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An Expert Panel Discussion
Examining E-Discovery in Detail and Overview

This article is part of the Best Practices White Paper E-Discovery [February 2009]
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KMWorld magazine recently hosted a roundtable discussion that focused on e-discovery. Led by KMWorld senior writer Judith Lamont, the roundtable included David Cooper, principal with Marin IT, a network integrator and consulting firm; Dr. Johannes Scholtes, CEO of ZyLAB; and Barry Murphy, principal at Forrester Research.

We reproduce the conversation here because of its uniquely comprehensive view of e-discovery, from the nitty-gritty details to the overall impact deploying e-discovery technology can have on an organization.

Lamont: Barry, can you start us off with a brief definition of e-discovery and explain why it is such a hot issue right now?

Murphy: The best way to think of e-discovery is the process of collecting, preserving, reviewing and producing electronically stored information in response to a regulatory or legal investigation. It’s gained a lot of intensity since the amendments to the Federal Rules of Civil Procedure took effect. Now, the courts are essentially saying that organizations need to treat all types of information—including email, documents and structured data—as corporate records. Companies need to know where it all is and get to it in a cost-effective way. The heat is on for organizations to start managing their information proactively, but they are just not prepared to do this.

Lamont: Why are organizations so unprepared for e-discovery?

Murphy: First, you’ve got huge volumes of information, and second, most of it is in unmanaged repositories. Only about 5% of information is in managed repositories where the users proactively place it, tag it with metadata and put it into some kind of classification or taxonomy. The rest of it is "out there" in email, network file servers, desktops and removable media. So the fact that organizations have let information get away from them has created a dire situation where they’re simply not ready, and they’re not going to be ready, in the next year or two, to get their arms around this.

Lamont: What do they need to do in order to be more prepared?

Murphy: Realistically, organizations are going to need a three- to five-year strategy, and they also need to understand that there is not a silver bullet to fix the situation. They need to develop processes and a supporting technology system. Organizations on the receiving side of this information—whether an agency, private company or the litigation support companies working with them—face similar problems in that they need to organize, search, review and understand the materials. Usually the volume of information is very large, and considerable scrutiny is required to identify key details of interest.

Lamont: David, your organization is involved in e-discovery and uses ZyLAB’s eDiscovery Suite. What is it that you do for your clients?

Cooper: Several years ago, I was approached to put together a system to support a major antitrust litigation case focused on allegations of price fixing. Our client is the plaintiff, and we are receiving large volumes of information—millions of pages—from the defendant. About 54 law firms across the United States are involved in the case. Our client needed a centrally hosted system that allowed everyone to search, tag, retrieve and review the data. With ZyLAB we get data in many different formats, including Word documents, PDF files and paper. And we use ZyLAB’s Web interface, so we don’t have to maintain client software for the users.

Lamont: Jan, what prompted ZyLAB to become involved in e-discovery?

Scholtes: We’ve always been very much involved in what’s now called e-discovery or e-disclosure. Our first customers, back in 1983, were actually lawyers. The initial development of the protocols in our products was heavily funded by the FBI and several law firms. These organizations had a lot of data and a lot of different file formats, and needed a way to organize and search their information. Over the years, we have added records management functionality to do automatic retention and to deploy filing plans, but the searching and gathering of unstructured information, whether it’s paper, email or electronic files from hard disks, is where we have our roots. Once everything is searchable, it’s so much easier to organize the data and then prepare it for e-discovery and legal production. So we cover both sides of e-discovery: the organizations that are responding to requests, and those that need to ingest, organize and interpret the "discovered" content they receive.

Lamont: What is the typical scenario for ZyLAB?

Scholtes: A lot of our projects are typically what Barry described, where an organization is unprepared and facing a court order, or there is an internal investigation. Suddenly they have several hundred gigabytes of data that must be analyzed and searched, and shared with other parties. We have helped a lot of organizations, both corporations and public organizations, handle these very complex cases. And as David described, we also help process discovery information that is received by an organization, which often has to happen in a short time span.

Lamont: If an organization has had to scramble to produce information, what happens after the crisis is over?

Scholtes: If a company or organization has been through a number of these incidents, then typically the departments start wanting a long-term solution. It might be the corporate legal department or the director of litigation support, or if you’re talking about the SEC or the FBI, then it’s the investigators. They start using ZyLAB technology as a standard tool for investigation and analysis, gathering of information, production, disclosure and so forth.

Lamont: Barry, what do you think a company should do to get on track?

Murphy: I recommend starting with the worst pain point. If it’s email, investigate the archiving tools. Or if it’s the file system, look at indexing tools to help quickly find and produce materials for e-discovery. Later, organizations can get out in front of the curve with a longer-term strategy, and also get their records management to include types of content beyond their repository of official records. Of course, having the right policies and procedures in place is important. To do this, companies need to formalize the relationship between IT and legal, so that the policies set up for records management are ones that the lawyers feel comfortable arguing in court.

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