So let’s take a more in-depth look at these other market players based on things I’ve heard around the industry.  I would love to hear our readership’s comments as well.  The first merger I mentioned was Symantec’s acquisition of Clearwell.  Based on conversations with people in the know, it seems that Symantec has been trying to achieve two main goals: 1) replace their ailing Discovery Accelerator, which was the original “e-discovery” solution for their email archiving solution Enterprise Vault, and 2) leverage Clearwell’s brand recognition within the Early Case Assessment market in order to finish development of a holistic solution that can collect data in order to populate the Enterprise Vault archive.  Both of these goals make perfect sense, however in typical fashion for large enterprise software companies, these endeavors are moving along at a snail’s pace without a solid interim plan as to how clients can realize the long-term vision.

The second transaction listed above was HP’s Acquisition of Autonomy, which was fantastic from my perspective.  My take on this (and I believe this is the market’s as well) is that this acquisition was focused around information management and had absolutely nothing to do with e-discovery.  Autonomy was never positioned well from a technology perspective to actually perform true e-discovery. However, information management of large structured data sources has always been right in their wheelhouse and was the genesis of their IDOL technology.

And last but not least is IBM’s acquisition of PSS Atlas which was originally labeled an e-discovery acquisition, although PSS Atlas was always focused solely on litigation hold.  This has seemed to die on the vine since IBM has yet to determine how to leverage this technology outside of pairing it with their services division, which I can’t believe is their end-goal.  But they bought it for a song so I’m sure it’s not a pressing issue for them.

The funny thing about all of this is that the market seems to be working feverishly to scrap together a cohesive “end to end” solution when AccessData already has one.  What’s even funnier to me is that many analysts up until the last few months have been asserting that clients prefer a ‘best of breed’ approach.  Finally after over three years it seems that those who watch the industry are recognizing the market realities that 1) clients want to deal with fewer vendors and 2) they want to get as much as they can for their spend.  The same principles apply to all areas of business; however it seems to have eluded the e-discovery market until recently.  Well I guess it’s better late than never.

As I said previously if anyone reading this disagrees with anything I’ve said please let me know in the comments or shoot me an email.  Additionally if anyone would like to challenge AccessData on our capabilities vs anything in the e-discovery market we would be happy to set up a Proof of Concept in order to prove ourselves…

Finally, I hope to see you all in Las Vegas at our AccessData Users’ Conference next week!

The combination of these and many other factors are adding a great deal of complexity for both the IT department who is responsible for developing, deploying, and supporting legal review platforms, and for the growing number of users who need access to materials, but may lack the technical skills to use the older, more traditional solutions.

Many of the traditional legal review platforms were designed in the mid-80s as desktop technology that is seen as outdated today. Being from the 80s, these solutions are difficult to customize and it is nearly impossible to develop new features to keep up with today’s demands.   As data sets increase, the demands for faster access and better tools increase, and these traditional solutions are starting to show their age by not being able to keep up anymore. Also, many of the traditional legal review platforms were designed for more specialized or technical users, making them very difficult for untrained reviewers to learn and use. Additionally, legal review today often requires sharing information with other legal professionals – who may be spread across the globe – as well as with people outside the law firm, including experts, clients, and consultants. Interacting with these people allows a collective wisdom to be applied to any situation. So modern legal review platforms need to be more collaborative and they must allow information sharing, which the older tools do not allow at all, or just not very well.

With more and more demands being put on legal professionals, many law firms are turning to cloud solutions to support their core business needs. So why the change?  A cloud solution offers many benefits that can help law firms meet their changing needs. Using hosted cloud solutions, law firms can quickly deliver a legal review tool to any user who needs access to it. With no learning curve even the non-technical users can be productive in minutes. Even users who have never used legal review software before are usually familiar with email applications, performing web searches, and updating Facebook or Twitter accounts. Current hosted and online review platforms have a similar look and feel to these types of programs, so in most cases very little needs to be explained.

With installed solutions, law firms must select, configure, and install servers to support the tool, which is a model some law firms are more comfortable with because it allows them to keep total control over their data. However for those who would rather outsource, the cloud solution offers a model with no capital costs for servers, storage, and networking infrastructure. Also, operating costs are passed on to the provider. That means the provider is responsible for management, maintenance, upgrades, and electricity. The law firm only pays a subscription fee. New users need only a URL, username and password to gain access to a hosted solution.

Furthermore, cloud solutions offer rapid deployment and instant access to any upgrades installed by the provider. When any changes need to be made on a real-time basis, all of the work can be done on the hosted application, leaving the law firm free of any responsibilities.

Online – including externally and internally hosted solutions – also help legal professionals collaborate and share ideas when performing review and making decisions. Firms can easily include collaborators from outside the organization into the hosted platform without compromising their internal security. This is something that is complex and difficult to do with traditional, desktop-only review platforms. Such traditional solutions require the firm to establish user credentials within the organization, adding the outside user to application access privileges lists, and then working with IT to ensure the user could access the application from outside the corporate firewall. With a hosted solution, these problems go away.

And finally, hosted solutions are well suited to today’s highly mobile workforce. Legal professionals working remotely or at home can use their Wi-Fi-enabled laptops, 3G/4G smartphones, and tablets to get access to needed information at any time from any place.

Whether you are working with a solution provider to host your data for you or you are hosting your data yourself, consider the advantages of leaving the desktop and heading into the cloud.

The filing is the Declaration of Paul J Neale, CEO of DOAR Litigation Consulting, in support of plaintiffs’ objection to an eDiscovery ruling by Magistrate Judge James Peck in the case Da Silva Moore v. Publicis Groupe. In the filing’s opening salvo Mr. Neale states: “Defendants, along with their experts at Recommind, obfuscate the flaws in the ESI protocol (“the protocol”) adopted by Judge Peck……The protocol’s primary flaw is that it does not include a scientifically supported method for validating the results of the Recommind Axcelerate system’s predictive coding process as modified by the Defendants and accepted by Judge Peck. As it currently stands, the Plaintiffs, the Defendants and the Court will never know whether the Defendants’ predictive coding process met any acceptable standard for the production of documents responsive to Plaintiffs’ document requests.”

In short, as I read it, what Mr. Neale is saying is that Recommind’s Axcelerate solution was sufficiently a black box that opposing counsel was unable to figure out how it worked without a Daubert-type hearing (which the judge did not order – a fact that plaintiffs object to strenuously). However,  a  special hearing might not have been necessary had the product been more transparent.  To be fair many/most of the predictive coding approaches I have seen fall victim to this exact issue, which, in my opinion, is one of the primary inhibitors to that technology. That is not to say predictive coding isn’t useful, but I feel that it is not a substitute for review – it is merely an enhancer that should accelerate the pace of review and serve as a tool to confirm results.  However, the means by which it does this should not be hidden from the user.  Indeed, while Magistrate Judge Peck has permitted the use of the technology, it is possible that a more transparent solution could have avoided the expense of motions practice in this case.

Also revealed in Mr. Neale’s Declaration is an interesting statement about Recommind’s participation in the 2011 TREC (Text REtrieval Conference) study and alleged attempts to make their technology and process appear more reliable. According to Mr. Neale’s declarations Recommind’s representative Mr Seggebruch’s “statements in his March 7, 2012 declaration (that were also echoed by Recommind in its widely distributed marketing material), which refer to Recommind’s performance in the 2011 TREC study, are misleading and incomplete.”  For the complete picture of the ways in which he claims Recommind was “misleading and incomplete” I would refer readers of this blog back to Mr Neale’s declaration, but two of the biggest issues he mentions are:

• Accuracy: According to Mr. Neale, Mr. Seggebruch stated that “in one category, Recommind achieved F1 scores over 60%.” However, Mr. Neale suggests that a “draft version of TREC’s report of the 2011 study indicates that Recommind’s actual F1 scores were significantly lower than their hypothetical F1 scores. For example, for the same run in which Recommind received a 62.3% hypothetical F1 score, their actual F1 score is 24.7% and their recall was 25.8%. In other words, over 74% of all responsive documents were missed.”
• Credibility: Mr. Neale goes on to question Recommind and Mr. Seggebruch’s credibility and general behavior: “Mr. Seggebruch’s statements referring to Recommind’s 2011 TREC results are further undermined by the fact that Recommind has been banned from future participation in TREC studies due to violating their agreement with TREC by publicizing its preliminary results as compared to other participants in 2011 and prior years.”

Mr. Neale’s declaration is well written and does an excellent job of examining the myriad issues surrounding plaintiffs’ objections to the judge’s order. This blog simply isn’t long enough to do it justice.  The reason I am bringing it up in this blog is because it is simply another example of why consumers of eDiscovery products need to perform a thorough analysis, including a PoC before choosing a product. The act of purchasing an eDiscovery solution includes the acquisition of a long term partner. You won’t easily be able to divorce yourself from the vendor or the product and there will be times when the credibility of the vendor is of paramount importance. Make sure you work with a company that puts transparency and honesty ahead of all else and I personally would recommend avoiding any company that inflates its claims or utilizes complex, difficult-to-explain black box technologies for anything, especially something like predictive coding. After all you never know when the answer you need will be stuck inside the black box.

In the collection process, we first identify the information we are going to need to put a hold on, and then decide what data we need to collect and pass on for attorney review. Generally, the client will make a copy of the data being sent off to either a vendor or to outside counsel.

So that’s one copy of data. Within the law firm, the first thing I would be doing as a litigation support professional would be to take the media delivered from the client, and making a working copy on our network environment (Copy number 2). Then I would file away the original media for safekeeping.

From there, we’ll load this set of data into a processing or ECA tool to either process as is, or do some culling. The tool will take the working set of the data, extract all of the compressed formats (PST, NSF, ZIP, etc.) and import it all (Copy number 3).

Now that it’s in the ECA or processing tool, we’re going to export it out to a review platform so that it can be reviewed by a case team. This may or may not be a full copy of the dataset. Hopefully, the tool has allowed us to cull some of the data, but we now have, at the very least, a fourth copy of some of that data.

From the review platform, we will be producing another copy of data to opposing counsel, possibly producing a subset to an expert witness or two, attorneys are printing copies of documents to read offline, or creating notebooks for depositions, and any number of other copies are being created for various purposes.

As you can see, this becomes very difficult to keep track of, and I haven’t even talked about attempts to keep this data secure, which could be another article in itself. It also gets expensive. Storage may be cheap, but building the infrastructure for all this storage and keeping this data backed up sure isn’t. This is one, though not nearly the only, reason that I see two trends developing in the legal industry: The first is the move to integrated Collection/ECA/Review/Production tools. If you have one set of data being used across the different stages of the EDRM it eliminates the large number of copies that are left out there. The second is that more organizations who have the resources are moving toward hosting these platforms themselves, or working directly with vendors to host the data and make it available to outside firms. This allows an organization to have much more control, not only on the number of copies of data that exist, but also on when the data can be removed. Unfortunately, law firms aren’t exactly known for getting rid of data in a timely fashion and data not being purged within the normal data lifecycle policy becomes a risk.

Regardless of these trends though, it’s important for organizations to create and communicate the expectations on data handling to their outside firms, vendors and other third-parties, especially on timelines regarding archiving, or purging, non-active case data. These policies and expectations should be agreed to at the beginning of any engagement, and followed up on after the case is over. In my experience, this is where most communication fails. The case team finishes a case, and moves on to the next thing. Meanwhile, the folks who actually take care of the database administration, in the absence of direction from the case team, leave the data where it is. A reminder from the client can go a long way towards letting those folks know when to get rid of active data, and believe me, they want to get rid of data when they can!

It will take some work, and there are lots of variables to consider in each case, but the cost of having your data sitting around networks beyond your control for years and years might just prove more painful.

“Innocent until proven guilty” is widely accepted as a principle (and of course is emphasized in our Constitution), but is it being practiced?  Many believe that it is not– at least in regards to the disclosure of exculpatory evidence.

In October of 2011, Michael Morton was released from prison after 25 years detention for a murder conviction after being exonerated of all charges.  The court found that the Prosecutor (now a Judge) purposefully withheld exculpatory evidence that the defense could have used to prove his innocence.  Unfortunately, it cost Morton 25 years of his life before his innocence was revealed.

Shortly thereafter, it was determined that the Prosecutors in Senator Ted Steven’s trial also acted unethically by withholding exculpatory disclosure to the defense.  Though some argue it would not have changed the outcome of the case, it prevented Senator Stevens from a fair trial.

These two cases have received SOME media attention, but they are undoubtedly not alone. In response, Senator Lisa Murkowski (AK) introduced the Fairness in Disclosure of Evidence Act of 2012; ironically on the same day as the release of the report of prosecutorial misconduct in the Ted Stevens trial.

The Fairness in Disclosure of Evidence of 2012 would establish a uniform disclosure process and specifically require the government to produce exculpatory evidence to the defense. In summary, it would codify Brady and its progeny.

Supporters, including the American Bar Association, believe the bill will institute fairness into the criminal justice system.  As President of the ABA, Wm. T. (Bill) Robinson III commented:  “A clearly defined and codified disclosure standard would help eliminate the pitfalls of the current system where there is a multiplicity of disparate interpretations of the Brady obligation by both state and federal prosecutors.”

The general purpose of this bill is to require Prosecutors to hand over exculpatory evidence. Though Brady already seems to impose these obligations in court proceedings, this bill would introduce immediate consequences for the failure to do so. It would also assist in creating a uniform standard in disclosure requirements, instead of 96 disparate rules and policies.

As stated by Senator Lisa Murkowski in the Anchorage news:

“It is the solemn responsibility of federal prosecutors to secure justice — not simply convictions. It is the responsibility of the government to prove an individual’s guilt beyond a reasonable doubt, and if the government cannot, it is expected to voluntarily abandon the case. To keep Americans’ faith in the system we must raise the standards for government prosecutors and cut the chances that we will see the same “hide the ball” tactics Sen. Stevens faced.

The Stevens case was not unique.”

I strongly support the idea of this bill. However, I do not want this to be an excuse for the prosecution to overwhelm the defense with a tremendous amount of irrelevant data, which has also been an ongoing problem.

Hopefully, the bill will be able to accomplish the following:

1. Mandatory disclosure of exculpatory and prejudicial evidence. (We don’t want any surprises at Court either!)
2. A systematic approach to disclosing evidence. Data dumps to conceal exculpatory evidence should not be permitted.
3. A consistent and stringent approach for sanctioning Prosecutors who do not adhere.
4. Reasonable time allotted for the Defense to review large data sets.
5. Consistent and manageable production procedures to reduce cost and increase efficiency.

In a perfect world, the Prosecutors would hand over all evidence in an organized manner, ready for legal review and presentation. Don’t get me wrong—I do not believe that we should move to a civil law system, but this bill, if enacted properly, would avail some structure to the current chaotic system of disclosure.

This week we are posting an excerpt from our recently published EDRM Buyer’s Guide; a phase-by phase walkthrough and checklist created by a former Litigation Project Manager using guidelines developed during implementation of a top oil and gas company’s e-discovery program. The Guide is designed to help stakeholders evaluate software and workflow solutions at each phase of the e-discovery process in a neutral way and contains advisory sections on everything from information security to considerations when TIFFing documents. We will be posting excerpts from both the long form and checklist portions of the guide every few weeks – moving from left to right along the Electronic Data Reference Model [EDRM.NET]. This week we are focusing on the EDRM phase “Collection”. The EDRM Collection phase includes acquisition of potentially relevant electronically stored information (ESI). Collection should include both the document/file, as well as any associated metadata.

Collection is a crucial part of the e-discovery process, which is reflected in the wide spectrum of offerings and definitions in this area. Many providers offer some level of collection, but few have years of experience and a solid track record of delivering defensible results. Collection and Processing capabilities should be heavily scrutinized to separate inflated marketing spin from the real thing. Organizations should take particular care to test and ensure data is not being dropped or missed (open files and email, system files, large files, etc.) during collection.

While certainly not a court requirement, forensic data collection inherently achieves a degree of defensibility not available in a non-forensic collection. Forensic collection has other advantages, as well as heightened defensibility, including the ability to audit the collection and the ability to collect deleted files. No longer solely the domain of law enforcement, forensic collection is rapidly becoming understood and sought by opposing counsel and the courts. The organization that chooses a tool with forensic collection capability not only chooses the strongest level of collection stability, but puts itself at the front of a developing trend.

Whether the chosen solution offers a forensic collection capability or not, the collection solution must have a certain set of functionality in order to be minimally acceptable.

Organizations should review and ensure:

• Solution needs the ability to collect open files or files currently in use. Tools that fail to meet this critical criteria fall short of being legally defensible and leave organizations open to charges of incomplete preservation.

• Ability to (but not require) capture a full disk image¾this becomes especially useful in criminal investigations when a collection window is short. Case or custodian specifics can dictate the necessity for full-disk imaging (employee malfeasance or termination).

• The collection tool must have a full spectrum of criteria for both inclusion and exclusion, including the following: keywords (with full set of operands), file extensions, file type (internal file identification), file dates (accessed, modify, create, etc.), file path, file size, MD5 hash, archive search (ability to search and collect from compressed file types).

• Incremental collection capability¾meaning the solution should offer the ability to collect all modified or newly created data since the date of last acquisition. This is particularly critical for lengthy matters or matters that have a large number of mobile custodians.

• Also important since most organizations have many potential custodians located offsite and outside the corporate network, is the ability to collect from  employee laptops that are not logged into the corporate network.

• There should be a robust and valid throttling capability to limit network and resource impact when acquiring data during peak utilization periods or where available network bandwidth comes at a premium.

• The system should generate reports on non-responsive files (list of all files which did not meet search criteria and were therefore not collected), reports which describe the collection criteria w/associated “hit” counts, data sources, legal matter as well as custodians involved, and report a list of all collected files by name, type, source and size.

Finally a solid collection tool should not interrupt custodian’s day to day business activities. The process should be transparent to the end user and be automated to the extent that a collection is completely repeatable from one custodian to the next.

In 2008, a Federal Court in United States v. Graham[1] dismissed a criminal charge due to the government’s failure to produce its electronic discovery timely and effectively, ultimately making it impossible for the defense to provide adequate representation without undue delays.  As the Court stated, “discovery could have and should have been handled differently”.

It has been almost four years since the Graham decision, but has there been substantial improvement in the production of ESI in the criminal space? From my experience, I would say no. However, in the past few months, there have been some major developments which I believe will shape and improve the process dramatically, including the release of ESI Discovery Protocols by the JETWG.

In February, the Join Electronic Technology Working Group (JETWG) released recommendations and guidelines for ESI discovery. Leveraging the input and expertise of CJA panels, the FDO, DOJ, and other liaisons, these guidelines address the overarching principles that need to be maintained in order to improve the current disconnect. Though these recommendations do not bind parties to any particular process, they have carved out a clear process.

The guidelines address the following principles[2], excerpted directly:

Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.

Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.

Principle 3: At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.

Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any formats selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.

Principle 5: When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.

Principle 6: Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.

Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.

Principle 8: In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.

Principle 9: The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeing judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.

Principle 10: All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

Each principle is fully illustrated in the 3 separate documents produced by the JETWG: 1) Recommendations for ESI Discovery in Federal Criminal Cases, 2) Strategies and Commentary in ESI Discovery in Federal Criminal Cases and 3) ESI Discovery Checklist. Please read the full paper at http://nlsblogdotorg.files.wordpress.com/2012/03/final-esi-protocol.pdf

In commercial matters, some of these principles have been in practice for quite some time, for example, the meet and confer (Principles 3 & 4). However, these have not been previously adopted in the criminal arena making the discovery process more burdensome, extremely costly, and against the interest of justice.

Principle 8 is especially interesting: Multi-defendant cases should designate a discovery coordinator or seek the assistance of the Coordinating Discovery Attorney. In my experience working on multi-defendant matters, this principle is critical. As much as each defense team should have its own autonomy, having a designated Discovery Coordinator allows for a much smoother process for the general discovery. The Coordinating Discovery Attorney, for example, can provide guidance on best review and processing practices, appropriate vendor services and costs, procurement of funds, etc; areas which might not be that familiar to many criminal defense attorneys.

It has been a month since these protocols were released and I have already started to observe the benefit. It is not going to be a quick process, but I am confident that these protocols are the foundation necessary for efficient and effective management, review, and disclosure of electronic discovery in federal criminal matters.

Actually, I do know……

I’m not on board with the Theories of Nostradamus, nor was I worried about the Rapture predictions last year from Harold Camping predicting that the world would come to an end (TWICE, I might add).  However, I do feel that for those companies whose eDiscovery practices are not factoring in their employees’ mobile devices, doomsday is a lot closer than you might think.

In the next two or three years, being able to adequately monitor, secure, and collect forensically sound data off of mobile devices will become more and more important.  I would even suggest that within the next five years it will become more important than being able to retrieve data from your standard company-issued laptop.  While our spreadsheets, documents, and other bulky software programs will most likely remain on our computers for the near future, our communication rituals will continue to drift toward our handhelds.  More and more software products are moving to the Cloud and as we migrate to a more thin-based client interface, the easier it becomes to use our tablets and smartphones to utilize these solutions.

Test yourself.  Take the last week for example.  How many times did you either email or text from your cell phone or tablet compared to your computer?  I was sitting in Newark Airport last week and unable to pull out my laptop, so I conveniently downloaded my WebEx app and, voilà!  One more thing I can use on my cell phone as opposed to my PC!

When iPads hit the scene back in April 2010, there were a lot of people thinking that this “fad product” would quickly die out.  So with the release of the “iPad 3” looming, and unofficial unit sales totals for the previous iPad models being somewhere around the 53 million mark, I would argue that “Doomsday” is getting much closer for those not adequately prepared.

Speaking with Forensic Computer Examiners, Private Investigators, Police Officers, and Chief Technology Officers throughout the year, I continually hear one thing: “How do we stay ahead of the mobile tidal wave?”  The only bit of advice I can offer is to be familiar with what your employees or suspects have in terms of technology and understand how to secure it and pull forensically sound data from it.

If you’re a CTO or Director of Technology, take a look around.  How many employees have either tablet devices or smartphones?  A better question would be, how many of those devices were paid for by the company, and how many of those devices have data plans that are paid for by the company?

The purpose of this blog is not to attempt to instill panic or fear in you, but merely to point out that many have not figured out the current state of affairs as they relate to mobile devices, much less what the future may hold.  The important thing to take away from this is that if you are not bringing in the eDiscovery technology that can protect you, you need to be.

I’ll leave you with this thought.  My son who is 4 years old now received an iPod touch when he was 2 years old.  My 7 year old daughter strong-armed my iPad from me when she was 5.  To watch them navigate these devices now is truly amazing.  Here’s a recent Nielsen Study that claims 70% of tablet owning households have children under 12 that are using the device:

And yes, while I will admit that I’m no Nostradamus, I am willing to bet the younger generation will probably always gravitate to a tablet-like device when it comes to their future technology.  Set a Blackberry Bold in front of child who has mostly only used tablets and watch how often they press the screen thinking it will react.

Migration is happening right before our eyes.  Whether we use a tablet or not, it’s time we all realize…… this is no fad.

For those of you who don’t know me, I should probably start with a quick introduction.  My name is Scott Lefton and I’m Sales Engineer with AccessData.  For almost 10 years I’ve been in Litigation Support, some folks call me a “Summation Old-Timer”.  My career started as an IT Administrator for a mid-sized firm based in Los Angeles; Epstein, Turner & Weiss.  At ETW I worked closely with the litigators from case complaint to trial.  After a few years at ETW, I moved over to the vendor side and worked for Merrill Corp. as a trial Consultant.  At Merrill I began to work with many different firms throughout California, focusing on the Trial Presentation, software training, and general litigation support.   Around 2008 I moved back to my hometown, St. Louis (GO CARDS!!!) and continued to work as a trial consultant and software trainer for Midwest Litigation and in 2010 I began to work for AccessData.  I have worked on over 100 trials with veteran trial attorneys all over the county and with some of the nation’s largest firms, in addition to trial consulting I’ve been a Summation Trainer and a TrialDirector trainer since 2006.  Trust me when I say, I know what it’s like to be on the front lines of litigation support and what you guys and gals go through on a day-to-day basis, I’ve lived and breathed it from all sides.

I’d like to cover the Summation products and what it takes from a hardware perspective to be successful running them.  We have literally been inundated with requests to discuss the new Summation architecture and hardware specs, so I thought it would be a good idea to try to shed a little light on this topic.  In this post we will cover the architecture for both Summation Express and Summation Pro, which is are equivalent business tools (same features and functions), but have been tuned for small and large groups of clients respectively.

Summation Architecture

Summation (Express and Pro) is now a web based application, and there’s no longer a so-called ‘network client’ to install.  End-users simply log into the Summation via their web-browser, the only software requirement on the end-user side is the near-native viewer and MS Silverlight.  This is a night-and-day change from the iBlaze architecture that many of us are familiar with.  So what does this mean?  It means that NO processing, necessarily, needs to occurs on the end-user workstation (more on that later)!!! Gone are the days when you tried to OCR a large batch of docs that took days and days and then performed the database triple-lindy called, check, pack & blaze, OCR the next batch, and repeat… Or trying to create a large browser-briefcase, or loading a giant DII that would take the entire day.  All processing can now occur on a Summation Pro server.

I also want to point out some additional benefits of the new web-based solution.  For one, Summation is now much easier to use and intuitive, we’ve greatly streamlined the feature set.  One of the biggest challenges for me as a Summation trainer was sorting out all of the different ways to accomplish a single task.  Secondly, you are much better prepared for collaboration.  For example, if you have co-counsel, or an expert witness, or your firm has multiple offices; getting everyone access to the case data is now just a matter of setting them up with user credentials, and providing access to Summation web address.

Lastly I think it’s very important to note that the new architecture is FLEXIBLE!  You can start out small, say with a single server and build out the system over time as you organization and needs grow, adding additional hardware to the system.

The power of MS SQL

We now have true relational and enterprise-class database infrastructure.  SQL now offers Summation users, faster searching, faster bulk-coding, fail-over clustering, and high-availability, basically with SQL you will see increased performance in almost every aspect.   A common question I hear from clients is will I need SQL DBA to run this?  The answer is NO. You will not need a full-time SQL DBA in order to maintain Summation.  Almost everything from a Database Admin standpoint can be done directly thru the Summation management console and at no time do you need to manipulate SQL itself.

Summation Express

After reading the sections above you may be asking yourself, “We’ll that’s great but we don’t have that many users and/or I use a Mobile iBlaze license today.  How’s this new web-based architecture going to affect me?”  This is where Summation Express comes into play.

Summation Express is designed to be installed either on a Server or a contemporary laptop.  If you install Express on a laptop, that laptop can support all the work of a single user, just as iBlaze does today, only now you have a modern interface and much more powerful processing engine when called upon.  Having Summation Express installed on a server is ideal for supporting a small concurrent user pool of 1-3 users who require case collaboration.  Summation Express is literally identical to Summation Pro is terms of features.  Your operating system for the laptop or server can be Win7 or Server2008 R2 and it requires IIS or IIS Express.  All components for Summation Express to run properly will be installed locally on the laptop or the server.  Mobile users, have NO FEAR.  You can absolutely be successful running Express on a laptop.  Ideally you want a laptop with at least 4-8 cores and 8-16 GBs of RAM.  We had a number of laptops at LegalTech all running Summation locally, and I thought performance was pretty good using a laptop with i5 dual cores, and 4 GBs of RAM.

Summation Pro Hardware

Spec’ing out a Summation Pro system really comes down to two variables, 1) how many concurrent users you will have in the system at one time, and 2) what sort of data volumes are you looking to process.  If your firm is not processing large sets of data, you don’t need a tremendous volume of hardware.  A firm with a 5-10 concurrent user pool, will do just fine with a single server setup.  If routine processing of larger data volumes (+5GB) is a requirement, this is a scenario where an additional server would be beneficial.  Another option with a single-server setup, where routine processing of evidence is a requirement, is simply to kick off that job at night or during low-usage hours.

A Multiple Server Setup – Each component of Summation Pro can be installed on dedicated hardware.  Most setups I think will range from a single server, to a three-server setup.  A two box setup would consist of a dedicated webserver and processing working, and a dedicated MS SQL server.  A three box setup would consist of: Box 1 – a dedicated webserver solely running the web server, Box2 – a dedicated processing worker, and Box 3 – a dedicated MS SQL server.

Virtualization

Virtualization seems to come up in every conversation these days.  Here is the current status on Summation and virtualization.  We don’t recommend customers use VM’s for Summation.  We advise clients to use dedicated physical hardware, when appropriate.  That said, virtualization is NOT totally out of the question.  Some clients simply have no choice when the IT department mandates the use of a virtualized environment. In this scenario we will do everything we can to support you if you choose to use VM’s for your Summation setup.  In fact we have several clients running VM environments with similar AccessData products with a great deal of success.  Given your VM has the appropriate number of logical CPU cores and RAM, the system will likely run very well.

Online AND Offline ???

Since we are moving to a web-based architecture, I know a lot of you are asking yourself what happens when you can’t connect to the Summation server??? Or you need to take your case to a deposition, or to court.  No problem, you can use a mobile license to have a mobile Summation Pro/Express laptop! We’ve designed a copy case function that will allow the transfer of a network case to a local case(s) directory so you can take your case on the road, or work offline.  The end-user will have the exact web-based user interface and will still access Summation via their web-browser.  The only difference is they will be using IIS locally to provide the web services, and smaller, nimbler version of SQL for as a local database. 

This post was meant to give some general guidelines and commentary on the new Summation solution specification and architecture.    Please contact your account representative to schedule a one-on-one consultation with a technical representative in order to properly spec out a system to meet your needs and to inquire about a specification guide.  For those that prefer to use a hosting provider we offer that as well.  You will be able to leverage all the benefits of the revived Summation platform from the cloud as well.  We are incredibly excited about the new Summation release and I’ll have lot more info as things progress.  Should you have any questions feel free to email me at: slefton@accessdata.com or sales@accessdata.com.

Thanks and have a great day!

1. Courts and parties should demonstrate due respect for the data protection laws of foreign sovereigns and the interests of parties subject to or benefiting from those laws.
2. Where international legal obligations conflict, a party’s conduct should be judged using a standard of good faith and reasonableness.
3. In order to minimize conflicts of law, the scope of discoverable data should be limited to relevant and necessary information to support a party’s claim or defense.
4. Stipulations between the parties and court orders should be employed to limit conflicts where possible.
5. Companies should be prepared to demonstrate their compliance with data protection rules and safeguards.
6. Companies should retain protected information only as long as necessary to satisfy legal or business requirements, and appropriate safeguards should always be employed around data subject to preservation requirements.

Since the late 1990’s, the EU Data Protection Directive has required minimum data protection standards across all its European Union member states.  The rules include, among other things, the requirement that companies give “data subjects” (customers, employees, etc.) the ability to correct their data, use personal data only for the purpose for which it was obtained, and not transfer data to any country failing to enact adequate data protection laws.

Even by these minimum standards, the potential conflicts with US preservation and discovery laws, as well as internal corporate retention policies, are clear.  Add to this issue that individual EU member states may elect to adopt more stringent standards than the Directive requires and often do.  For example, blocking statutes protect citizens of certain member states from the compelled production of information for legal proceedings outside their borders.  Not only do these statutes provide a loophole for parties seeking to escape US discovery requirements, but when enforced, they can proactively penalize an EU citizen or litigant for complying with US law (see, for example, In re Advocat “Christopher X,” Cour de Cassation, Appeal No. 07-83228 (Dec. 12, 2007), in which the Criminal Chamber of the French Supreme Court upheld the conviction and fine of a French lawyer for violation of the blocking statute).

Although the United States signed the Hague Evidence Convention, American data privacy protections fall short of European Union standards – and even shorter when compared to particular member states – causing a strain between US courts and foreign authorities.  The EU’s mistrust of American data protection practices is not without merit, considering the US Supreme Court’s 1987 decision describing Hague Convention procedures as optional and not superseding the Federal Rules of Civil Procedure.    See Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 482 U.S. 522 (1987).  Cases throughout 2011 continue to demonstrate the American judiciary’s willingness to enforce broad discovery interests in the face of conflicting foreign privacy laws, although some courts did require the requesting party to exhaust Hague Convention procedures before attempting to enforce US discovery rules.  See S.E.C. v. Stanford Int’l Bank, Ltd., Civil Action No. 3:09-CV-0298N, 2011 WL 1378470, at *3 (N.D. Tex. Apr. 6, 2011), citing Aerospatiale.

This year promises intensification of the issue, as legal and business communities await the European Commission’s proposal for reinvigorating data protection rules, due for publication in the coming weeks.   In addition to existing data protection principles like transparency, finality, proportionality and data quality, the new legislation is expected to add data minimization (limiting a company’s collection of personal information to data “directly relevant and necessary to accomplish a specified purpose,” and prohibiting the data from being kept beyond the period of time necessary to achieve that purpose) and accountability (placing direct responsibility and liability for the processing of personal data with the controller, i.e. the person charged with data protection compliance at any company or institution).

Regardless of what regulations make it into the final legislation; a couple of things are clear: first, privacy impact assessments will become as commonplace and necessary as data retention policies.  Second, we can expect a steady increase in investigations by data protection regulators, competing only with the increasing frequency of internal investigations as private businesses attempt to root out risk and liability preemptively.  As the European Union strengthens its resolve to protect personal data and privacy rights in this digital era, US courts will undoubtedly face a growing number of challenges to conflicting preservation and discovery rules.  Let’s hope the Sedona’s latest set of recommendations succeed in easing the pain of parties caught in the middle.