In reading the piece, Carolyn Elefant on the Legal Blog Watch was reminded of John Henry, the steel-drivin’ man who beat a steam-powered machine in hammering railroad spikes, but died in the process.

Ron Friedmann believes that the article “oversimplifies the issue” of “lawyers trying to protect their billable hours, … but does alert corporate managers (think CFOs and CEOs) … to more cost-effective ways to approach litigation.” Like Ron, I’m just glad to see coverage of the topic in the WSJ.

The WSJ piece reports on how HP, Xerox, EMC, and IBM have jumped into the market of providing automated solutions for collecting, preserving and producing electronically stored information. The fact that these companies have taken a bite of the e-discovery industry tells you that they see something important and profitable.

Here’s a great example from the story:

“One company saving some cash is Comcast Corp. When outside lawyers working for the cable company recently requested thousands of archived documents for a court case, Genny Garrett, who is in charge of managing Comcast’s records, found them by doing a search from her desktop computer. The lawyers ‘were surprised,’ she says, that ‘they didn’t have to wander around a warehouse’ looking for records, a task that once generated big legal fees.

Comcast uses software from Tower Software, which was recently acquired by HP. Comcast is obviously very happy with their purchase:

“[The software] archives and classifies employee e-mails and other documents as they are created. The system also creates inventories of paper records, Ms. Garrett says, so she can locate and retrieve documents by using computer searches. She says the software has saved thousands of attorney hours over the past few years because Comcast gets about 400 legal-search requests annually, many related to claims that arise when technicians visit customers’ homes.”

I do take issue with a comment in the piece from Michael Lynch, chief executive of British software company Autonomy Corp., which last year acquired e-discovery company Zantaz for $375 million:

“Lawsuits increasingly rely on electronic documents being produced early on, feeding demand for tools that help archive and retrieve those records, a process known as e-discovery work. Much of that work requires little brainpower or legal training, says Michael Lynch.”

Perhaps Mr. Lynch is simply referring to the “hit this button” simplicity that some of these systems theoretically provide once they are properly set up and completely integrated into the enterprise-wide information systems of a company. Pressing a button does not require a lot of “brainpower or legal training.”

But implementing systems like what Zantaz offers requires an incredible level of sophistication and experience. Otherwise, the project will fail at worst, or at best bleed a lot of money. I would guess that Mr. Lynch would agree and offer the experience of the professionals at Autonomy/Zantaz to ensure a smooth rollout.

Otherwise, you might have this scenario:

Robert Brownstone, [a partner with Fenwick & West], tells of one client who declined to have attorneys oversee an email archives search, thinking internal IT staff could do a cheaper automated search. The IT workers disposed of files that, legally, had to be retained, he says. They were recovered, but only after the company paid Fenwick lawyers extra to fix the problem

I have seen this first hand – a law firm will offer to assist their big corporate clients in identifying and collecting relevant ESI for a litigation matter, only to have the client decline the help. In-house counsel are easily persuaded by internal IT resources that believe they can accomplish the job and save immensely on the associated costs.

No one can blame in-house lawyers for wanting to save on external legal expenses. And I believe that’s why we are seeing so many more corporations like Comcast taking a bigger role in managing their internal data with an eye towards being better prepared for inevitable litigation matters.

So to be fair to both sides, automation in discovery is coming and coming strong – there is no denying that. But it is immeasurably important to have the crucial legal analysis involved as well. True a machine may be able to drive railroad spikes quicker, easier, and more efficient than a man with a hammer, but someone still has to flip on the switch at the right place and at the right time.

Link to WSJ story.

UPDATE Monday, Aug. 25, 2008: Michael Lynch’s comment (“[e-discovery] is work that requires little brainpower or legal training”) got under Ralph Losey’s collar too:

“This comment demonstrates a real antipathy between Law and IT. It also illustrates a lack of understanding or appreciation as to what each side [law and IT] really does. … For most of my career, the IT guy (and yes, it always used to be a guy) received about as much respect in a typical law firm as the copy machine repair man – not very much. Even when they were later hired as full time law firm employees, techs were (and in some firms still are) considered rather dimmed witted necessary evils, with lower status than secretaries, and nowhere near the status of a paralegal.

…This antipathy leads to widespread misunderstandings and miscommunications between lawyers and computer technicians. This is just mildly annoying for most lawyers and techs, but for specialists in e-discovery it is a disaster. That is because e-discovery is a blend of the two professions. It can only work properly when lawyers and techs work together and cooperate.”

Ralph then provides an outstanding example of the communication breakdown that regularly happens between law and IT by eloquently analyzing Kevin Keithley v. The Home Store 2008 U.S. District LEXIS 61741 (August 12, 2008) (.doc format, graciously hosted on Ralph’s blog).

A few more choice quotes from Ralph (the whole entry is lengthy, but WELL worth a read-thru):

“…the practice of law is an art, not a science, and the human element can never be replaced by technology.

Information Technology and the Law are both honorable occupations. We must learn to work together to meet the challenges of e-discovery. This is a plea for mutual respect and cooperation.”

Link to Ralph’s post entitled Tech v. Law – a Plea for Mutual Respect.

I don’t totally agree with this quote by author Mario Apicella, but I can certainly appreciate his perspective:

“… hosted services that offer remote access for e-discovery and similar activies are a worthwhile alternative to building a layer of compliance applications in-house.”

True it may be easier (and more efficient) for a company to outsource some of their storage/compliance responsibilities, but it is still imperative that the IT professionals and company attorneys discuss the issues revolving around the storage and preservation of electronic records (i.e. e-mails, e-docs, etc.).

Even though a hosted service may adequately handle the logistics of preserving e-mail, the amended rules still impose a quasi-duty upon lawyers to be familiar enough with their clients’ information systems so they can intelligently discuss the exchange of electronic data with the opposing party.

Link to article.

The four vendors I talked to for the article were AXS-One, InBoxer, Clearwell Systems, and Estorian. Each vendor enjoys a certain sweet spot.

I wanted to talk to AXS-One after I read the great story on ComputerWorld.com about how KeyBank adopted the AXS-One Compliance Platform to help manage the laborious process of collecting and producing e-mails from their 300TB e-mail archive. The story provides a rare insight into how major corporations are dealing with the stress of complying with e-discovery requests.

I am very impressed with InBoxer and have blogged about the company in the past. The big seller to me with InBoxer is that it’s so easy to deploy – you either pop in a rack mounted server or install the software in a virtual appliance and it’s ready to go within an hour, or even a few minutes. In-house counsel search and analyze employee e-mail through an online interface (you can visit www.enronemail.com to test out InBoxer for yourself).

I’ve been following Clearwell for a while now, and I believe they have one of the most intuitive interfaces of the group. They made it very clear to me that they are not an e-mail archiving system, but that they work complementary to systems you may already have set up from Symantec or EMC. A Clearwell system can also get up and running very fast, and provides such a comfortable interface that I can see where some users may not even need training.

And lastly Estorian offers an interesting alternative to the slick-ness of InBoxer and Clearwell. Estorian’s LookingGlass software may not look as pretty, but I found that it provides an extensive array of options for searching, monitoring and saving potentially risky e-mail messages. The company views LookingGlass as more of a compliance tool because users can easily set up searches to automatically and continuously monitor employee e-mail for risky keywords.

I foresee in the near future that every corporation will have some sort of e-mail analysis tool constantly monitoring employee e-mail. And why not? In this country, the company owns the e-mail and has the right to read every message sent by an employee through the company-owned servers. Companies that purchase tools such as the ones mentioned above will enjoy a) the comfort of knowing that something is policing the e-mail servers for naughtiness, and b) the ability to quickly search and secure e-mail messages that are relevant to the latest litigation matter that flys across their desk.

Link to my article.

The article starts off with a good quote:

“For many employees, using email is really only about two things: sending and receiving. But for enterprises as a whole, email is their lifeblood.”

I like that quote because it’s a good reminder that no matter how much the e-discovery industry rants and raves about the need to archive this and preserve that, the majority of folks that use e-mail just see it as a convenient communication medium, and nothing more.

Dean Richardson of ArcMail Technology is quoted:

[...many companies] “opt for email archiving, not for particular compliance reasons but because their users want unlimited email storage without mailbox restrictions.”

Richardson also declares that the trend is bending towards “keeping everything” asking “Do you want to be the only one in court without a copy of your own email?” That’s a valid question since a company may feel safe if they appropriately deleted a sent e-mail from their own servers, but it will turn up in discovery because the recipient of that e-mail saved it on their own server. You don’t want trial to be the first time you see that e-mail message – an e-mail archiving system (based on a well thought-out policy) would have helped you find that message during your own review.

Link to story

Two quotes:

“People assume email is on the backup tape. The backup tape is not an archive option, it’s a recovery option.”

“…some firms print emails and then rescan them into an electronic document management system to save filing cabinet space, an unnecessary process if proper email archiving is in place.”

According to the InfoWorld review the appliance will work with both Exchange and IBM Lotus Domino and scores each e-mail message on a scale of 1 to 100 for inappropriate content, privacy violations, and other metrics. Obviously, InBoxer was initially aimed at the risk management sector, but it can just as obviously be used for e-discovery issues.

The largest kudos for the company goes for their test site located at www.EnronEmail.com. You sign up for a free account and have the ability to use their software through your Web browser (which is how you would use it anyway). The site cautions you on the offensive language you’ll find inside the Enron e-mails, but this is a fantastic way for potential customers to test run the appliance.

Why don’t more vendors do this? I congratulate InBoxer for having enough confidence in their appliance to allow a test run like this. And the system is a joy to use.

Where public companies have been dealing with this technology to satisfy SEC regulations, the rampant explosion of electronic discovery has further fueled the indistry. The press release further reports that the IDC study pegged Symantec/KVS to lead the market in 2006 followed by Zantaz Inc. The study covered most of the big boys in the industry including AXS-One, EMC, IBM, and Postini.

The story reports that Intel has already turned over 17 million pages of documents to AMD, and expects to turn over tens of millions more. Intel is in hot water since they’ve admitted they may not have certain relevant e-mails any longer.

My favorite quote:

“AMD will press the court to impose changes on Intel’s existing information preservation procedures. Kicking its opponent when it’s down with legally-authorised (sic) boots? Oh, yes please.”