E-Discovery Trends Take Center Stage at ILTA

This is the first of several guest posts from Kurt Leafstrand, formerly a rocket scientist at MIT and now an e-discovery guru at Clearwell. Kurt was on vacation last week, but couldn't resist spending part of it at an important gathering in Florida. His report:

Last week, 3,000 of the country's top legal technologists gathered in Orlando for the 2007 International Legal Technology Association (ILTA) conference. Lawyers will always be lawyers, so the hotel staff seemed particularly diligent as they secured the electrical cords to the floor of the exhibit hall, and the Starbucks seemed a bit on the cool side. However, the discussions and technology were far from cold, and the show was a great chance to learn from some of the industry's leading practitioners from both corporations and law firms.

E-discovery was the focus of many of the conversations, and several emerging trends were at the forefront:

Courts are taking a more active role in e-discovery: With the changes to rule 26(f) in the FRCP, parties are required to confer early (and agree on!) e-discovery. This has pushed the courts to start issuing guidelines to help remove some of the ambiguity from this process and to help parties reach a faster consensus. In one session, Browning Marean of DLA Piper highlighted as "best thinking" a protocol from the Maryland District Court, which included:

• Defining minimum standards for the kind of information to be exchanged
• Recommending that each party have an ESI coordinator (this may lead to IT/legal tech being brought into the meet and confer process)
• Setting defaults to be applied if parties can't agree

One panelist pointed out that, in spite of all this, "the average litigator is woefully unprepared for the e-discovery aspects of the rule 26(f) conference." With the courts showing early aggressiveness in ensuring that the FRCP changes are actually put into practice, it appears that the already intensive focus on ESI will only increase, so firms and corporations need to get their acts together quickly.

Discovery battles are taking center stage: In what many see as a worrisome trend, e-discovery battles are increasingly common and focus "not on the case and its merits, but on spoliation and sanctions." Because of the error-prone nature of most e-discovery efforts, it often pays to look for "little slips... did some executive accidentally delete his email? Was there a failure to produce?" One astute participant commented that the "interest in sanctions is because electronic data is so treacherous. It's much easier to get it wrong than right."

Two current e-discovery "train wrecks" serve to highlight this:

• Intel/AMD: Despite elaborate and costly efforts to comply with preservation orders across 100,000 employees dispersed around the world, Intel found itself having to advise the court of "document retention lapses that have occurred...after the filing of complaint."
• Qualcomm/Broadcom: The attorneys who represented Qualcomm in its unsuccessful patent lawsuit against Broadcom found themselves summoned before the court to show cause as to why sanctions shouldn’t be imposed for their failure to produce documents pertinent to the case: approximately 230,000 pages of documents, actually.

How do corporations and firms better manage their risk in light of these trends? One panel of senior partners suggested that parties need to work smarter, not harder, when it comes to e-discovery, and understand that the state of the art is moving toward a highly iterative e-discovery process. In most initial e-discovery requests today, “the signal-to-noise ratio is such that search results are often meaningless.” This new approach will need to be “negotiated throughout the e-discovery process,” but is going to becoming increasingly critical for both sides of the case to work together on in order to assure that they don’t find themselves in the same (costly) boat as Intel and Qualcomm. This trend was especially relevant to ILTA attendees, because the only way to make this iterative process work is through their active participation, assisted by the next generation of e-discovery 2.0 technologies.

E-Discovery Is Taking Off – And Investors Know It

Regular readers will know this blog is about e-discovery and not about my company, Clearwell. That said, every now and then, the two intersect and it makes sense to write explicitly about Clearwell, since our experience speaks to broader market trends.

That’s the case today, with Clearwell’s announcement of 2 significant milestones. First, the company has crossed the threshold of 100 customers using the product to lower their e-discovery costs. Since the technology bubble burst in 2000, I have been involved with several early stage companies that have brought new products to market, either as founder, CEO, investor, or advisor. All have capable teams; some attacked huge markets; none have seen the rapid customer adoption that we have experienced at Clearwell. Nor were they able, as Clearwell has done, to so quickly break into top tier accounts such as BP, Boeing, Cisco, Del Monte and a host of other household names which I am not at liberty to mention.

The second milestone is that Clearwell has closed its third round of funding for $17M. This is a larger amount than planned, and it happened much more quickly than I anticipated. It was driven by the simple investment philosophy that has powered large investments elsewhere: find a large, growing market and pick the winner, as it will likely be worth more than all the others put together.

I see both milestones as significant for the broader e-discovery space. The fact that a company can introduce a product and, a little over a year later, have over 100 customers using it, says that there is huge latent demand. Clearly, everyone from small hedge funds to mid-sized insurance companies to large departments of the federal government desperately want to lower their e-discovery costs. If history is any guide, this untapped demand will be recognized by a large number of existing players who will all repurpose their existing products towards e-discovery. But, again looking at similar phenomena play out in other markets, the space will likely be won by a “pure-play” vendor unencumbered by the baggage of a legacy business. The investment community recognizes this and is increasingly willing to open its check book in the hope of backing that winner.

No doubt, other young companies will raise money to attack the e-discovery opportunity, and other existing players will continue to dress up their generic search or storage solutions in e-discovery clothing. But over the next 12-24 months, a leader will emerge from the pack and will grow into a significant, standalone company – and the others will either sell for whatever they can get, or try to find a different application for their technology.

Stock Option Back-Dating, Corporate Investigations, And the Remarkable Reyes Verdict

I don’t know if it’s just in Silicon Valley that the Greg Reyes case has received broad coverage. Wherever you are, it’s worth taking note because this is quite a remarkable verdict. Mr. Reyes, the former CEO of Brocade, was convicted of 10 charges connected to stock option backdating and now faces up to 20 years in prison and millions of dollars in fines. All this despite the fact that:

• Mr. Reyes did not personally profit from his actions, since it was only other people’s options that he was back-dating;
  
  
• There were no “smoking-gun” emails or any clear evidence that he knew he was breaking the law, which is key to overcoming the (plausible) defense that he was just doing what the accountants and lawyers told him he could do; and,
  
  
• There’s no sign of damage to shareholders, given that Brocade’s stock has been unmoved by the whole thing (i.e., this is no Enron/Worldcom).

All this raises a series of questions. First, why would he (or anyone) do it if he does not benefit himself? The best explanation I have seen is Ben Horowitz’s lengthy post on the topic – to summarize, CEOs did it for the same reason that athletes take steroids – to win. Second, how did the government manage to convict him given the lack of evidence? According to Business Week, they did it by showing Mr. Reyes lied to Brocade’s corporate investigation team in 2004, suggesting he knew that what he had done was wrong (note to self: be careful what you say if an investigator comes knocking on the door). Third, what does this mean for others? Let’s just say, if I were the CEO or CFO of any of the other 200 companies implicated in this scandal, I would be pretty worried right now.

This verdict marks a big shift in the fallout from stock option back-dating. To date, the back-dating scandal has mainly distracted management and led to huge legal and accounting expenses. For example, Monster recently announced its plan to cut jobs in the wake of swelling legal expenses resulting from its investigation. But things are about to get more serious. If a jury is willing to convict Mr. Reyes based on evidence the judge thought was so weak that he almost dismissed the case, then no one is safe, Mr. Jobs.

Symantec’s “E-Discovery Connectors” For Enterprise Vault: What Are They and Why Should You Care?

Today, Symantec announced 3 connectors for Enterprise Vault, for analytics, review and content collection. According to the announcement, these will “provide tight integration with third-party case management, review, analytics, forensics and desktop collection tools.”

The idea that archives should integrate with third party products is one I whole-heartedly support and have written about before. My company, Clearwell, has been working with Nick, Scott, and the gang at Symantec on this for over a year. They tell us that we were the first to integrate with Enterprise Vault and, to our knowledge, we are the only ones who have deployed fully integrated e-discovery solutions with Enterprise Vault at several enterprises.

Having said all that (and climbing down from my soapbox), I think Symantec’s customers will need to read this announcement very carefully to understand what it means. To give them a helping hand, let me translate it from corporate-marketing-speak into plain English:

Symantec is releasing 3 connectors which enable customers to ingest files from EnCase and export files to Summation and Ringtail. It is also exposing a new application programming interface (API) so that third-party vendors can more easily build their own connectors to Enterprise Vault.

At this point, most people’s eyes glaze over and they ask “who cares”? Surely, only techies get excited about something as esoteric as a new API. But as the recent excitement over FaceBook’s API has shown, opening up a platform – even in a limited way, as Symantec is doing – can unlock tremendous value. For those customers with Discovery Accelerator v.7.5, the new API will have a huge impact for 2 reasons:

1. It makes integration with Enterprise Vault much easier, so lots more vendors will do it. In their press release, Symantec mentions a handful of companies who are building connectors to the new API and I’m sure more will follow. This increases customer choice, and makes it more likely that Symantec customers will be able to select related products that closely fit their needs;
   
   
2. It enables enterprises to have a smooth workflow across all aspects of e-discovery, from collection/preservation to analysis/review to production/presentation. For example, companies can now collect information in Enterprise Vault, preserve it by placing a litigation hold on key information via Discovery Accelerator, and then seamlessly hand off that information to a third party application (like Clearwell) for review and analysis. This saves a lot of time that would otherwise be wasted on importing/exporting data from different systems, and reduces the risk that something gets lost in the shuffle.

Net net: companies do well by giving customers what they want, and customers want end-to-end e-discovery solutions. Symantec is not the only one to have figured this out; stay tuned for more announcements like this from other archiving vendors.

Everyone (And Their Grandmother) Is Jumping Into E-Discovery

At some point in his blog last year, David Hornik, a venture capitalist, lamented the fact that VideoEgg, one of his investments, had 38 competitors in the online video market – and those were only the ones that he knew about.

A casual observer could be forgiven for seeing the same thing happening in e-discovery. Barely a day goes by without some company in a completely different market announcing that they too now have an “e-discovery solution”. Debra Logan at Gartner, who is fast emerging as one of the leading lights of the e-discovery world, tells me she is speaking to 30 vendors for her forthcoming research – and could easily have covered twice that number. Brian Babinau, the insightful and witty analyst at Enterprise Strategy Group, jokes that: “nowadays, people either build a social networking product or do e-discovery.”

For example, last week Zimbra, an open source email platform which has nothing to do with e-discovery, announced its new “e-discovery features”, which sound a lot like keyword search. Kazeon, which wins the prize for creating the world’s most complex e-discovery workflow diagram, has added e-discovery as one of its primary “solutions”, while Endeca takes a more measured approach, proposing only that its financial services customers use it for e-discovery. The list goes on and on.

Despite the worsening signal-to-noise ratio, all the activity will ultimately make it easier for customers to figure out which e-discovery solution makes sense for them. There’s more coverage from leading analysts, who can help explain the different products; large vendors such as EMC, Symantec, and HP are gradually educating the market; and the industry is coalescing around the Electronic Discovery Reference Model, which breaks e-discovery down into its key elements and explains how they fit together.

If e-discovery follows the path of online video and other fast-growing categories, lots of companies will continue to throw their hat into the ring. But for every hundred “VideoEggs”, there will only be one YouTube.