How Do I Collect Evidence from the Web and Properly Authenticate It? FREE Webinar on Tuesday, July 18, 2017

One of the most important questions in e-discovery today is how to properly and comprehensively collect web content and social media evidence. Like e-mail, social media is one of the richest sources of relevant information about any litigation matter but many lawyers don’t understand how to properly collect it. We resort to old-school tools like the “Print Screen” button, or “Print to PDF,” but those tools are inadequate at collecting all the metadata and source information baked into the web.

There aren’t many tools on the market today that can thoroughly collect web content, which is why I’m happy to team up with Page Vault for a FREE webinar called “Collecting Web Content: Modern Capture Practices for Admissible Evidence” next Tuesday, July 18, 2017. I’m co-presenting with Patrick Schweihs of Page Vault and we’ll be covering the information you need to know about collecting web content and social media as evidence.

As a nifty bonus, every attendee will receive a free copy of the recent Page Vault report “e-Discovery Trends 2017: Web Content Collection.”

Register HERE.

Legaltech 2017 Notes, Observations, and Proclamations

I know we were supposed to call it “Legalweek: The Experience” but it’s hard to get everyone to re-brand in one year, and it still felt like the same old Legaltech (not necessarily a bad thing). Monica Bay offered an expert write-up on the conference remodel but I agree with Mary Mack in that piece that “adding more adds more chaos to an [already] frenetic event.”

For me, it’s just a great excuse to see old friends, get the news from vendors, and enjoy some fancy reception locations in NYC.

Here are some notes and observations from this year. As usual, the overriding topics circled around e-discovery but I found some interesting items in the cracks of the midtown Hilton.

Special thanks to InsideLegal for putting this word cloud together every year. Click the image to see all the word clouds from past Legaltech Conferences.

You’re The Wind Beneath My E-Discovery Wings
Zapproved’s Corporate E-Discovery Hero Awards Celebration

I had the privilege of attending the inaugural Corporate E-Discovery Hero Awards Celebration hosted by Zapproved, D4, and a few others. The “hero” part was a little cheesy, but the event was enjoyable, with Brad Harris doing a fine job emceeing the event.

Michael Arkfeld received the e-discovery lifetime achievement award, graciously introduced by Hon. Shira Scheindlin (Ret.).

Then Craig Ball conducted a cyber-fireside chat with Nina Totenberg. Ms. Totenberg was supposed to be in NYC in person at the event, but there was a tiny little legal-related news story expected to break the next day that kept her in D.C.

Brad told us that Ms. Totenberg would still be joining us virtually and I cringed a little knowing how these things break down. But darned if it wasn’t a perfectly interesting and non-glitchy conversation thanks to the magic of Skype! Craig was as smooth as a jet-black iPhone 7 in transitioning from the podium to the large screen behind him with Ms. Totenberg’s lovely head looming over him.

I also got to sit next to my friend Pete Pepiton during the event which was great.

Zapproved also just posted a roundup of the event with some pretty pictures.

Everlaw had a great booth location on the 3rd floor. Here’s my review of their platform from December 2015.

Molten E-Discovery

I always enjoy my annual chat with Cas Campaigne, CEO of Liquid Litigation Management (LLM). Although I do believe Cas looks better in person than his LinkedIn avatar.

Cas has been doing litigation support for a long, long time, and has seen everything come and go, and come back around again in the litigation industry.
I reviewed Liquid Lit Manager in December 2015 for Legaltech News and found it to be a “a platform that litigators can feasibly utilize from discovery all the way through trial.”

Cas and his team continue to push the bounds of what “litigation software” should be beyond a document review database, or case manager. Cas told me they are focusing on “unifying” the legal process by integrating additional tools that litigators actually need such as budget tracking, witness pages, etc.

They also have some of the best-looking iPad apps available for litigators (which I hope to review soon on


Keep on Corel, Keep on Truckin’

United in E-Discovery Education

At one time, UnitedLex was solely focused on legal outsourcing services but they have expanded to become a “global provider of legal and business services.” I suspect that legal outsourcing still continues to be a large part of their revenue and I like to follow them as a mark of where those services are heading.

Not a whole lot for announcements, but it seems they have quietly started supporting half of all the active product liability multi-district litigation cases and that is significant.

I was also pleased to hear about their Legal Residency Program which is a spectacular idea to help law schools actually produce “practice-ready” graduates instead of just ivory-tower intellectuals. I am always greatly encouraged to hear about law schools offering students real-life, practical education to better prepare students for the reality of law practice (such as @suffolk_law home of Andrew Perlman who I invited as a keynote speaker at ABA TECHSHOW 2015), but UnitedLex is a wonderful example of a vendor giving back and investing in the future of law school graduates.

Inventus won the “Largest Flat Panel in a Booth” Award.

Analyzing your Law Practice
Lex Machina from LexisNexis

I got to spend a few minutes with Josh Becker of Lex Machina and finally got to see what a lot of folks have been talking about lately around “legal analytics“.

Lex Machina uses everything available in the public domain to offer lawyers some automated insight into how judges and courts have ruled on specific issues, as well as helpful way to evaluable opposing counsel, etc. They announced two new tools at LTNY called Damages Explorer and Parties Comparator.

Now I know why LexisNexis swooped them up.

Thank you DiscoveryReady for the best view at a reception.

Running OCR Stinks a Little Bit

One of my more interesting meetings was with a couple of gentlemen from Cullable. While the Cullable website is a bit quiet on the specifics while they’re in beta testing, turns out the platform is a brainchild of litigation support provider Platinum IDS out of Dallas, TX.

My first thought when I heard about the platform was that it steps on the toes of Logikcull a little bit, since they are both obviously looking to help litigators CULL down a large document set into a smaller, more manageable set.

But regardless, it was hard to pass up a meeting with two gentlemen wearing “OCR Sucks” hoodies, which mirrors the site at I was a tad bit skeptical that we need a cloud-based tool for OCR-ing documents since after all, we’re trying to go native and eliminate any need for OCR.

But alas, this is the legal profession, and there will always be paper. So when you get a document dump of scanned images or paper from the other side, this is another tool in your toolbelt that you can use to get everything OCR’d as fast and as accurate as possible.

I liken this a bit to a favorite site of mine at I COULD try to reduce the size of PDF files on my own desktop using different tools, or I could “outsource” that task to knowing that they’ll do it faster and better than what I can do on my desktop.

Besides, OCR is still a high-overhead, processor-hoggin’ task for computers. When you have to OCR large file collections you usually can’t do anything else on that computer because so many resources are devoted to the OCR task. So why not outsource that task to someone that has MUCH bigger computers than you (Google Cloud Enterprise) and can do it faster than you (Cullable claims 20,000 pages per minute).

My skepticality was turned around by the time we were done, and I’m excited to see where this goes.

Nuix standing strong. Read my review at Legaltech News.

Aligning the Planets for E-Discovery
Planet Data

I got to meet with Planet Data to hear how things have progressed since I reviewed their excellent Exego platform in May 2016.

It was great to meet with President Zoltan Horvath (who is super-nice although his name is perfect for being a villain in a Flash comic), Adam Novick and the energetic Laura Marques and we had an excellent conversation about how the legal profession is still wrestling with load files and the need for simpler e-discovery tools.

Planet Data is going strong, and I continue to be impressed with their unique tri-fecta of the Exego offering with Extract, Select, and Review.

There was a tangible presence of the cloud with Ipro handing out cotton candy and NetDocuments with the squeezy toy.

Here’s a Head Scratcher and a Page Turner
Paper Software

This was one of my more interesting meetings.

Ben & Nathan Whetsell (shown in the picture trying to jump out of the picture) developed a Mac-only software called Turner in September 2015 that parses through contracts to provide a simple outline, analysis, cross-references, and more.

I was really just blown away that they decided to develop for the Mac when the vast majority of lawyers are still Windows based. They told me that they prefer the Mac (as do I!) and that’s where it was easier for them to start.

And because their customers predictably requested a Windows version, they developed “Contract Tools” as an add-in for Microsoft Word on Windows. It’s certainly no where near as elegant as their Mac software, but it was an inevitable evolution of their work.

The Turner software is impressive and charming. The generated outline is probably the best selling point but their “token search” is helpful as well. I was most impressed with the ability of the software to update all of the cross-references in the contract when you make a change.

I plan to review Turner for very soon.

Good to see Cellebrite at LTNY since they are arguably the best tool for mobile forensics. Gotta watch that back door though.

Corporate Insight into the E-Discovery Plight
Catalyst Insight Enterprise

I always enjoy hearing what Catalyst is up to since I’ve followed them in reviews for in 2013 and Law Technology Today in 2015.

I wanted to get some additional info on Insight Enterprise since they announced it in January as a tool for corporate in-house counsel to better manage their spend on litigation matters.

I was expecting something akin to “e-billing” platforms like LegalTracker (formerly Serengeti) or TyMetrix but this was much more focused on the spend involved in the matters hosted in Catalyst Insight. It’s a nifty “portal” that will certainly be helpful for any corporation or organization that has standardized on Catalyst.

Catalyst had one of the best giveaways last year with the hat – which I’ve enjoyed while jogging this winter 🙂

Xerox Legal Solutions re-branded to Conduent. And they had a lovely reception Wed. night where I got to see Craig Ball for a few minutes.

May I Have a Deal Room for My Transcripts Please?
Opus 2

I know that Opus 2 was at the show to talk about their Virtual Deal Room but I was still interested in learning more about Magnum transcript management platform that they’ve offered for a while.

One of the primary questions I receive from law firms is about transcript management software. Say what you will about Summation iBlaze (and we can say a LOT) but the software had some excellent tools for managing, searching and linking transcripts. And while the “new” Summation Pro offers some of those tools, it’s not the same.

So firms then look at TextMap, but everyone is concerned with what Lexis is doing with the tool (or not doing).

Westlaw Case Notebook is an excellent tool but many people tell me the price is colossal.

So what else is there? That’s why I wanted to hear more about Magnum. We didn’t have a lot of time (and apparently the entire Opus 2 contingent was ill), but I seek to learn more.

Logikcull had run out of men’s t-shirts by the time I got to their booth 🙁 but I was thrilled to hear about their partnership with New York City.

I Shook the Hand of the Man Who Brought Visual Analytics to E-Discovery

I always appreciate seeing what FTI Technology has been doing with their Ringtail software since I reviewed version 8.4 in November 2014. They’re now on version 9. And last year at Legaltech FTI released their visual analtyics tool for ECA called Radiance.

But this year, I had the pleasure of meeting e-discovery luminary Skip Walter who just recently joined FTI. Mr. Walter was the founding CEO of Attenex which really originated visual analytics for document review.

I vividly remember when the Attenex platform came across my desk. I opened the AmLaw Tech supplement in 2003 and got enraptured in the cover story on Skip Walter and then law firm Preston Gates & Ellis on how they were working with this new fangled concept called e-discovery.

Skip provides amazing detail on all this history on his own blog: Attenex Patterns History – The Critical First Year.

Attenex opened up new ideas for how legal professionals could attack a large collection of documents in different ways than a linear list. We affectionally called the Attenex interface the “petri dish” of e-discovery.

FTI acquired Ringtail in 2005, and Attenex in 2008, and then stumbled into the what I call the “dark years” while they tried to duct tape the two technologies together (exemplified by the awkward A2R Connector). But when I reviewed Ringtail 8.4, both technologies were married in the most lovely of ways.

Version 9 streamlines everything even more, and I was delighted to talk with Skip on his vision for the future of visual analytics as not just applied to “documents” but to the kinds of information that we use to communicate today such as text messaging, Slack channels, etc.

I was also interested to hear more about FTI’s Office 365 announcements.

DMS @ LTNY: Some interesting activity on the doc management front. iManage is working hard and now offering a cloud option. OpenText (ye olde Hummingbird) acquired Recommind. And Netdocuments had a fantastic session where CTO Alvin Tedjamulia gave a fantastically nerdy presentation on their security improvements (complete with Entropic Cryptography!).

Do You Serve a Little E-Discovery With My Office 365?

I was hoping to talk with Microsoft a little more at the show. Almost every single corporate client I work with today is either using Office 365 or Gsuite on the backend and in-house counsel want to know how they can utilize the e-discovery tools built into those platforms. And with Microsoft, we’ve all been anxious to see how they incorporate the well-respected Equivio tools into their Advanced eDiscovery tools.

The only problem was that every time I got to the booth I’d get interrupted by other potential corporate customers coming to ask questions. That lead to some great conversations, but I’ve got to find another avenue to get some really deep technical answers to e-discovery in Office 365.

Casepoint rebrands and I like it. I reviewed their software in 2015.

The E-Discovery Gobblers

Then there were the “e-discovery gobblers” that continue to exemplify the spate of mergers, acquisitions, and consolidation in the e-discovery marketplace.

FRONTEO (formerly UBIC) gobbled up Essential Discovery last November but has still been working through a re-branding after UBIC acquired TechLaw a couple of years ago.

Xact Data Discovery acquired C:DOX, Orange Legal Technologies, and most recently F1 Discovery over the last 3 years and they seemed poised for continued growth.

DTI & Epiq Systems announced last September that they were joining forces which created a powerhouse. DTI was one of the more active acquirers in the space with Daticon EED in 2010, Fios, Inc. in 2012, Applied Discovery in 2014, and Merrill Legal Solutions Group in 2015. Epiq had also made their own acquisitions but this joining of forces with DTI is worth watching.

LDiscovery probably did more to mess with the heads of us e-discovery industry nerds with their new re-branding smushed together logo with KrolLDiscovery. I remember Kroll’s reinventions through the years with Marsh & McLennan, and Altegrity, but now this is just a little weird. Not to mention that Ldiscovery has been on an absolute tear over the years with acquiring or merging with AlphaLit, RenewData, Turnstone Solutions, Credence Corporation and more.

(All mergers verified through Rob Robinson’s excellent post on ComplexDiscovery: “15 Years of eDiscovery – A Quick Merger, Acquisition, and Investment Update“)

There is nothing whatsoever wrong with any of these shifts in the marketplace. I see it as simply the e-discovery industry growing and evolving.

But one little tiny note I did catch is how each of these powerhouses are reacting to RelativityOne – which seemed to be an annoying, murmuring elephant in the room with a lot of e-discovery service providers. While folks from these larger service providers above were excited about the prospects of RelativityOne, most of the smaller, regional service providers were still fuming at the prospect of kCura undercutting their business models.

It remains to be seen exactly how all this will play out, but I found it intensely interesting as we continue to watch kCura’s evolution in the market.

The History and Future of Summation Software – “old Summation” vs. “new Summation”

There is still a LOT of confusion in the marketplace about the Summation namesake software. I continue to encounter many law firms using “old Summation” and I’m sure they’ve all been contacted by AccessData to upgrade … except that there’s no upgrade. The “new Summation” is different software, different licenses, and a different company.

Last month AccessData tweeted a link to Terry Mazura’s review of Summation 6.0 and they graciously let you download it from their website.

LJN Summation 6.0 review


I was happy to read Terry’s well-written review and I got the impression that Summation is addressing some of the issues that mid-size and smaller firms are facing in e-discovery challenges:

I have found that Summation gives me the ability and confidence to stand my ground against opposing counsel demands because I know that my processing engine (FTK, under Summation’s hood) is world-class, my database is sound, and Summation generates detailed audit logs I can use to demonstrate exactly how data was handled by users…This is crucial because it allows smaller law firms such as mine to compete vigorously with government and larger law firms that have deeper e-discovery support and resources.

My only disagreement is that today’s Summation (aka “new Summation”) is NOT always the best choice for mid-size and smaller law firms handling “routine cases with modest document volume” as Mr. Mazura suggests.

The “new Summation” requires much more of a financial stretch than what firms were used to with “old Summation.” Larger firms can justify the cost because they routinely handle LARGE document volumes, and once the platform is in place, certainly it can be used for smaller volume matters.

The History of Summation

The original Summation was developed in 1988 and became the standard for document review for many years.

Who remembers the file drawers?

Who remembers the file drawers?

Summation Legal Technologies was acquired by Wolters Kluwer in 2004 and folded into the CT Corporation, so the product was branded “CT Summation.”

I reviewed Summation iBlaze 3.0 in January 2010 (see “iBlaze 3.0 Goes Native”). Turns out this was the last version of the “old Summation.

Review-iBlaze 3.0 Goes Native

In June 2010, AccessData acquired Summation and plunged the software into its “dark years” as the company struggled to find how “document review” complimented their highly-esteemed FTK forensic tools and utilities.

In my 2010 review, I explained how Summation had evolved from managing lists of scanned paper documents into a platform coming to terms with electronic data:

CT Summation was born out of the idea that lawyers needed an electronic solution to manage, organize, and review the boxes of paper documents they collected in a litigation matter. There was no need in 1988 to process and host massive PST files. CT Summation was designed to be a simple database to hold scanned images of paper documents, providing litigation teams with a spreadsheet-like list where they could ‘code’ relevant objective and subjective information about the documents.

I also discussed some improvements that iBlaze 3.0 made to the transcript tools, which was one of the best features of the Summation platform.

iBlaze 3.0-screenshot-redaction

Some of you will remember that there was a specialized product called “Summation Enterprise” for larger, high-end matters that was the first Summation product to utilize a SQL database backend rather than the proprietary “Saturn” database utilized by Summation iBlaze.

Fast forward to February 2014 when I was fortunate to review Summation 5 Pro, one of the first major releases of the Summation platform since the AccessData acquisition.

Only this was NOT an upgrade to Summation … this was a COMPLETELY NEW PRODUCT.

Summation 5.0 Review

Here’s how I described it in my review:

Summation 5 is not a simple, long-awaited upgrade to a legacy Summation installation. The new Summation Pro and Express versions bear no resemblance to anything from the days of iBlaze. AccessData has kept some transcript management tools and the side panel is still called “Case Explorer,” but beyond that it’s Summation in name only.

Summation 5.0-review layout

I didn’t have room to editorialize in that review, but I understand and acknowledge what AccessData did by keeping the name of the product. It was a brilliant marketing move, but at the same time completely misleading and a bit disingenuous.

There are many mid-size and smaller law firms that don’t have a full-time litigation support crew, nor do they have IT consultants that are familiar with legal-specific software. This brilliant marketing move took advantage of the prior name-recognition, but the product was COMPLETELY different. AccessData should have christened the product with a new name and announced that Summation as we all knew it was dead.

The “old Summation” continues to limp along in many, many, many law firms today. Most of those firms are keeping it on life support for a handful of legacy matters that have a miniscule chance of being accessed again, but they’re not important enough to migrate to another system.

One excellent strategic move by AccessData with the “new Summation” was to use their FTK forensic technology as the data processing front-end before documents were loaded for document review. Prior to this, firms mostly used third-party tools such as LAW PreDiscovery (Lexis) or eScan-IT (Ipro).

The Future of Summation

Chris Dale at the eDisclosure Information Project recently hosted a great interview with AccessData CEO Keith James (fellow UD Law School grad!) who discusses “a number of changes and strategic decisions that [AccessData] made earlier on in 2015 to focus more on [customers].”

James had specific comments on Summation:

For standalone document review, we have Summation. People are very familiar with the brand name but some people may not realize that we have in the last several years completely retooled that product.

There are many things which are unique about Summation: we have made a lot of advances in the stability and speed of it, and we have advanced features such as visual analytics, technology-assisted review, and fact management, as well as transcript management.

These things are all part of the standard Summation, so from a value standpoint we’ve got a scalable, fast, reliable product that has all of the advanced features built in. It is something we are particularly proud of and have made a lot of progress with.

I was glad to read Mr. James’ comments and happy to hear that AccessData has re-focused their resources on customers and their needs. Summation 6.0 sounds like a great step forward in that direction.

(Ed. Unfortunately, ALM decided to utilize a paywall for any articles over 6 months old so my old reviews are not accessible unless you have a LexisNexis subscription. If you are interested in reading the old reviews, e-mail me at and I can send you a PDF of the reviews. Thank you!)

Brett Burney to Serve as Faculty for ABA Webinar on Federal Rule Amendments – June 8, 2016

Brett Burney will serve as faculty for a live ABA webinar covering the Amended Rules of Civil Procedure that went into effect on December 1, 2015.

Can You Follow the Rules? Understanding How the Federal Rule Amendments Impact E-Discovery” will take place at 12:00PM ET on Wednesday, June 8, 2016.

Discussion will cover the impact of the amendments over the last six months, as well as consideration of the amendments’ future goals.

Brett will be joined by Christine Chalstrom of Shephard Data Services in Minneapolis, MN.

For more information—or to register—click here to visit the ABA.

Columbus E-Discovery Roundtable Breakfast (Fri. Jan. 20) – “Designing an Effective E-Discovery Workflow”

Brett Burney will be participating in an E-Discovery Roundtable Breakfast on Friday, January 20, 2012 in Columbus, OH. Brett will be joining Geoff Wilcox of Black Letter Discovery, Marc Fulkert of Jones Day, and Joe Grespin of TechLaw Solutions. Details below:

Topic: “Designing an Effective E-Discovery Workflow”

Date: Friday, January 20, 2012

Time: 8:00am to 9:30am (Networking Breakfast at 8:00am; Roundtable Discussion begins at 8:30am)

Location: Black Letter Discovery
10 W. Broad St.
Suite 575
Columbus, OH 43215

RSVP: Geoff Wilcox, Executive Vice President, Black Letter Discovery

Excellent Coverage of LegalTech West Coast 2011 from E-Discovery Insights Blog

LegalTech West Coast 2011 Brett Burney Speaks

I was honored to be invited to speak at LegalTech West Coast last month (May 17 & 18), but I didn’t get a chance to post on my experiences.
Fortunately, my friend Perry Segal was there and did a fantastic job of covering the show on Day 1 and Day 2.

I had not met Perry before the show, but he had graciously filled in for me last year when I had to miss a speaking engagement in the Los Angeles area. Since Perry lives close to the area, I reached out to him at the last minute and he was able to fill in. So I was elated to meet him in person and my only regret is that we didn’t have time to sit and talk (you’ll see from his Day 2 post that he was quite busy).

I had a great time at LegalTech West Coast. It’s a much smaller show than it’s New York sibling, but it’s always great to catch up with friends and network with folks in the industry.

Fios Webinar: State E-Discovery: An Important Year for Changes

Fios State E-Discovery RulesTom Allman will be giving his fourth annual Fios webcast on the state of the states’ adoption of e-discovery rules on Thursday, December 9, 2010.

I regard Tom as one of the most informed folks on state e-discovery rules, and regularly provides updates on the topic such as this one from September 9, 2010. I depended heavily on Tom’s research when I wrote my article “Mining E-Discovery Stateside” for

As significant as the amendments were to the Federal Rules of Civil Procedure, I believe it’s even more important at the state level, although many folks overlook them. In fact, I’ve had litigators tell me they don’t have to worry about that “e-discovery stuff” because their case isn’t in federal court, even thought they’re sitting in a state that has adopted the FRCP amendments almost word-for-word.

The two best, updated resources I usually point folks to for state e-discovery rules is:

I highly recommend registering for Tom’s Fios webinar on December 9, 2010, and make it a point to learn more about how e-discovery rules are being adopted by the states.

State Rules of Civil Procedure for e-Discovery

Webinar: eDiscovery Project Management

I’m thrilled to be presenting a webinar hosted by Encore Discovery Solutions tomorrow (Friday, June 11, 2010) entitled “eDiscovery Project Management.”

The topic is a popular one these days. Many legal professionals “manage” projects everyday, but the intricacies of e-discovery require that we adopt traits found in the technical discipine of project management.

I’ve written about e-discovery project management for TechnoLawyer and that article is available here.

I also recorded a podcast on with Karl Schieneman entitled Can You Project Manage Electronic Discovery?

You can register for the eDiscovery Project Management webinar at Encore Discovery’s website. Even if you can’t attend in person tomorrow, still sign up as Encore graciously provides an archive of recorded webinars that can be accessed later.

Update: Archived recording of the Webinar is available from Encore Discovery Solutions here.

Viewing a Lawyer’s Prize Through IT Eyes

eye on laptop screen.jpg

An excellent IT perspective on e-discovery today from Ira Winkler entitled “Arrogant lawyers: the greatest threat to your organization.” Winkler is a well-respected writer on corporate information security.

I’ve witnessed the same scenario in corporate environments concerning e-discovery that Winkler describes in the first few paragraphs such as “information security staff traditionally look at their role in the e-discoery process as ensuring the integrity of the data…” and “many people are intimidated by their organization’s lawyers – they just want to follow orders and gather the data.”

I even appreciate Winkler’s accounts of a couple of projects he’s been involved in and see the same blustering and pomposity in many litigation matters as described by Winkler.

But I don’t quite agree with Winkler’s assertions 1) that large corporations have “unlimited financial resources” to throw at litigation matters or 2) the perception of lawyers as arrogant in the context of dealing with IT professionals.

First, no corporation that I’ve worked with in the last few years involved in e-discovery has unlimited financial resources. True the legal department may enjoy a little more latitude in spending than other departments because of the pressures of corporate litigation, but unfortunately, a lot of that money is NOT spent on thorough, carefully considered e-discovery tools or scrutinized workflows.

Second, what Winkler asserts as the “arrogance” of lawyers in his article is what I would describe as the “technical ignorance” of lawyers. Winkler states that the question “do they even know what they are disclosing?” is the most critical question that information security professionals should be asking their lawyers because “nobody really knows what they are releasing.”

Winkler comments on how he has witnessed companies “try to image the data so that you cannot search the data with text based tools. There seems to be an attitude that if we can’t find the data, they can’t either.” And while I agree with Winkler that this is still unfortunately the attitude of many lawyers today, it’s not because the lawyers are arrogant, it’s because lawyers freely admit that they have no idea how an e-mail archiving system works (or even if the company has one), don’t know how their company’s network share drives are set up, have no clue about the company’s backup procedures, and couldn’t tell you what e-mail system they’re using.

Winkler also neglected to mention one other important player in this game – the outside counsel from a private law firm. I know very few in-house lawyers at corporations that directly handle their litigation matters – that’s usually a job delegated to more experienced litigators from outside law firms. The arrogance factor may be a little higher for those lawyers because of the environment they work in every day. In-house lawyers work for the company. Outside lawyers have to impress their entire portfolio of clients.

Now for the other perspective: Craig Ball offers some excellent practical advice for lawyers in dealing with IT professionals in his article “To Have and To Hold” addressing litigation holds.

My favorite quote from Craig’s article:

“Consider IT and business units, then tailor your forms to their functions. What’s the point directing a salesperson to preserve backup tapes? That’s an IT function. Why ask IT to preserve material about a certain subject or deal? IT doesn’t deal with content. Couch preservation directives in the terms and roles each recipient understands.”

The key phrase there is “IT doesn’t deal with content.”

Now obviously, “content” is practically what IT deals with at every level, seeing as they manage “information.” But IT doesn’t fret about e-mail messages or documents from the standpoint of what they contain – they are much more concerned about how and where the data is stored (e.g. e-mail sub-folders & archives, network shares, what directories can they exclude out of a backup, etc.) Legal cares about the content of data first and then concerns themselves with where it can be located.

One last counter-point I would offer to Mr. Winkler – I completely agree that lawyers must become better educated about information systems at a company and they must understand the risks associated with “releaseing” information, but it is also imperative that IT professionals understand the full environment of the data they lord over.

For example, in just about every corporation that I’ve worked with involving e-discovery, the IT professionals have an extensive and thorough handle on e-mail. But when it comes to managing individual documents and files (Word, PDF, Excel, PPT, etc.) I have yet to find a secure, relevant and professional structure around the management of those documents. Corporations rarely use any kind of document management system or if they do, it’s poorly implemented, and often circumvented to the point of uselessness. That certainly doesn’t help the process of e-discovery.