Wednesday, September 23, 2009

"Why does eDiscovery cost so much?" ... DIY Kits don't come with Experience ...

In 2005 "Industry Analysts" believed that by 2014 the Litigation Support Industry would boom to a $10billion money pit. Not including Attorney / Law Firm fees. The shear amount of electronic data within companies has grown 5k% since the intrduction of Office 3.1 (Windows 95). As a society, we were once morphed about saving files to a 3.5" 1.44mb floppy disk now we salivate while purchasing 1TB external (portable) drives from Wal-mart for less than $100 ... both of which easily fit in your pocket.

Take a walk with me and lets review some more history as I attempt to paint a picture depicting the future "commoditization" of Litsupport Services.

In the early 1990's Business Process Outsourcing made great business sense as companies took notice of overhead costs that were a distraction from its core competency (and bottom line). Law Firms could easily identify with how difficult and daunting of a task it took to track and recoup "minor" expenses related to a specfic client matter. These minor expenses, if identified, could easily add revenue and profit to the bottom line. The Outsourcing concept was simple as it focused on the conversion of uncontrolled variable and consumable costs to becoming a profit center for the law firm. Today we refer to this practice of outsourcing as Litigation Support Services (Litsupport).

During the early 1990's Litsupport was all about paper. All pertinent business information was maintained in a paper document that required a multitude of duplicative sets. It was not uncommon to make 5-7 copies during discovery in preparation for a relevancy review. Easily followed by another 15 sets for productions to the Courts and Opposing Coumcil.

Year ... Medium of Discovery ... Major Variable Cost Components

1990: Paper = per Click Model

1994: Paper + Floppy Disk = per Click + per Printed Page + per Image

1998: Paper + Floppy + CD = per Click + per Image + per Printed Page

2003: Paper + CD + DVD = per Click + per Image + per Gigabyte

"Paper will go away and a new star will emerge ... eDiscovery" ... (cha-ching cha-ching)

2008: CD + DVD + External Hard Drive + Forensics + Hosting = per Image + per Gigabyte + + + +

What's next? ....

Flat Fee Pricing based per Custodian?
Monthly Volume Pricing for building / renting a Private Cloud?
Annual Subscription based Pricing?

... Death to the per Gigabyte ... ummm ... doubt it! ... You do know Paper is still here too ...

There are no pricing standards and the notion of commoditization is the culprit for this lack of standards.

The landscape of discoverable data continues to evolve at a rapid pace. Yet the demands imposed by the Courts to prepare, review, respond and exchange have not changed in a proportionate scale to the amount of effort required of Legal Teams to mount up and prepare. Legal teams continue to source, daily, for resources to meet the increasing demand imposed by the always declining ticks of time. Litsupport Services Solution providers race to release faster, cheaper, accurate SaaS solutions that inherently cost more to develop.

(hint: last sentence is an oxymoron for those not getting the subliminal message)

In 1990 a legal team could expect to pay under $15K for Litsupport Services as technology was non-existent, paper and labor were CHEAP. Today the same case strategy involves 10x the amount of data. Although technology has advanced workflows to maximize efficiency, the legal team is easily faced with spending $100k in Litsupport Services.

"Just as the World Financial Markets correct every 20 - 25 years so will the Litsupport Services Industry; often mislabled as eDiscovery" (term helps to justify lack of service required to produce)

Cost associated to purchase out-the-box software, storage and private clouds are extremly low ... (true professional would steer clear of the public cloud..right??) ... the price of Experience will always grow.

As more and more large companies gobble gobble real service providers and legal teams develop in-house platforms to curve cost associated with legal eDiscovery collections and processing ...

"Don't be a Button Pusher Buyer for eDiscovery ain't Childs Play"

... invest in Experience, SOW Standards and continuous Education and Training. Not doing so will only result in a rise of costs (redos are real $$) and possible ethical violations during the entire Litigation Lifecycle.

Sanctions Hurt!!!

"changing or blaming a Service Provider is easy ... explaining and defending internal snafu's and why capital investments sit idle .." well you get the drift.

Theses are the sole expressions of the Author based on the experiences of the Author. The expressions do not represent any entity for which the Author is employed or contracted.

For more common sense views from the Author:

inspire. innovate. implement.

Thursday, September 17, 2009

Take your time when in the "Clouds" ... Think Defense

... continued from May 2009 post ...

1. What lives in your "Cloud"?
2. Where does your "Cloud" hover?
3. What is stated in your "Cloud" EULA?

Lets begin with those simple questions. If the answer includes a stutter or hesitation the discovery phase of litigation just got real expensive.

Listen up (read closely)!

The bleak economy has caused most companies to panic over luxury expenses like new desktops, laptops, servers and storage. The notion of cloud computing is extremely appealing as a form of modern day Technology Outsourcing. Electronic communications and other edata considered Highly Confidential is re-assessed and downgraded to levels that don't require as much privacy. Privacy that is challenged within the "Cloud".

Wait how dare one suggest that your "Cloud" is not secure? ....
.... Secure maybe ... but definitely not Private and definitely Easily Accessible ... definitely Discoverable!!!

Corporations use of external "Cloud" computing and storage should only be limited to normal course of business documents and document templates. This applies to entities where an internal VMware, SBS and/or Email Server setup is not existent or feasible. Thus services from Amazon, Google and Microsoft are appealing as the bright idea light shines a message reading it's safe to store and manage all corporate data in their stratosphere.

"... their stratosphere" ...

The company is provided a block of space with the ability to grant endusers access to the block. Endusers have the permissions to read, edit and publish content within the block via any internet connection. The uptime and maintenance are managed by the block provider. A true convenience and excellent method for reducing costs related to capital expenditures.

Soooo ... Where is this "block" of space?; Which server is being accessed that provides and tracks permissions for the corporation to the storage device?; Who is monitoring activity to slow and deter unauthorized intrusions?; When the shared storage is full how is block space reallocated, distributed and made seamless when more is requested?; Should one really be concerned with such a trivial thinking? ... Is this a Privacy concern? ... Perhaps ....

Hopefully with adding "Cloud" computing and storage solutions to the business process model, the wildly old Veteran IT Professional is still employed (or at least on retainer). Most human beings treat the complexity of "Cloud" computing as a simple brainless way to manage and store edata "however you like". Which is great, until an investigation ensues.

Investigations are no longer centric to office equipment and storage. In recent years there has been sharp increase in the seizure of endusers "personal" home and portable equipment in response to a corporate investigation. The primary goal of the Investigator is to report on where information was created, when it was created, who the information was shared with and the number (location) of instances for where the information lives. A cumbersome yet fairly straightforward task for the Investigator ... except .... today the "Cloud" renders new challenges for Investigators.

When investigating data sources not managed directly by the company nor the enduser, the "Cloud" EULA agreement is critical. Within a matter of seconds the Veteran IT Professional can provide the internal computer architecture Archive & Retention policy as well as the backups if required for the investigation. Investigators are very interested in how data is kept as it gives character and shows trends within the business process model. Most have no working knowledge of how nor when or where their data is being replicated or archived by the "Cloud" provider. There is not any legislation that currently addresses the expected role of the "Cloud" provider to assist/respond in such investigations. Nor are there any standards for accessing and "downloading" data kept within the "Cloud" for preservation and review. Email host (cloud) providers included.

How to prepare for a "Defensible Collection" from the Heavens? ... The common sense approach

Collecting eDocs
Investigators, with the Veteran IT Professional, first focus on obtaining access and usage log reports from the "Cloud" provider. If attainable, will present a tenative roadmap depicting the history of when files where published, accessed and modified within the "Cloud". Second, if attainable, a request of system maintance logs for the corporate "block(s)" from the "Cloud" provider. Third, a directory listing of data stored within the "block". This is used in the attempt to implore visual logic in the identification of potentially responsive edata, in most cases this is not nearly as effective for data in "blocks". The system metadata is not reliable thus all of the data needs to be shut off from access to the endusers so the data can be downloaded and preserved for review. Depending on the sensitvity of the case, good lawyering skills and shear volume of data will determine the amount of time the corporation, endusers and "Cloud" will be potentially be crippled. During the course of a typical investigation any unauthorized proprietary information violations are removed before returning collected evidence ... This topic alone deserves a separate post for how to permanently remove such edata from within the "Cloud".

Collecting eMail
Microsoft Outlook is no longer the standard for accessing, downloading and managing web-based email. In the same manner that implementing a Hosted Exchange Server is becoming a standard for businesses as it has become increasingly burdensome to combat spam and the hackers.

The Investigator no longer just ask "where is your exchange server and what is your email retention policy?". Today it is more concise to ask, "how is email managed?". Are endusers permitted to access personal webmail through the corporate email client?

In this mobile age the demand from technophytes to have unlimited access to information has birthed FREE resources to meet every need. Especially EMAIL. Internet email giant AOL just within the last 5yrs began offering free screen names in a move to compete with the popularity of Yahoo, Google and Windows Live (the new hotmail). It is predicted that 1 out of every 5 humans has a gmail, aol, hotmail and/or yahoo email account. For the humans that are employed, 3 out of 5 forward business emails to their personal email account as a matter of future reference.

Taking these types of statistics into consideration, the Investigator is required to engage each enduser about their personal email management. Typically IT can't and doesn't control or regulate these activities.

"... everyone received and signed the handbook acknowledging the Computer and Internet policy ..."

As this trend becomes even more common the need to collect from enduser personal webmail clients becomes a necessary intrusion. The most common forms are POP3 and IMAP mail. The method of analysis and collection will vary for each type of webmail client. The most common collection utility for webmail is to capture (download) to Microsoft Outlook Client and export to a .PST file. The process needs to be recorded in the chain of custody documentation and audited for accuarcy.

In closing for now, in the event your company is considering implementation of "Cloud" computing make certain of these items:

1. Update the Archive and Retention Policy to include the "Cloud"; and
2. Update the Internet and Computer Use Policy to include business emails and transmission of business email including using personal thumb drives.

The author is a supporter of cloud computing and believes that caution must be exercised before one leaps. The opinions are solely those of the author and experiences of the author's tenure in Legal Discovery.

Monday, September 14, 2009

"Why does eDiscovery cost so much?" ... Increase your knowledge and Reduce your Costs!

ARMA International and ILTA present the Legal Infrmation Technology Conference 2009. The Conference is being held in Orlando Florida and is focused to educate legal professionals on topics like information management, upcoming new regulations for information management and how to reduce the impact of cost associated to information management.

For the serious concious Legal Professional this conference should be added to the list. As well as the ARMA conference that will be simultaneously occuring at the same venue during same time. The $1,200 attendee fee and cost of travel are well worth the expense. Considering the knowledge to be gained and how it can the translate into saving $1,000's with regards to Legal Discovery Costs.

Read more about the conference at

Disclaimer: The Author has no affliation with ARMA International nor ILTA. The opinions are soley those of the Author based on common sense.

Sunday, September 6, 2009

"Why does eDiscovery cost so much?" ... Make a living Archive & Retention Policy it will save $1,000's

By no means do I claim to be an authority in Records Management. As of date eighteen years and six months of experience with the Discovery phase of litigation have shown me that not enough emphasis is placed in Archive and Retention. Every organization has a policy ... fact is that its just that ... a policy. A policy is dead without enforcement. Thus Discovery Professionals flourish as a result of negligence.

Try this out for size...

1. Legal matters rise from information one party claims against another to be damaging or acquired and used in bad faith;

2. Information is presented in the form of correspondences and other evidence whether in paper, electronic or audio format;

3. All forms of information are subject to evidence discovery in response to an investigation or legal claim; unless

It can be proven that only a signifcant set of isolated evidence information is responsive.

"ARMA International ( has been in existence since 1955. ARMA provides standards for managing records and information - paper and electronic."

No matter the Industry there is a regulatory stipulation defining a specific time requirement for maintaining business related records on and off-site. The boom over the last decade has been to create the electronic file room or eFile Room. The concept involves scanning both archival and day forward paper records to servers like Microsoft SharePoint. Additionally any and all electronic documents from all departments, including emails are stored in the eFile Room. All this is done to ease the burden of File Managers and increase efficiency with the accessibilty of business documents. The eFile Room provides a sense of security as the probabilty of ever losing a document is minimized. Record Retention Compliance just got simple (or did it).

"... eFile Room records management platforms save the environment while at the same time expose serious risk when faced with a regulatory investigation or a legal matter ..."

.............."Prove it" says the Bright Idea Professional

The latest commercials from Intel, Amazon, Microsoft, IBM and other leaders of collaborative technology paint a picture of safety in the "Clouds". The message is the future for how families and business professionals will be able to manage their day-to-day affairs without fear of ever losing a document. As well as the sublimable message that your data is "Safe". Yet another great tool to save the environment; its efficient and productive records management; provides ease of on-demand accessibilty and lets not forget it will be just as easy to get all evidence in response to an investigation or legal matter.

It is darn right scary to imagine the effect of an investigation or legal matter that demands a response where evidence is requested from a person or business entity that doesn't "recycle".

Adherence to a documented Archival and Retention Policy will save $1,000's in cost associated with responding to a claim or investigation. Business and/or Personal.

"...most people... like to be nostalgic and collect junk ... " know when to unload

Here are some basic items to consider for the eFile Room and/or "Cloud":
Active Records
Archive Storage
Rules for Destruction

Just like two decades ago, businesses depended on the document clerks and file room managers to be responsible for archive and retention rules. Today this type of responsibility is no longer centralized. Yes there is a central efile room, yet anyone can make a deposit with the hopes it is in the correct "cabinet" (directory or folder). The major difference now is the activities of the efile room require a Monitor better referred to as the eLibrarian. The same governence that set the standards for Records Management then apply today for the eFile Room Managers.

eFile Rooms require continuous development, implementaion and monitoring of a Smart Archive & Retention Policy. The policy can no longer just be written by IT and Human Resources. The Legal Response Team must be included along with a traditional Records/File Room Manager.

Again, Yes! the type like everyone had in 1980! Not like these newbees who don't know true organization techniques. The tenured Records Manager knows the rules for document retention and is the best translator for defining where documents should live within the network. They will also know who should be allowed access to business critical documents including those related to human resources, accounting, legal and regulatory matters. These Professionals also have the knowledge and experience for the Archive storage (off-site) and destruction schedules.

Get the picture ....

"... The more eRecords one has reasonably accessible ... The more it will cost in time and dollars to develop a response ..."

Consistent education and communication are the keys to success. All IT Professionals and anyone claiming to be an eManager, eLibrarian or whatever your college has dubbed as the cool name...should be required to register and actively participate in ARMA. The decisions made by these professionals for corporations will either be viewed as Smart Policies or be the nightmare of the Discovery Phase of a Regulatory Investigation or Legal Matter.

"don't be an eRoom dumper & don't be a follower when playing in the CLOUDS as the dangers are unforeseen ..." (similar to that of a Prickly Pear Mojito)

Friday, September 4, 2009

"Why does eDiscovery cost so much?" ... The Value of ECA...

There is one simple premise here....ask the right questions upfront to uncover thought and fact. When one relies soley on the sales pitch of the software business development guy who says use this form and click here....well...need I say more?


ECA a.k.a Early Case Assessment is the latest buzz term to describe "sophisticated" project management. Project management is no longer people driven. Instead we have gotten caught up in the perception that people make mistakes and automation is accurate. Thus it only requires the right tool and a documented statement of work by the IT guy running the $80k appliance at $225/gb of ingested ESI per matter.

Project managers provide added value for their leadership, experience and ability to communicate the process including the risks involved. Which is the exact same expectation for doing ECA (Early Case Assessment).

A "Professional Title" doesn't define knowledge; Knowledge is only gained by experience; Experience requires time; there are no shortcuts in TIME.

Here are a few factors to consider when building your Legal Response Team:


The prime benefit in ECA is to set the stage for litigation review and response. ECA that includes ESI identification via e-scoping and datamaps before preservation and collection.
Implementing this type of Smart Discovery technique has a direct effect with managing the esclating cost of discovery for litigation.

The average legal matter has a value of $1,000,000 thus a legal budget of not more than $300,000 in total. The case will average 5-10 custodians with 3 evidence items each and a corporate business server.

In the above example there is the potential of more than 3 terabytes of data to preserve and analyze for responsiveness. Using the standard EDRM model without Smart Discovery techniques for data preservation could cost in excess of $300,000...before Attorney Fees!!!!!

"I know my case is strong" ... Ummmmmm ... BUDGET BUSTER ... "Which way is OUT!?!"

It becomes apparent really fast that experience and logic are required components to the solution. The notion that technological automation will save time doesn't equate to saving money. Experienced Legal Professionals with eDiscovery Consultants and Corporate IT as part of the Legal Response Team logically identify ESI to be collected and preserved.

"Reducing the junk will trim the ESI to be collected by 70%" ... I dare you to do the math....

The value of ECA (early case assessment) is in People not technology, SaaS or whatever your buzz word is today. Invest your confidence in those who have taken the steps to invest in themselves and education by experience. Far too often "Professionals" get caught in the hype of a cool new feature and don't equate the value properly. The equation most use is improved efficiency will reduce other manual cost while increasing productivity, consistency and accuracy.

"Technology is a compliment to the human mind...not a replacement for intellect".