of the Interior, the National Security Council, and the Pentagon on computer security and forensics issues. gavin.manes@avansic.com Tom O’Connor, Director of Professional Services, Avansic A nationally known lawyer and eDiscovery expert, Tom O’Connor is Director of Professional Services at Avansic. Based in New Orleans, Tom is best known for his work in e-discovery, which includes assisting firms and corporate counsel in matters of retention policies, litigation holds, and document exchange protocols. He has worked on a number of high-profile cases including asbestos litigation, the Keating case, California class actions against crematoriums, tobacco litigation on behalf of the Attorney General of Texas, and various phases of the Enron and BP litigation. tom.oconnor@avansic.com Thursday, January 5
More ediscovery predictions for 2012
by
Charles Christian
on Thu 05 Jan 2012 11:00 GMT
 CaseCentral – you know who they are, they supply the cartoons we run on Fridays (and some Thursdays) – have sent us their top five ediscovery related predictions for 2012... 1. The Cloud is here to stay Many have realized that the cloud is simply another delivery model for many different solutions, from storage, to applications to complete computing infrastructures. And there can be significant economic and time-to-market benefits by using a cloud-based approach. Whether you call it software as a service (SaaS) or cloud-based, the adoption of cloud computing will accelerate in 2012. In October, 2011, a KPMG survey concluded, “the cloud is now,” saying “the vast majority of senior executives say their organizations have already moved at least some business activities to the cloud and expect 2012 investment to skyrocket, with some companies planning to spend more than a fifth of their IT budget on cloud next year.” 2. Big data and business intelligence meet ediscovery According to IDC and EMC, the world’s information is now doubling every two years. In 2011 alone, we will create 1.8 zettabytes of new ESI. A zettabyte equals one billion terabytes. To put that in perspective, in 2009, the entire contents of the Internet was estimated at only half a zettabyte, which is equivalent to a stack of books stretching from the Earth to Pluto 10 times. (Yes but how many London buses? ...Ed) Unsurprisingly, if we are creating this much data, it will increasingly end up in litigation, regulatory requests and more, so big data becomes an issue in ediscovery, too. To gain control over this growth of big data legal organizations will need to apply more business intelligence and big data analytics technologies and best practices to their eDiscovery processes. 3. New technology drives real changes in how data is identified, collected, processed, reviewed, analyzed and produced As we head into 2012, we’ve been introduced to many disruptive technologies and approaches that will continue to impact our behaviors and workflow, including predictive coding, computer-aided review, automated data classification, dynamic concept search, data visualization, threading and automated data connectors. If you accept the arguments about big data and ediscovery (above), then in 2012 you are inevitably looking for technology and tools to help you stay ahead of the curve. While all of the technologies mentioned above will have an impact in 2012, the elephant in the room is the belief that manual review by humans is the standard and, therefore, more accurate than any computer or software application. However, the volume of ESI today makes it impossible for reviewers to effectively continue with the practice of linear review and research is continuing to show that technology-assisted review is at least as accurate and efficient as linear review. 4. Data collection continues to become more complex In 2012, data collection will be more complex, not only because there will continue to be immensely more of it, but also because the number of locations from which to collect data will continue to increase. This challenge spans behind the firewall storage, email, archives, applications and computers, cloud-based business applications and systems, a dizzying array of social media and also mobile devices, including smart phones and tablet computers. As a result, more automated and intelligent identification, collection and processing tools will continue to gain mindshare. These tools will enable targeted identification, collection and automated processing in a forensically sound, legally defensible manner. 5. Continued maturation of corporate ediscovery processes Most cases start off very quickly, often with little emphasis on planning prior to implementation. As corporate ediscovery processes continue to mature in 2012, best practices will involve identifying stakeholders; holding regular status meetings; managing timelines, workflow and production requirements; tracking and measuring progress; and standardizing on identified best practices. ediscovery is fundamentally a collaborative and time-sensitive process that involves multiple, geographically dispersed participants. From a technology perspective, more mature organizations will move towards utilizing centralized legal repositories to support a multi-matter ediscovery process and rely less on single matter and ad hoc management of individual cases. Benefits of this approach include leveraging work product, avoiding over-collection and protecting against inadvertent production. Friday, December 2
LawTech Futures update: second keynote + ediscovery session announced
by
Charles Christian
on Fri 02 Dec 2011 08:00 GMT
Legal Technology Insider and NetLaw Media are pleased to announced that Dr Patrick Dixon has been confirmed to join Gerd Leonhard as a Keynote Speaker at the LawTech Futures event on 15th March 2012.
The Wall Street Journal has named Patrick as a 'Global Change Guru' and the Press Association lists him as 'Europe’s Leading Futurist'. He advises many of the world’s largest corporations on key trends, managing uncertainty, identifying risk and developing opportunities; and is the author of 15 books in 27 languages including Futurewise, SustainAgility, The Genetic Revolution and Building a Better Business. His list of clients includes Google, Linklaters, Microsoft, IBM, Freshfields, Accenture, Ikea, Eversheds, KLM/Air France, BP, Charles Russell, Aviva, Barclays, UBS, Credit Suisse, PricewaterhouseCoopers, BASF, Credit Suisse, Forbes, Royal Bank of Scotland, BT, BBC, Fedex, Unilever, McDonalds and DHL. • LawTech Futures has also added an ediscovery and digital investigations panel session to the conference programme – the session will be chaired by well-known litigation technology consultant Andrew Haslam. For more updates keep following the #LawTechFutures #hashtag on Twitter. Wednesday, November 23
Guest article: Predicting the future of disclosure
by
Charles Christian
on Wed 23 Nov 2011 11:38 GMT
Here's a case study on the effectiveness of predictive coding technology to determine relevance in e-disclosure/ediscovery projects by Dominic Lacey and Jamie Tanner of Eversheds LLP and James Moeskops of Millnet Limited
What is Predictive Coding Technology? Predictive coding technology uses statistical sampling techniques to score the relevance of documents. A sub-set of documents are the subject of a human review. This human review creates a model that is then applied to the wider set of documents, each of which is scored against the model for relevance. In this case the software used was Equivio Relevance. Documents for review are loaded into the Equivio Relevance software whiche only looks at document text, not family relationships etc. Accordingly, families are separated and all documents de-duplicated at attachment level. The human review then commences. This is an iterative process. Initially random batches are presented to the reviewer by the software. Each document is scored by the reviewer as either relevant or irrelevant to the matters in issue. Over time a set of rules or a model is created. Once a threshold of stability is reached the software can be applied to all of documents whereby the software scores the relevance of each document. The technique is based on the text of documents, so does have limitations in respect of plans/ drawings, photographs and number only documents, eg spreadsheets. The methodology works to link associations and words in the text. It is much more than key word searching. The Case Study The initial harvesting of documents was done with reference to custodians, date ranges and key word filters. Predictive coding is a purely second stage process. In this case, in excess of 250,000 top level documents were harvested. These documents were then de-duplicated at top level and loaded into Equivio Relevance. The lead reviewer then started the process. The first step was to review 1000 documents selected by the software on an entirely random basis. Of the 1000 documents presented, the lead reviewer considered only 42 documents to have any relevance to the matters in issue. The next stage in the iterative review process was to review batches of documents. The software presented the reviewer with batches of documents, each documents being classified as relevant or not relevant. Each time a batch of documents was completed, the software applies statistical algorithms to analyse the text contained within the batch of documents reviewed against those documents classified as relevant and not relevant in all previous batches reviewed. In total the lead reviewer reviewed circa 2000 documents being the initial random 1000 documents and a further 1000 in multiple batches. Through the batch review process the software learns. The process could be seen to be working with the batches being presented for review towards the end of the process with roughly half of the documents being relevant (the software deliberately continues to present documents it classifies as irrelevant to ensure the reviewer is kept alert and consistent). Through the review process the model is refined until the consistency of review produces a stable model to apply to all documents. The application of the model to the whole set of documents takes a number of hours to run and in our case was done overnight. The software does not decide between relevance or irrelevance. The result is that each document is given a percentage relevance score between 0-to-100. The documents were presented grouped into ten percentile bands, eg X number of documents are shown to be in the 0% – 10% band, Y in the 11% to 20% band etc. Documents with a 0% score are documents without text, such as photographs. The decision is then where to make the cut. We carried out a sampling review of the extremes of the results. This confirmed that the 0-10% scores and the 91-100% scores were almost entirely irrelevant and relevant respectively. Documents in the middle ranges were then sampled to make a determination of where to determine the boundary. The cut made resulted in 7000 documents being considered relevant for further review and the balance being irrelevant. This was a conservative judgement, but significantly reduced the number of documents for manual review. The documents that made the cut numbered some 7000 documents. This was a manageable number to review compared to the starting pool of over 250,000. These documents were manually reviewed for privilege and relevance prior to disclosure. Sampling Results A quality audit process was also carried out on the results to verify the effectiveness of Equivio Relevance. This took place over a number of weeks. It was not a rushed audit under pressure but a proper and carefully considered review. Of the documents deemed irrelevant, a sample of 20% were manually reviewed. From the manual review, 1.7% of the documents manually reviewed were judged relevant, but incorrectly classified as irrelevant by Equivio Relevance. Put another way more than 98% of the documents deemed irrelevant were correctly coded as irrelevant. The standard for predictive coding is not perfection (ie perfect categorisation of documents as relevant/non relevant for a particular matter). The standard is whether the results can be shown to have been effective. Human review is not the gold standard for disclosure. A 2010 study* comparing the results of human review against computer review found that the computer review was at least as accurate as manual review. Rather, a study by Grossman & Cormack** concluded “the myth that exhaustive manual review is the most effective – and therefore, the most defensible – approach to document review is strongly refuted. Technology assisted review can (and does) yield more accurate results than exhaustive manual review, with much lower effort.” The particular processes found to be superior in the study are both interactive, employing a combination of computer and human input. The study considered whether manual reviewers would have had the same error rate had they reviewed the entire disclosure rather than batches, and found that reviewers would tend to miss “needles in the haystack” due to fatigue, inattention, boredom and other related human factors. Costs Implications & Limitations It is estimated that to carry out a human review for relevance of 250,000 documents would take many hundreds of lawyer days and cost well in excess of £1,000,000. The process of Equivio Relevance assisted review was completed for a fraction of this cost and in a much faster time frame. The obvious limitations of predictive coding technology are that it is a textual analysis. It is ineffective with drawings, photographs etc and has limitations with regard to spreadsheets. Best Practice The use of predictive coding software is downstream from the preservation, collection, processing and other initial review and filtering stages in the electronic disclosure process. Therefore, it is critical that the approaches, judgement calls and technologies used to identify the sub-set of documents against which predictive coding technology is applied are therefore robust and defensible. Predictive coding is lawyer led. The effectiveness of the process is determined by the ability of the person undertaking the sampling review. It is strongly suggested that this person should be the partner with responsibility for the conduct of the matter. There must be some degree of considered quality control checking. On large datasets this will involve sampling and document reviewing from the relevant/non-relevant categories and may involve iterative adjustments to improve the effectiveness of the predictive coding results. Court’s Approach to Predictive Coding Technology There has been considerable commentary and some case studies (particularly in the US) on the use of predictive coding, although to date there has not been a single judgment in any jurisdiction relating specifically to the use of predictive coding. However, in Goodale v The Ministry of Justice, Senior Master Whitaker endorsed the use of predictive coding “this [case] is a prime candidate for the application of software that providers now have, which can de-duplicate that material and render it down to a more reasonable size and search it by computer to produce a manageable corpus for human review – which is of course the most expensive part of the exercise. Indeed, when it comes to review, I am aware of software that will effectively score each document as to its likely relevance and which will enable a prioritisation of categories within the entire document set.” The New Practice Direction 31B CPR which applies to proceedings started on or after 1 October 2010 deals specifically with disclosure of electronic documents. It includes a general principle that “technology should be used in order to ensure that document management activities are undertaken efficiently and effectively.” In addition, parties are required to discuss the “tools and techniques (if any) which should be considered to reduce the burden and cost of disclosure of electronic documents” which includes the use of “agreed software tools.” These provisions make it clear that technology may be employed in the e-disclosure process, subject always to the overriding principles of reasonableness and proportionality. * Document Categorization in Legal E-Discovery: Computer Classification vs. Manual Review, Herb Roitblat, Anne Kershaw and Patrick Oot, January 2010 ** Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, Maura R. Grossman & Gordon V. Cormack Wednesday, November 16
Daegis publish their top 5 ediscovery predictions for 2012
by
Charles Christian
on Wed 16 Nov 2011 12:44 GMT
Daegis, a US-based provider of ediscovery solutions, today announced its top five predictions for ediscovery in 2012 based on insights gathered from legal industry thought leaders, ongoing cases, and emerging trends among enterprise and law firm customers. Daegis anticipates significant changes to the prevailing ediscovery model and the rulings and regulations surrounding it, including a renewed emphasis on the role that people play in the ediscovery process and a seismic shift in pricing structures as the amount of electronically stored information continues to grow and clients demand more economically viable pricing models.
Daegis’ Top Five Electronic Discovery Predictions for 2012 are: 1. Litigants will Focus On Leveraging Knowledge Gained In Prior Reviews Enterprises and law firms will continue to see an increase in the volume and variety of data sources required for ediscovery. In an effort to control costs, serial litigants will identify new ways to repurpose and leverage attorney intellectual capital across multiple matters, rather than reinventing the wheel for each isolated matter. To accomplish this, the use of purpose-built repositories and master databases will emerge as a model for exponentially reducing costs across divergent litigation and regulatory matters. Using this model, review decisions made in one matter can be leveraged in subsequent matters any number of ways to save costs by streamlining and accelerating the review and reducing the total number of documents reviewed. As a result, consistency across matters can be achieved for both privilege calls and the production of responsive documents. 2. Out with the Old Pricing Model, In with the New In this era of big data and data deluge, the amount of electronically stored information has continued to increase exponentially, and with it, the cost of ediscovery under the industry-standard per-gigabyte pricing model. Emerging challenges and client discontent will force the market’s hand in 2012. To remain competitive, ediscovery vendors will begin shaking up the stagnant pricing model with alternative fee arrangements and flexible pricing structures. 3. Cloud and Social Media Make Privacy, Security Issues Foggy The cloud and social media will continue to blur the lines, as Facebook pages and offshore cloud servers are called into litigation. 2012 could be a landmark year for these two challenging mediums. Until then, enterprises must set up protocols for allowing or prohibiting access to social networks and understanding where data will physically reside before choosing a cloud vendor as this will have a direct impact on cross border global data transfers. Enterprises should also proactively focus on negotiating favorable requirements around ediscovery obligations. 4. The Human Element Returns to ediscovery As the pendulum swings, we will see a renewed focus on the role that people play in the ediscovery process. Hybrid solutions that take into consideration both the intelligent application of technology to automate and create consistency and transparency of process, combined with human expertise and judgment to ensure defensibility – all within a single solution – will prove to be winning models as enterprises strike a balance between predicting, controlling and decreasing costs and reducing risks associated with ediscovery. 5. Judges, Regulators Increase Focus on ediscovery Rules. Rulings from the bench will continue to raise the bar on ediscovery best practices. We expect to see more courts take an aggressive stance on managing electronic discovery. Regulatory and legislative authorities will follow suit, placing renewed emphasis on developing consistent rules and standards for ediscovery as well as requiring targets to defend their ediscovery processes. FRE 502, which now limits the repercussions of inadvertent disclosures in Federal Court, and the willingness of the Civil Rules Advisory Committee to contemplate rule changes regarding preservation and spoliation are harbingers of the increasing focus that federal and state legislators will place on the codification of ediscovery as a judicial process. “As the amount of electronically stored information continues to grow exponentially, it is becoming increasingly untenable, both from a cost and time perspective, for serial litigants to recreate the ediscovery life-cycle each time a new matter arises,” said Kurt Jensen, founder & executive vice president at Daegis. “In 2012, we expect the industry to stand up and take notice, manifested by shifts in both ediscovery processes – from collection and processing, to review and production – as well as pricing models. Client demands on the vendor community will pave the way for solutions that are more cost-effective, preserve the intellectual capital generated in previous matters, and meet increasingly stringent defensibility standards as the rules and requirements around ediscovery become more rigorous.” Tuesday, September 13
Guest article: With case budgets increasingly under scrutiny, is extra expenditure on ediscovery tools a solid investment?
by
Charles Christian
on Tue 13 Sep 2011 12:46 BST
by Rob Jones, Legal Consultant, Kroll Ontrack
With case budgets increasingly under scrutiny, is extra expenditure on electronic discovery tools a solid investment? In Wetton v Ahmed, the Court of Appeal affirmed the First Instance Judge’s method of dealing with the factual issues. In a case with aged facts and in which the contemporaneous written evidence was “far from complete”, His Honour Judge Simon Brown QC sought to “test the [oral] evidence by reference to both the contemporary documentary evidence and its absence.” This case underlines the importance of documentary evidence and its power to corroborate witness testimony; a point which needs little reinforcement. However, gaining access to contemporaneous documentation can be challenging and so here is a reminder of the important things to remember when searching for documentary evidence. Data is like an iceberg, in that the majority of its mass lies beneath the surface of what is apparently accessible. Paper evidence can usually be obtained easily, as can mailboxes or the contents of a personal or shared file on a network. But if, for example, your case involves any claims of deception, then there is a risk that important evidence could have been deleted. This is when it may be critical to don the thermals and dive beneath the surface, to examine more obscure parts of the body of data. Suddenly, information sent by texts or stored on backup tapes could be critical. While an iceberg may be seen easily from above the water, there are occasions when it may be difficult to spot; the same is true of data. Most cases involving electronic searches for evidence begin with the same navigational problem: how to find key documents without necessarily knowing what they look like or where they reside. It is fairly common to begin a search by speaking with someone who understands the peaks and ridges of the IT estate, but this can be a complex and daunting task. Misunderstandings can lead to mistakes, so it is important to ask the right questions and be unafraid to ask for help as and when it is needed. The power of hindsight is particularly useful in e-disclosure situations. Though it is now 3 years old, we should not forget what the Zimmers case taught us: that electronically stored information (ESI) can be found in the unlikeliest of situations. In this case, a computer that held case-turning evidence was thought by the Claimant’s legal representation to be unusable. To the surprise of no-one but the most hardened technophobes, the data was accessible. Its discovery brought the case to a rapid conclusion and nearly brought about a wasted costs order against the claimants solicitor. The lesson here is to recognise early on the times when expert help is needed. Individual items of data are often replicated far and wide. On their travels through the internet, the billions of emails that are sent and received each day have many ‘resting points’. The most significant of these in a business investigation are likely to be the email servers or vault systems – if used - through which they pass. If emails are stored centrally, then it is also likely that they will be backed up routinely. A monthly back up policy significantly increases the chances that the same emails are captured and held at least a dozen times in a year. If emails are deleted, then it is likely that they may be found on the hard drive of the computer that was used to delete them. When conducting a factual investigation, these ‘resting points’ are the three most common sources to turn to. However backup tapes can be voluminous and badly organised - making it expensive to restore and extract data from them. At the very least, backup tapes should be removed from circulation, so that they cannot be overwritten. If there is a need to go through them, sampling may be an alternative to full catalogue and restoration. This works on the premise that the oldest available information will reside on the earliest set of tapes and that these can be compared to more recent or intermediate ‘snapshots’. The problem of (and solution to) volume When data is captured, be prepared to handle it in enormous quantities and have a strategy for reducing it. Practice Direction 31B encourages the use of technology and good working practices such as data sampling, de-duplication and using a staged approach to disclosure for controlling volumes and costs. Some examples of the filtering options that could be utilised to help limit the cost and burden of e-disclosure are: • Isolate documents from a certain key date range and exclude those that fall outside of this range • Focus on particular key custodians or on a particular type or category of documents • The use of agreed keywords • Identify duplicate documents Keyword searching in particular has had something of a bad press, but warrants better explanation. The problem with keyword searching, as generally perceived, is that it has no middle ground. A long list of keywords has the tendency to produce too much information, whereas a short keyword list tends to produce too little. For this reason it has often been described as a blunt instrument. Conversely, the skillful application of powerful search technology can cut through huge swathes of data very quickly, which may lead us to conclude that we have simply lost the sharpening stone in many situations. Successful keyword searches are normally the product of careful thought and testing on samples of live data, rather than being based solely on interviews. Of course, search terms are not fool-proof, however by developing Boolean searches through iteration, the results can be dramatically improved. Testing keywords in this way can seem like an unappealing and endless tunnel, from which there is no escape. But rather, the approach should be to settle quickly on sensible terms by reference to the documents. In other words; do not over-revise your keywords. If you are broadly satisfied with the results, plan to modify the searches if new information comes to light during the course of the review. Take comfort in knowing that supplementary searches can be performed as part of an ongoing sweep up exercise. Be brave enough to move on and alert enough to know when you need to go back. Of course, intelligent or predictive review technology is quickly catching on because it promises to alleviate the burden of time and energy that is required to run searches. Search management is project management Managing a search is managing a project. There are likely to be many stakeholders involved in a search exercise, who each in their own way, will either help you or block you. Therefore to gain the appropriate backing from senior people and to allow flexibility for unforeseen events it is necessary to formulate a robust structure to your search. While it is possible – and in some cases, necessary – to begin a search two weeks before a disclosure deadline, it is not generally a sensible thing to do. There are many aspects to the project - beyond the parameters of the search - that have to be managed.. Budgets are increasingly one of the main aspects that have to be managed. This means that before a project can even begin ,budgets need to be predicted accurately and then sold to financial decision makers in the correct manner.. ESI searching, its tools and costs are not concepts with which many people are familiar, though many have their own views as to how they might be used. When confronted by an additional cost, with no appreciation for how the technology can save money, it is not surprising that in many cases the final decision is not necessarily the most cost-effective. And what about the actual review? Should you outsource, insource, or use intelligent review technology? Whatever method you choose to analyse the documents, you must follow a process in order to achieve defensibility. That process does not need to be overly formal (especially in those cases where the review is managed by one or two people), but the more complex the task, the greater the need for a well documented and auditable process. In cases where budget is a concern, the old adage “you have to speculate to accumulate” often rings true. Well managed application of intelligent review technology can dramatically decrease the man-hours required in a case, and show a solid ROI that outweighs the up-front cost. Thursday, August 11
Orange Legal extends its product range - and its color palette
by
Charles Christian
on Thu 11 Aug 2011 13:19 BST
Orange Legal Technologies, a provider of electronic discovery litigation, audit, and investigation services for law firms and corporations, has extended its product range – and its color palette – with the launch of its new PurpleBox In-Place Collection and Assessment Appliance. The PurpleBox can provide legal and IT professionals an affordable and robust tool for collecting and assessing ESI by allowing users to efficiently detect, identify, search, and report on newly considered and previously privileged ESI across multiple document repositories.
Delivered initially as a downloadable on-premise virtual appliance, the PurpleBox provides targeted functionality that allows legal and IT professionals to reduce ESI data sets into manageable sizes prior to costly and time intensive downstream ediscovery tasks such as analytics, processing and review. “Collecting and assessing ESI in an affordable manner that comprehends not only newly considered ESI but also previously privileged ESI is a growing challenge for ediscovery professionals,” says Bret Laughlin, CEO & President of Orange Legal Technologies. “Whether used independently or as a front end complement to downstream ediscovery platforms, the PurpleBox helps reduce all ESI into manageable data sets prior to costly downstream eDiscovery tasks.” The ESI Recycler capability of the PurpleBox also allows users to easily ingest and include assessments of previously privileged ESI during the initiation of new matters. This capability allows users to consider previously privileged attorney-client communications and work product without having to conduct additional time and cost consuming reviews. PurpleBox will be generally available in the third quarter of 2011. www.purpleboxsystems.com Thursday, July 14
Bloomberg can now offer cloud users ediscovery and archiving
by
Charles Christian
on Thu 14 Jul 2011 15:34 BST
Bloomberg announced today that Bloomberg Vault, its electronic communications compliance offering, integrates with Microsoft Office 365. Bloomberg Vault gives financial services firms using Microsoft Office 365 a cloud-based solution for meeting global regulatory and risk management guidelines for electronic communications.
Bloomberg’s strategic alliance with Microsoft allows Office 365 subscribers to easily add Bloomberg Vault as a managed service that includes essential features such as real-time policy management, search analytics, eDiscovery and secure archiving for corporate emails and messages. "Financial services firms are struggling to meet regulatory and legal demands for the management and storage of electronic communications," said Harald Collet, global business manager for Bloomberg Vault. "Compliance mandates are increasingly complex and the capital costs can be significant. The aim of Bloomberg Vault-Office 365 is to help financial services organizations embrace the cloud and meet stringent regulatory requirements.” Key Bloomberg Vault functionality for Office 365 includes: · Integrated and secure archiving of all electronic communications as a hosted service, helping companies to reduce overhead costs by leveraging the cloud; · Specialized features designed to help financial firms meet compliance requirements through real-time policy management, advanced search, eDiscovery and electronic records retention and preservation; · Biometric security for compliance officers to enhance access controls. More than 300 financial service companies have adopted Bloomberg Vault to manage growing legal and regulatory mandates governing corporate data. Thursday, June 16
Predictive Codings Wars 2 - Recommind Strikes Back
by
Charles Christian
on Thu 16 Jun 2011 19:59 BST
The Predictive Coding War in the US ediscovery space continues to rumble along with Robert Tennant, the CEO of Recommind, now adding his comments. You can read his full comments by following the link but we were amused by this remark...
"Some commentators claimed our patent might be difficult to defend due to the existence of prior art. In one blog post, ironically, the author cited a technique called LSI and work by Dr Thorsten Joachims around support vector machines (SVMs). The author was apparently unaware that Recommind invented and holds another patent on PLSA (its uses an algorithm that was invented to overcome some of the serious limitations of LSI) and that Dr Joachims was an early advisor and technical contributor to Recommind." www.recommind.com/blogs/20110616/of_predictive_coding_and_patents |
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