Analyze Email First, Talk Later

More than perhaps any other type of case that companies deal with, employment disputes often boil down to “he said, she said”. Since witnesses are rarely present, both sides quickly then look to email for supporting evidence. This usually happens behind closed doors giving the innocent bystander no visibility into how the process works. That’s why the case of the Justice Department and the 8 fired US Attorneys is so interesting – it illustrates what happens every day in similar, less high-profile employment disputes.

The questions are always the same:

1. Who made the decision? Initially, the answer given was Kyle Sampson, the Attorney General’s Chief of Staff. But email told a different story, showing that the Attorney General was involved, something that Mr. Sampson later confirmed in Congressional Testimony.

2. Why were the people fired? Initially, the answer was “performance reasons”. But internal department e-mail messages show consideration was also given to the views of senators, administration policy priorities, and legislative goals.

3. Was the decision justified? Well, that’s where the evidence stops, and human judgment comes in. Supporters of the decision would say it was perfectly justified, but poorly executed; opponents would argue it is more evidence of politicizing the judiciary.

As in other employment disputes that occur outside of the public eye, email analysis takes the “he said, she said” out of the situation. If you know who made the decision and why, it becomes much easier to decide whether the action was appropriate. The current difficulties at the Justice Department stem as much from the fact that they did not analyze their emails before making public statements, as it does from what they actually did.

FRCP Rule Changes: What’s The Big Deal?

As any venture capitalist will tell you, there are two forces which open the window to creating huge, new businesses. The first is a technological breakthrough – think internet, the microprocessor, or mapping the human genome. The second is a change in the regulatory environment, such as airline/telecom deregulation, the new subsidies fueling the boom in clean energy – and the new Federal Rules of Civil Procedure (FRCP), which came into effect on December 1, 2006.


In the legal world, the new FRCP guidelines are a HUGE deal: it is the first time they have changed in 38 years, which is perhaps not surprising since they require approval from Congress and the Supreme Court. As you would expect from our greatest legal minds, the Rules themselves are long, complicated, and (for most people) the perfect antidote to insomnia. But from business’ perspective, the net effect of the changes is pretty simple: there will be a lot more e-discovery.

To understand why, consider the average company with revenues over $1B. According to a recent survey, this “average company” is concurrently managing 556 cases. If you assume that 50% of its cases settle before going to court, then before the FRCP rule changes this company would only have been doing e-discovery on 278 cases.

That all changed on December 1, 2006, when Rules 16 and 26 were amended to provide the court early notice of e-discovery issues. Under Rule 16(b), parties must “meet and confer” at least 21 days before the scheduling conference which, in turn, must occur within 120 days of filing a lawsuit. Rule 16(b) further states that the scheduling order must include “provisions for disclosure or discovery of electronically stored information”, while Rule 26(f) requires that parties “discuss any issues relating to preserving discoverable information and to develop a proposed discovery plan.”

The bottom line: companies can no longer leave e-discovery for later in the process. Thanks to the FRCP rule changes, they must now define and share their e-discovery plans at the “meet and confer” which occurs within the first 99 days of a case. Since cases rarely settle that quickly, our “average company” is now obliged to do e-discovery on all 556 of its concurrent cases, not just the 278 that do not settle. For the corporate legal department, that means their e-discovery workload has doubled overnight, with no increase in manpower to cope with the extra work. So companies are forced to reconsider their e-discovery process and look for ways to leverage technology to cope in a post-FRCP-rule-changes world.

In case you were wondering, I did not figure this out for myself. It was first explained to me by the folks over at the Nassau County Attorney's Office, and has since been echoed by many of our corporate customers.

Email, Politics, And The Media

I will let others better qualified than me comment on the political implications of the recent furore over the firing of several US Attorneys. But one interesting aspect of the story from my perspective has been seeing email front-and-center in the news cycle.

Everyone from CNN to the Washington Post to the Wall Street Journal has led with “email-driven” stories, with headlines like “Rove, Gonzales discussed firings, e-mails show”. On March 14, the Journal (subscription required) provided this chart and reported:

Emails between White House aides and Attorney General Alberto Gonzales's chief of staff show an orchestrated effort to fire several U.S. attorneys, counter to Mr. Gonzales's previous assertions that the firings weren't instigated by the White House.

Today, the Washington Post led with (bold and underlines are added by me):

The Justice Department advocated in early 2005 removing up to 20 percent of the nation's U.S. attorneys whom it considered to be "underperforming" but retaining prosecutors who were "loyal Bushies," according to e-mails released by Justice late yesterday.

The three e-mails also show that presidential adviser Karl Rove asked the White House counsel's office in early January 2005 whether it planned to proceed with a proposal to fire all 93 federal prosecutors. Officials said yesterday that Rove was opposed to that idea but wanted to know whether Justice planned to carry it out.

The e-mails provide new details about the early decision-making that led to the firings of eight U.S. attorneys last year, indicating that Justice officials endorsed a larger number of firings than has been disclosed and that Rove expressed an early interest in the debate over the removals.

Setting aside the politics of all this, the press is using email to address two questions: who was involved, and are their public statements accurate? This is very similar to how I see email being used every day in the corporate world. Any legal proceeding or corporate investigation centers on understanding who knew what and when – and email is the place lawyers and investigators go to find that out.

Why? Because the beauty of email is that it is the source of truth, the indisputable statement of record. No need to ask people for incomplete recollections, no need to filter out the spin; just analyze their email and you will find out who did what – and perhaps even get a window into how they decided to do it.

“I Missed The Boat”

The other day, I heard that a local technology company had a lot of pain around ediscovery. Within hours, one of our board members had contacted the General Counsel who informed us that they had just purchased a product for eDiscovery 3 weeks prior.


That evening over dinner, I summarized the situation by saying to my wife that “I missed the boat.” My 3-year-old son, who was also at the table, immediately started to quiz me: “You missed the boat? The boat left without you? You were late so the boat had to go? There wasn’t room on the boat for you?” For days afterwards, when I left for work, he would ask me: “Are you going on the boat today?”


The thing that really struck me is that we often speak in metaphors, and it is not just 3 year olds who have trouble understanding. One of our customers is a large manufacturing company. On deploying Clearwell to analyze its email, the company discovered a large number of messages with the expression: “The eagle has landed”. That struck them as rather odd, so they investigated and discovered a group of employees were illegally selling company equipment on the grey market and every time they made a sale, they would let those involved know by sending out an email saying “The eagle has landed.” Viewed alone, the expression looks innocent enough; once viewed in the context of emails flowing back and forth, it was clearly a statement of guilt.


Examples like this illustrate why simple keyword search is not enough. Companies need more sophisticated tools which, among other things, group emails into topic areas and link them into discussion threads, to surface coded expressions and analyze them in context. To rely on keyword search alone would be like someone at Proctor and Gamble seeking to analyze point-of-sale data from Walmart with a pocket calculator.


Of course, that doesn’t help me explain missing the boat to my son. So over the weekend, we took him on the ferry between San Francisco and Sausalito – just so he knows I don’t miss the boat every time.

I think, therefore I blog

I first became aware of blogs in 2003, when they were explained to me by a venture capitalist who now works at Six Apart. Since then, I have become addicted to over two dozen blogs, which give me news and insight into several topics of interest such as technology trends, web applications, search, and venture capital. But it was not until now, 2007, that I have been tempted to put pen to paper (or keyboard to web page) and write a blog myself.

Why now? Not so much because, as one of my colleagues mischievously suggested, blogging would be a cathartic exercise that keeps me out of trouble (i.e., whatever he is up to). My desire to write a blog stems from having something to say – about technology and how it impacts everyday life for so many of the people I meet.

As a starting point, I look at email and how it has changed the workplace. In the mid-‘90s, when working at BCG, voicemail was my primary messaging platform, I regularly got memos in my (physical) mailbox, and many evenings were spent standing over the fax machine; today, I rarely leave voicemails, never send faxes, and have forgotten what a memo looks like – everything runs through email. Thanks to EMC, HP, Microsoft, Symantec and others, there are lots of ways to store those email messages and attachments. The result is a rich, treasure-trove of information in which every scrap of data is time-stamped and attached to a person’s name.

How interesting it would be to unlock the value of this information. How fascinating to glean lessons from watching how information flows between people. This was the genesis of Clearwell, and email intelligence – essentially, business intelligence for email.

This growth in email and document stores has also complicated life for enterprises. Just ask Morgan Stanley, who was fined over $1B for failing to produce emails relevant to a court case, or Intel, which recently got in trouble for the same thing. Ask Apple who spent 26,500 hours sifting through over 1 million emails and documents in response to a stock option investigation, or Mercury Interactive which had to analyze 2 million emails and documents.

As the CEO of Clearwell, I sit at the intersection of all these trends: the growth of email, which has changed how we communicate; the pain companies feel in analyzing their growing stores of email and documents for legal discovery; and, the fascination that we all have for what can be learned from analyzing the hundreds of messages we send and receive every day. In this blog, I will share my thoughts on these topics – and related subjects that catch my eye.

Since I am just starting out, I should also warn readers about what this blog will NOT be. There will be:

• No banal accounts of every day life, such as what I see from my window (a parking lot) or what time the mailman arrives (no idea);
  

• No soap-opera style, breathless accounts of servers straining in the middle of the night; and,

• No mindless re-posting of PR propaganda or blind recitation of news stories.

For models of what I have in mind, I look to Dave Kellogg’s excellent blog on topics relating to Marklogic (thank you, Dave, for your encouragement) and John Battelle’s blog on search, perhaps the first blog that I read on a daily basis. I hope I can interest my readers as they have interested me.