The State of E-Discovery by George Socha

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Listen to the well known E-Discovery Consultant George Socha and co-author of the influential Socha-Gelbmann E-Discovery Survey discuss what their survey is indicating and where George thinks the industry is heading. This is a great opportunity to learn from someone who has a good perspective on the industry.  For 5 years, George has been co-author of the leading survey on Electronic Discovery and Market, the Socha-Gelbmann Electronic Discovery Survey. And in 2005, he launched the Electronic Discovery Reference Model Project, EDRM, which in 2006 offered the EDRM metrics and XML projects, and in 2007 the EDRM code of conduct, Evergreen Metrics 2 and XML 2 projects.

[DDET Click Here to Read the Transcript]Karl Schieneman: Hello everyone. This is Karl Schieneman, Director of Legal Analytics and Review with Jurinnov, and welcome to another edition of the ESI Bytes where we offer information from national speakers on Electronic Discovery at a price everyone can afford, which is free and available when they’re interested in listening to it, which is basically when you click and download it.

Today, I’m thrilled to say that we have a great show on the state of E-Discovery with George Socha. He’s from Minneapolis, and he’s joining us on the show to talk about the lays, the land in E-Discovery. George has been a litigator for 16 years. He’s the President of Socha Consulting LLC which offers services as an Electronic Discovery expert witness, special master and adviser to corporations and law firms that his client’s in, legal vertical market software and service providers in the areas of E-Discovery and automated litigation support. He’s perhaps best known for a couple of other things he does as well. For 5 years, George has been co-author of the leading survey on Electronic Discovery and Market, the Socha-Gelbmann Electronic Discovery Survey. And in 2005, he launched the Electronic Discovery Reference Model Project, EDRM, which in 2006 offered the EDRM metrics and XML projects, and in 2007 the EDRM code of conduct, Evergreen Metrics 2 and XML 2 projects. Anyone in E-Discovery who has seen that nice little scheme or graphic from how a project starts to how it ends, that’s EDRM. So George, great to have you on the show.

George Socha: Well, thank you Karl.

Karl Schieneman: And you know, what I would like to ask people at the beginning of the show is that how did they get started in E-Discovery?

George Socha: Quite by accident. I had been at the odd balls students who brought a computer to law school, the very odd ball associate who showed up with one when I started at my first firm in 1987. A string of senior associates and partners who came through my office saying, “Lose the computer. Real attorneys don’t type.” I refused to lose the computer, which gave me the questionable duties of oversight responsibility for IT operations in the first term I was at as well as a major role at the litigation support arena. And at the early ‘90s or about 90 or so, our IT director was headed away by another firm in town. I was told to take 2 to 3 hours a week and oversee the information services operations for 460 people spread across 4 offices.

That was pretty much full time for me for 18 months—a baptism by fire—but coming off of that, as I returned to the full time practice of law, the firm I was at started to get the first of the E-Discovery projects it had to contend with and I was told, “you take care of this.” That’s how I got started, not at all because I had intended to become involved in this area.

Karl Schieneman: Oh, that’s right. At one point, I want to do my own little survey since you’ve had so many great people on this and track out where people got started, but it’s always interesting to hear. Well, you know, you’re knowledgeable in this area as anyone in the country given the survey and all the data you’ve accumulated, so let’s jump right in there. What’s happening to E-Discovery service providers in 2009?

George Socha: Everything. It’s a very mixed year 2009 as was 2008. Triggered, I think, in part by the changes in the economic circumstances, but really a set of changes that were well underway already. And some of what we have seen happened is that the hardest hits of the provider—it’s because some providers have been very hard to hit—tend to have been the ones who are larger, more well-established at the time, but who, as they became larger and became established, did so impart by purchasing very expensive systems or developing very expensive systems that were, if you will hard coded to a specific process, and that process involved pushing a lot of data through processing engines on to a review platform where large portions of that data has been reviewed by contract attorneys, law firm associates, and the like.

With the intense pressure starting in 2008 and continuing in 2009—it really started before 2008—to reduce the overall cost of Electronic Discovery. The review area came under increasing scrutiny. That cost a direct challenge to this particular business plan. So for those organizations that have been large with a lot of money sunken to expensive infrastructure and a fairly rigid structure, that depended upon a lot of processing and review in order to be viable. They had had a hard time of it. But as much as they have had a hard time of it, many other providers we find have been busier than ever. Some are busier than ever only artificially so they’d let go some people and then things picked up, and then it became very hard; it has become very hard for them to try to keep up with what’s going on. Others, they tend to be newer or smaller, or newer and smaller providers once they have been able to buy less expensive infrastructure, ones who have been able to put in place much more flexible systems, have been able as well to adapt to the changes in market demand where there’s a much greater focus on trying to figure out what data really matters. Earlier in the process, they’re better able to address that, and they’re finding at least some of them that there is business aplenty still for them. But on the whole, it’s been a very tumultuous market in this area as in many other areas. There are more people out of work than ever before and a huge degree of uncertainty about the viability of any provider just because there’s uncertainty, not necessarily, because the provider itself isn’t that straight.

Karl Schieneman: Okay, and if you get even more granular within this phase of technology companies that are out there, what trends do you see happening within the technology companies? Any new technology or anything at all that you’re excited about?

George Socha: A couple of things are going on. One is that part of the way that those companies that have spent the most money on Electronic Discovery have been attempting to reduce their bills is to take greater control of the process themselves. And as they do that, they tend to buy more software that either they’re going to operate or others are going to operate at their direction hoping that that will turn into a lower overall cost. So as they divert funds to that software, that’s a lot more money for the software companies than they’ve had in the past, but it also becomes a lot less money for the services providers. Similarly, those newer, smaller, more flexible providers are increasingly buying the software from others as opposed to of necessity building the software themselves. So for at least some of the software providers out there, they’ve seen substantial growth in the volume of product that they have been able to sell.

Now that’s not uniform across all type of software providers. The ones who seem to be best place for the moment are the ones that tend to focus earlier on in the EDRM process, if you take a look at the diagram, so they are ones who’s focused on how to help corporations get their electronic house in order in the first place. Ones who will help corporations more quickly and more efficiently, find out what data they have once they need to deal with a specific problem, preserve and/or collect that data, and do some minimal amount of earlier processing so that either the folks in the corporation or those working on their behalf can get a much better idea much earlier on about what really is in there, so that the corporations that are delivering those types of capabilities are the ones who are best position to list for the moment.

Karl Schieneman: Okay, well let’s look at the law firm a little bit here. And, you know, one of the trends I’ve noticed is that law firms, someone seem to be attempting to offer a more E-Discovery services which oftentimes involves standardizing on some E-Discovery platform. Did you see that happening first of all and do you think that makes sense given the fact that tools and process is to attack ESI manager aren’t really mature yet; you know, maybe buying or standardizing ourselves into not solving the problem.

George Socha: I think there’s not a blanket answer for all law firms in those contexts. There is a certain range of tasks that need to be accomplished to effectively carry out an Electronic Discovery process. And they vary, of course, from project to project, from organization to organization. There is the question as well not only what tasks need to be performed, but who ought to be performing those tasks. And in very broad terms, the “who” might be people within a corporation, someone within the corporate legal department or corporate IT department, for example. They could be people on the other end of the spectrum that services providers, and they could be people at law firms. There is no inherent advantage for anyone of those three organizational types over the others. It depends upon the circumstances. But with law firms in particular, what they need to be aware of, is that they should take a look at the past and draw some lessons from what has happened over the past 20 to 30 years in the larger arena of automated litigation support. First, with efforts to bring coding in-house to law firms, then with efforts to bring scanning in-house to law firms, and what we saw in each of those instances was that most firms, that tried to do this, failed. And they failed not because law firms cannot do this, but they failed because the firms as firms were not willing to make the necessary investments in infrastructure, hardware, software, the like, in training, in salaries, and in on-going support for these people. They tend to not to treat these as real businesses within the law firms, but sort of things that were tacked on as a way of drawing in some additional clients or holding the clients a little longer, and they attempted to try to essentially give away these activities for free.

Karl Schieneman: Right.

George Socha: As a result, what they delivered wasn’t consistent, wasn’t of a consistently high quality. There’s no one to, whose feet you are going to hold for the fire of your own when things go wrong. That doesn’t work very well. Some law firms succeeded in both those tasks. I fully expect some law firms to become very effective at delivering certain aspects of the Electronic Discovery service that otherwise can be obtained from providers out there. There are, for example, some firms out there already who have essentially captive review shops of wholly owned subsidiary, for example, that focuses on review and offers reviewers at a much lower price than would be the case of their associates who are being used, and offers reviewers who are appropriately managed using the appropriate equipment and so on, but that is really difficult for most law firms to take on and then carry off successfully.

Karl Schieneman: Given the wide spectrum of talent and resources, you know that law firms have at their disposal in this technical field. What advice would you have for law firms evaluating this area to figure out what they should be doing?

George Socha: I think first and foremost, the law firms have to ask themselves whether they are serious about wanting to be in this business as a business. And if they’re not, then they should focus on being lawyers, being managers and essentially being general contractors in this process, so that they help gather together different resources and manage the use of those resources. If however they are serious about getting into this as a business, they should, as in so many other instances, approach this with baby steps. Make your mistakes on a small scale rather than a large one. Learn from those and expand from there. Don’t try to cover the full landscape all at once, but pick one particular area that you want to start in. Perhaps, its review and a different review model than you can offer before. Perhaps it’s advising clients on better ways to get their electronic house in order.

Next, make sure that they’ve got the appropriate talent to pull this off. So, this is not an area where you can hold the wall effectively over people’s eyes because if you can’t do it, it becomes fairly obvious and not too much time that you really didn’t know what you were doing and in some aspects of this, there’s no going back to fix it the second time if you fail the first time. So get the right people and with the right people, of course, you need effective tools and solid embedded processes.

Karl Schieneman: We’re talking about the spectrum of capability across firms. It’s probably as good a place as any to talk about what, you know, what we’re talking about at the beginning of this show about maybe opting out of E-Discovery that there are, you know, numerous examples of people starting law suits and just asking for paper and expecting paper and ignoring ESI, you know, perhaps most litigation is still done the traditional way. What’s your take on that?

George Socha: One way of looking at this is a very rough cut at the numbers. In very general terms, each year in the federal courts in this country, about half a million new lawsuits are filed. And then in the various state courts, somewhere between 10 million and 11 million new lawsuits are filed. So let’s forget about the federal lawsuits for a moment, and let’s say that only a tenth of the new lawsuits filed actually seriously involved some level or could involve some level of Electronic Discovery. So we’re down to a million. There are somewhere in the range of 600 plus organizations that currently offer or prefer to offer some form of Electronic Discovery service and divide a million by 600, and whatever the number is, it’s a lot of projects per provider each year. Many of the providers we’ve talked with over the years handle well under a hundred projects each year, so the numbers don’t match. There is absolutely no way that there is a significant amount of Electronic Discovery activity going on in the vast majority of lawsuits filed each year. The resources aren’t there to support that yet. So I think it’s not so much a question of opting out, but rather that we are still, in many ways in early days with Electronic Discovery, the vast majority of attorneys practicing litigation attorneys in this country have not actually opted in yet.

Karl Schieneman: That’s a good point and as always, there’s some good metrics in there. That’s important, George, to validate, right?

George Socha: Numbers matter.

Karl Schieneman: Okay. Yeah, one another thing people noticed recently when looking at your survey is, if you stop providing rankings on the top software offerings, and it’s one of the reasons you stop doing that because there’s still work to be done. Why don’t you tell me a little bit about that decision about, you know, what you see some of the risks are in ranking?

George Socha: Well, we had started offering ranking is when we first did the survey when it was something that had far less not arrived here. It wasn’t something – that much before paying attention to, and we offered the rankings as a general guide in terms of which providers to consider using at a time when there were far few providers, and in many ways it was a much simpler market place. What we’ve seen happen over time is that the number of providers has increased considerably. The range of what any given provider offers in terms of services or software changes often dramatically just in the course of a single year. So that if we gather data about a provider in January, February, March, by the time we get to June, July, August, that data is often, to a certain extent, out of date. And by the time we get to the, you know, October, November, December, it’s almost always out of date.

So one, there are too many providers, and they change too rapidly. Second, the needs of the marketplace have been changing rapidly. When you take too many providers, too many changes on their end, and then a rapidly changing marketplace, it becomes very difficult to try to figure out how to evaluate those providers with some sort of static ranking that people can look to and safely and appropriately rely upon. But that really bags the larger question which is: Can you safely and appropriately rely on rankings like this?

We spent the last year, year and a half scratching our heads trying to figure out whether we could deliver a ranking we were comfortable with. The thing that caused us to do that is that we saw, over the year, a year and a half before that, a very disturbing trend. We saw a growing number of decision makers in corporate legal departments, corporate IT departments, other areas within corporations, decision makers in law firms, decision makers at investor organizations, private equity groups, and the like, metro capital groups, where what they were doing was to say, “We want to do something within Electronic Discovery provider of some sort, you know, we need someone to some work for us or we might want to invest some money.” They would only look at people who showed up and say, the top five rankings in our list. And they would do that, often without regard, to whether what those people offered had any connection to what their real needs were. But that was on the consumer side. On the investor side, they tended to say, “Well, unless it’s a company that shows up in the rankings, we’re not adventurers to investing money, which seems a little odd to me because it shouldn’t be the other way around?

Karl Schieneman: Yeah, we’re not in mature industry.

George Socha: We’re not in the mature industry, not at all. So we came at the conclusion that there was so widespread a pattern of abuse of the rankings we were putting out that we could no longer, in good faith, publish rankings because we could count on them being abused. We could not count on them being used appropriately. We tried to figure out a replacement ranking system, a static ranking system, and we finally gave up. We reached the conclusion that whether it’s us or whether it’s anyone else given the complexity of this market place, given the immaturity of this marketplace, given the rapid changes of the processes, and the needs in this market place that there is no place right now for static rankings.

Karl Schieneman: You gave up a great opportunity. You could have been like the Russian economic, you know, adviser in the 1980’s saying, “This is what production will be this year.”

George Socha: Sometimes it’s better to just walk away.

Karl Schieneman: If that economic model doesn’t work very well, you got to let the market place evolve especially.

George Socha: Yeah, I did not feel comfortable continuing all of the rankings that felt like the wrong thing to do, and I just do not want to be in that situation.

Karl Schieneman: Well that’s, I think, a very practical and a very honest-to-the-profession type of a response, so you know, kudos for that decision. What do you see happening? You know, we talked a little bit about corporation focusing at the top end of the EDRM model, but what do you see happening with corporations and their battles that contain preserve, process, and deal with review charges?

George Socha: There are several things going on, and first of all the corporations are not monolithic. There are those corporations that have been spending large amounts of money on Electronic Discovery, and how they are approaching this issue is very different from the path taken by those corporations who are just now, for the first time, having to address Electronic Discovery concerns. Most corporations fall into that second grouping, not the first. But for the ones who have spent the most money—the ones who have supported this industry—that has reached an end. They cannot continue to pay the bills they’ve been paying in the past. It’s not viable for a host of reasons.

So they are working hard to reduce the amount of money they spend while at the same time still meeting, if they can, their Electronic Discovery obligations. That has meant several things. One, for those organizations that are larger, that have a regular flow of litigation or similar events that have a lot of money moving around as a result of this, and then some risk or a lot of risk to the organization, and who otherwise have a culture of doing things internally. They are working, at least some of them, on bringing more and more of the Electronic Discovery process in-house. So they’re trying to do more and more about themselves. That’s good news for the software providers, not such great news for the service providers especially the ones who have relied on large processing and large review projects. It’s also not such good news for the law firms who have relied upon large review projects, so one thing is that the corporations are looking at bringing more in-house.

As they do that, however, what they really want is to be able to go out and buy one software package that will do it all for them. They don’t want to buy a package here, a package there, a package somewhere else. That’s a very understandable desire on their part, however, by and large, this not a market in a position to meet that desire. So there’s a disconnect there and an enormous challenge that’s raised as a result.

Karl Schieneman: Yeah, I’ve talked to…

George Socha: One of the other things. Go ahead.

Karl Schieneman: Go ahead. Yeah, I’ve talked to a number of people that made big record management archiving investments, and then I expected that system to be their E-Discovery system, and really didn’t want to invest in further down the chain because we spend all this money. Why can’t we search with our record management system? Let’ do it anyway and that can create all sorts of problems.

George Socha: That creates all sorts of problems. But, often, when they tell you they’ve invested in a large records management system. When you inquire further, you find that really what they invested in was an email archiving system. Now, there’s nothing wrong with investing an email archiving systems, and there are many reasons to do so. But email is only a piece; there are many other data types out there stored in many other locations that need to be dealt with as well. So having an email archiving system doesn’t solve everything. In addition, if you have an email archiving system, but you also allow people to store email messages in PSTs or OSTs on their hard drives of laptop or desktop computers or store them in file shares, that creates some problems because you’re probably going to be required at some point, and if you get involved at enough litigation to go look at those places as well, and that defeats to a large extent that the economic argument for having put the archiving system in place. Even when they put records management systems in place, usually those records management systems only are effective for a small portion of the ESI within an organization. And then many of them, at least historically, have not been designed to allow for the complexity of searching necessary to locate things for litigation purposes where generally, you need to find things in ways that no one foresaw because if they’ve foreseen it, you probably wouldn’t have gotten into trouble you gotten in the first place.

Karl Schieneman: And I apologize I interrupted you. You had covered the monolithic corporations and you’ve also got the companies that, you know, have your one off case every few years for now. Oh, my god, what do we do?

George Socha: And for those corporations, it makes no economic sense for them to staff up and turn away with Electronic Discovery expertise. It makes no economic sense for them to buy often very expensive and extensive systems that call for a lot of work to install and maintain them in order to deal with Electronic Discovery. They have turned and are going to continue to turn to outside sources to help them. It may be their primary outside counsel, it may be they have no in-house counsel and so it’s their outside counsel who are going to turn to people within their own law firm to help them, and maybe that they will turn to a consulting firm of some sort or service provider of some sort to guide them in what to do because they don’t have the internal resources and they have no reason to build up the internal resources to deal with this, you know, once in a X number of years they think, problem.

Karl Schieneman: Yeah, so you don’t think…

George Socha: They need outside help for that.

Karl Schieneman: They do need outside help. This doesn’t make any sense at all, though, to at least have one person that’s becoming conversant in the area if they have the person to spare.

George Socha: If they have the person to spare. There are, though, fairly sizable corporations that have in-house legal departments who have one, two or three people.

Karl Schieneman: Yeah.

George Socha: Whose plates are full to overflowing already.

Karl Schieneman: That’s it.

George Socha: We don’t have a person to spare. If they had a person to spare, there would be many other more pressing issues that a person would have to deal with. And even if they had that person to spare, much of the time that person would be, if that person were devoted to Electronic Discovery activities in a corporation like that, much of the time that person would be sitting around with not much to do, which means that person wouldn’t be there for very long, not in that role.

Karl Schieneman: Okay. Let’s talk about two trends you highlighted in the survey this past year with early case assessments and project management. These make sense as ways to contain cost, but do you think we’re making real progress in these areas?

George Socha: I think we’re making progress, but it is slow progress probably necessarily so for either of those areas, early case assessment and project management, as with so many other things. There are three key aspects that need to be addressed. One is the people, two is the processes, and three is the tools. If you are going to do an effective job of some form of early case assessment, you have to know what it is you’re trying to do, what do you mean by early case assessment? You have to have someone, internal or external, who knows how to do it appropriately. Otherwise, you’re just stumbling about. And that person will be most effective with appropriate tools to work with and appropriate process to follow.

We are, as an industry, still trying to determine what we mean by early case assessment. You would probably talk with 20 people and come up with 30 different explanations if you got into the details at all about what constitutes early case assessment. And not to be too cynical about it, but often I think it has been mostly just a marketing term deployed by firm or organizations where what they offer is not early, it doesn’t happen until well into the case. It’s often not really about the case because it’s not tied to the complaint or the answer and the like, and often there is very little assessment going on. So it would be early case assessment if there really were connected to the case and involved assessments. That’s a problem.

Karl Schieneman: Yeah

George Socha: Project management is an ongoing challenge. It’s very difficult; still, to find people who can do a good job of managing the projects whether they are in corporations or law firms or with service providers. There are not enough people, still, with the expertise and the experience, the aptitude, ability, and so on to do this well and all too often they are expected by – service providers are expected to offer the project management piece essentially at no cost. To the law firms or law firms, when they’re engaged in a project management role are expected to offer that at essentially no cost to the corporations. So how can you offer something at no cost when it’s hard to find enough good and qualified people to do this in the first place?

Karl Schieneman: So those people can be making money for an organization doing something like talking to new clients.

George Socha: That’s right, and so the people tend to move around too much. You have the project manager at the day syndrome, you have project managers who are trying to manage projects with masking tape and rubber bands instead of more appropriate and effective tools or you have people who are designated as project managers even if they don’t have much in the way of experience or training to draw up. And to add to all of that and come back to an earlier point, we are—still in many ways, in early days in this industry—we still do not have a broad consensus about what constitutes appropriate project management in this arena. After all, most attorneys don’t do anything in connection with Electronic Discovery except, maybe, print things out.

Karl Schieneman: Yeah, I’ve joked you a couple of times recently about how I work in the concept search area and in analytics, but I spent a couple of years running a virtual law firm using cloud technology to manage people and lawyers helping them. Often at times, neither of these parties had a lot of technological savvy and I found some tools that would work. But if you try to sell both cloud project management and concept analytics at the same time, you’d be out of business in six moths.

George Socha: That’s right.

Karl Schieneman: Because it’s too new, but…

George Socha: It is still many ways early days.

Karl Schieneman: But you know, and that brings me to sort of something that, you know, innovation and experimenting is really critical to solving this problem. And, do you think we really have some challenges given how slow law is to innovate to solve this thing?

George Socha: Oh, definitely and this has been an ongoing challenge and I see no reason for that to abate. If you spend – and this is going to be a very unfair characterization, but I’ll go ahead and make it. If you go to law school, you spend three years being taught that you should not do anything unless someone else has done it for 100 years before. I mean, president, president, president; you hear about it all the time. All your arguments are supposed to be counted in terms of how – what you’re doing is what someone else has done before. And if you are going to do something new, you better try to convince people that everyone has been doing it for at least 200 years. It’s not an environment that really takes kindly to innovation. It’s an environment where [Indiscernible] [0:37:09] often for very good reasons. Lawyers are skeptical about changes that others are trying to bring about, but when it comes to this arena, because we are still in early days, because we are still struggling to figure out more effective ways of dealing with things, we are only going to get there through change and innovation. So you’ve got two very different sets of needs, cultures, and requirements coming right up against each other.

Karl Schieneman: Well, yeah.

George Socha: It will be able to take time.

Karl Schieneman: And the last thing I think about is when you look at the list of partners and firms, most of them get there by not making mistakes.

George Socha: Right.

Karl Schieneman: Because it’s a weaning out process.

George Socha: Right.

Karl Schieneman: Anyway, what other trend that’s out there that I wanted to touch on briefly, and there’s actually been a couple of announcements recently about trying to create some certification type movements since this process of trying to create more guidelines and standards and is that gaining traction or is it still the Wild West that no one really knows who to believe or what process is best and you know, what should we be doing?

George Socha: I think it’s actually two different but very related sets of issues—and that’s the impatience with the second—that is leading people to push more for the first. I am, of course if you take a look at the EDRM website, very much a proponent of the development of nonpartisan guidelines and standards both technical and non-technical for dealing with Electronic Discovery challenges. Until we arrive at the consensus about what to do and how to do it, at least threshold activities, not to put a cap on what people do, but at least give people the ability to understand the floor that they should be dealing with if they are able to. Until we get there, there’s not yet a place for certification because if you are going to certify someone as being an Electronic Discovery fill in the blank, what you need to do is say that they have learned and mastered a body of knowledge that has been vetted and is testable against known and accepted standards. But we don’t have that yet.

Just to give one example out of a vast array, one of the things that can be done with electronic files, unlike paper files, is to hash them. You can use different algorithms to do that, MD5, SHA-1, things like that. But you don’t just hash blankly, you hash at something. You might hash an entire file, but you might hash portions of a file and you can hash those in somewhat different fashions. We don’t have any consensus yet about what’s appropriate and what’s not. We have some people who feel very strongly that one way or another is the better way, but we don’t have a consensus. So if you are going to have someone certify the Electronic Discovery, that’s certainly one of the areas you would want to certify them on. But how do you certify them on that if there is no agreement as to what’s appropriate? So I understand the desire for certification very much. It’s easy to understand why people want that, but I think it’s still premature. I wish it weren’t but I think it’s still premature. We just are not yet at a point where we can do that. People want to leap frog past these many painful steps we’re going to have to take to a point where we have a mature industry, but we’re not there yet; one day, but not yet.

Karl Schieneman: All right, well let’s take a baby step for, you know, we’re nearing the end of 2009 or we’re getting closer to that, you know, what are your predictions for next year in E-Discovery?

George Socha: I think we are going to continue to see quite a bit of turmoil. We haven’t seen by any means the last providers disappearing, but we also have by no means seen the last of innovation. I expect to see yet more and interesting approaches to dealing with the Electronic Discovery challenges. One of the other things that’s happening is that the Electronic Discovery has become increasingly a global concern, and I think that’s going to accelerate. Because at the bottom, underneath all of this, the reason why we engage in these activities is because to handle a lawsuit or to deal with something similar; you have to find out what happened. And today, that means you ought to be thinking about looking at information that’s stored in an electronic form. And that’s true without regard to legal system. So we’re going to see more of this. I think we will see Electronic Discovery spreading much more broadly in the population.

As we get closer—and this isn’t going to happen in 2010, this is going to be 2010 and beyond—as we get closer to an agreement about what the threshold level of activities are, as we get more stable processes to find, as we have more easily used less costly tools available, as service does get more standardized, it will be more and more possible for folks to engage in Electronic Discovery activities when they don’t have just the mega cases. So I think we will see Electronic Discovery spreading out farther in the market place because of the underlying need not because providers wanted to, but because people have to deal with the information. We will move closer to agreement about what needs to be done. We will one day get, perhaps, to certification but I’m skeptical about that. After all that we have, I just don’t recall, do we have any litigation support certifications or coding certifications?

Karl Schieneman: Are there? Yeah.

George Socha: We’ve been doing coding for, what, since 1966 at least. And I don’t think we’ve got much in the way of certifications there. So I’m not too optimistic on that particular front. I am sure we’ll see more case law on the issue, but I hope—and this is probably more of a hope than a prediction—that as we go forward, people will start to deal with this with a greater sense of proportionality recognizing that just because it’s an electronic form doesn’t mean we have to go all out. That’s not what’s required under the rules and that’s not what should be required under the rules. Hopefully, people will figure out more and more that here are reasonable steps they can take; here’s how they can go about taking reasonable steps and we’ll get a little more over rationality to all of this.

Karl Schieneman: Do you think by 2015, we’ll have those certifications and it will be the time to have top 10 list or we’re still further out in that, you think?

George Socha: Wouldn’t it be nice?

Karl Schieneman: I want to know if it’s in my lifetime. Otherwise, I gotta get out of this field.

George Socha: [Inaudible] [0:45:24]. You know we have a long way to go, things are very different now than they were five years ago, but just the fact that they are very different now than they were five years ago is part of why it makes it difficult to get a point where we can have certifications and the like.

Karl Schieneman: So it’s sort of like being a cup stand, I guess, right?

George Socha: I guess so.

Karl Schieneman: Well on that note, I want to thank you for having joining us on ESI Bytes. I thoroughly enjoyed this, I think it’s been a great show, and would like to have you certainly on future shows.

George Socha: Thank you for having me.

Karl Schieneman: For the listeners who just listened to this show, for a full list of podcasts visit www.esibytes.com. You can use the scroll bar to search and find different podcasts by speakers or topics, lightly based on the EDR model, and you know, we all say here at the end visit ESI Bytes to learn about E-Discovery before ESI bites you back again. Thanks again and have a nice day.

Recorded 10/02/2009

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