Special Blog Post By Peter vR Sternkopf, TERIS CTO
In the very early days of eDiscovery, the market was defined by several independent software providers, utilized for the most part directly by law firms. As the technology and market have changed, several of these smaller providers have either vanished or been consolidated into larger companies. The challenges of remaining sustainable include the variation in clientele (service providers, corporations, and law firms) as well as the rapidly changing industry demands. Despite these challenges, and out of over 200 software applications, there are several notable software providers currently dominating the eDiscovery market.
Exterro’s integrated, all-in-one e-discovery platform, Exterro Fusion, enables legal and IT teams to manage the most daunting complexities and challenges often encountered in the convergence of eDiscovery and information governance. Historically the main competition for PSS Atlas (IBM), Exterro similarly provides management tools for discovery workflow as well as legal holds. With the addition of further capabilities in modular format, Exterro offers a more comprehensive solution than point-based software.
Autonomy IDOL Server
This branch of HP, focused specifically on the eDiscovery market, is considered one of the primary providers within the industry for enterprise clientele.
Viewpoint (by Lateral Data a Xerox company)
Viewpoint software is an all-in-one e-Discovery platform that covers the core components of the electronic discovery lifecycle, including Collection, Early Case Assessment, Processing, Analysis, Review and Production.
Nuix's eDiscovery software specializes in Early Case Assessment (ECA) with focus on extremely fast metadata/text extraction and indexing, analysis toolset, first-pass review, production and export. Their powerful technology is geared toward normalizing an organization’s unstructured data stores, making them instantly searchable and more manageable.
eCapture (by IPRO)
eCapture can handle virtually any electronic file type and email store, and offers powerful searching, de-duping, filtering and compound document handling; designed to handle large eDiscovery projects with speed and scalability utilizing a distributed, multi-threaded and centralized management system.
Venio FPR provides a single source for data culling, processing, ECA analytics, review, and production.
AD ECA is a stand-alone processing, culling and filtering solution. It focuses on the processing and first-pass review stages of the e-discovery life cycle and comes in both software and appliance formats.
X1 Social Discovery
X1 Social Discovery is designed to effectively address social media content from the leading social media networking sites such as Facebook, Twitter and LinkedIn. In addition, it can crawl, capture and instantly search content from any website. Unlike archiving and image capture solutions, X1 Social Discovery provides for a matter-centric workflow from search and collection through production in searchable native format, while preserving critical metadata not possible through image capture, printouts, or raw data archival of RSS feeds.
The Cloud Preservation service automatically crawls your web properties at chosen intervals, building an archive of html source code and resources, high quality snapshots, and a robust full-text search index. The service makes it a breeze to go back in time with all of your websites, blogs, Twitter accounts and Facebook fan pages to search content, preview the site, and export data.
Nexidia makes audio recordings easily reviewable and replaces the costly process of manual transcription and human listening with an efficient alternative. Nexidia's patented technology quickly indexes large volumes of recorded audio using phoneme patterns - providing higher accuracy than dictionary-dependent, speech-to-text based audio search. Advanced query technology and metadata integration allows reviewers to drill directly into the audio content.
Specifically geared toward providing technology-assisted review, this company shows promise in the predictive coding market and may expand this base in the future.
Content Analyst Analytical Technology (CAAT)
The CAAT platform is a dynamic suite of technologies known as Text Analytics. It provides organization tools for classification and email analysis; concept search; and other text analytics capabilities that automate most of the human activity traditionally associated with using unstructured data.
Enterprise Vault (by Symantec)
An enterprise communication and ESI archiving system that connects to Exchange, Domino/Lotus, SharePoint, file shares, PST/NSF archives, Database/ERP systems, IM systems and Blackberry SMS/PIN. Enterprise Vault enables users to store, manage, and discover unstructured information across the organization.
StoredIQ Information Intelligence Platform
The technology can discover, index, tag, classify, and act on unstructured and semi-structured data from a variety of different sources including file servers, email, archives, document management systems, and tape. Early case assessment can be performed prior to collection.
While suitable for any application that requires full text indexing and searching capability, Lucene has been widely recognized for its utility in the implementation of Internet search engines and local, single-site searching; and especially well-suited for eDiscovery software implementations.
The dtSearch Engine lets developers quickly add dtSearch’s proven “industrial-strength” searching, and file format and other data support, to applications.
Relativity (by kCura)
As a feature-rich review platform, Relativity provides image and native file review, diverse coding options, flexible workflow capabilities, integrated productions, foreign language support, text analytics, and visual data analysis.
Xera (by iCONECT)
XERA is a review platform designed with advanced Web technologies focused on the review, analysis, and production of electronically stored information (ESI). With the release of XERA, iCONECT delivers a new standard in legal review applications for law firms and corporations that expect to interact with technology in an intuitive and efficient manner.
Clearwell (a Symantec Company)
Purchased by Symantec last year, the Clearwell E-Discovery Platform was purpose-built for eDiscovery and was one of the first companies in this market to offer very niche-specific software.
There are also several up-and-comers who are turning their focus more intently toward eDiscovery, and may soon give the top contenders a run for their money. These include:
Microsoft: Already the major software leader for just about every other use, Microsoft continues to add more eDiscovery functionality into its products, such as SharePoint and Exchange. While it’s unclear whether a firm entrance into the discovery market is in mind, the company seems poised and ready to enter that market at will.
Google: With the advent of Google Vault, a program which offers archival and discovery functionality for Google Apps users, it’s very possible that more specific discovery software may be released in the future. Google is also extremely budget-friendly, with Google Vault running at a cost of just $50/year/per user.
IBM: Providing a range of product functionality, IBM (and its acquired PSS Atlas) offers just about everything from evidence collection and assessment to legal hold issuances. There is a primary focus on defensibility, reducing legal vulnerability and discovery costs simultaneously.
In addition, there is of course a multitude of vendors and service providers who use their own proprietary software. As the growing trend of eDiscovery continues, the list of industry leaders will only become even more impressive.
For more information and comparison tools, visit The eDJ Tech Matrix
No one wants to throw money out the window; unfortunately in the world of eDiscovery, many organizations are spending far more than what’s required. Beyond implementing proactive data management policies, corporations should also be looking to specific eDiscovery rules under the Federal Rules of Civil Procedure (FRCP) and the United States Code (U.S.C.) for cost reduction opportunities.
Below are two specific FRCP rules that can be leveraged by organizations to help them lower eDiscovery costs:
- FRCP 26(b)(2)(C): - Cost shifting through proportionality claims during the discovery period
Under the FRCP, the responding party bears the cost of complying with production requests no matter how outrageous they may be, unless it can be proven that the request imposes an undue burden or expense relative to the proposed benefit of the information being sought. Put another way, production requests are only considered valid if the value of the requested electronically stored information (ESI) is proportionate to the resources required for retrieving the ESI. In a vast number of cases, it boils down to the accessibility of the ESI; including where it’s stored, what form it’s in and the resources required for producing it to the requesting party.
Below are three options for bringing a proportionality claim under the FRCP:
When planning eDiscovery, legal teams should proactively assess the validity of document production requests and whether actions can be taken to reduce potential downstream costs (e.g., processing, review, and production). During eDiscovery, the responding party (usually the defendant) is often faced with production obligations that can be financially crippling. By following these simple tips, costs can be easily reduced:
- Equip the legal and IT teams with the proper technologies and expertise that allow them to quickly search and assess the potential costs of eDiscovery. Having valid, defensible eDiscovery cost metrics, can help counsel effectively argue for narrower eDiscovery parameters during FRCP 26(f) meet and confer negotiations.
- Work as cooperatively as possible with opposing counsel to negotiate a more cost-effective eDiscovery plan. Proactive cooperation will foster goodwill with the presiding judge and should a protective order be requested from the court, better position the organization.
- In the event ESI has been collected with overly broad discovery terms, don’t fret. With the proper documentation and assessment, legal teams can bring proportionality claims after collection to mitigate downstream eDiscovery costs (e.g., privilege review), which can be the most costly. If the responding party can prove an undue burden with a diminished benefit, the Court may retroactively shift all or part of the costs to the producing party.
28 U.S.C. 1920(4) and FRCP 54(d): Taxation of e-discovery Costs after the case
After a winning case has been closed, it’s possible to recover eDiscovery costs from the losing party. Under FRCP 54(d), costs are “allowed to the prevailing party.” Even though the word “costs” can be an ambiguous word, 28 USC 1920(4) clarifies that costs include “fees for exemplification and the costs of making copies of any materials.” Courts across the country have struggled with the meaning of “copies.” Does it include native file to TIFF file conversion? Does it include database searching by a third-party vendor?
Litigants and Courts don’t seem to have a definitive answer on what eDiscovery activities are included under “copies.” Some have taken the word copies more literally, disallowing eDiscovery costs outside the spectrum of copying, while others have done the opposite. Either way, attorneys on both sides can take proactive measures to receive a big return from the Court or minimize costs owed to the prevailing party, by adjusting their eDiscovery strategy to account for the following:
- Accurately track, record and log expenses, so the Court can accurately assess the claims for additional eDiscovery costs.
- Cooperate with opposing counsel to formulate eDiscovery preservation and collection parameters that target only potentially relevant ESI. This will help minimize additional costs and the risk of paying additional costs to the prevailing party.
Michael Hamilton is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on the issues solved with the eDiscovery management. His eDiscovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. He is a regular blogger on the E-Discovery Beat: http://www.exterro.com/e-discovery-beat/.
Seattle, WA – APR 04, 2012 – TERIS announced today that it has joined Exterro’s partner network to deliver the most complete, unified e-discovery platform to its corporate clients. As the first litigation services provider to offer the full Exterro Fusion® e-discovery software suite, including the advanced data management capabilities in Fusion Zeta™, TERIS is enabling its corporate clients to realize immediate ROI with integrated workflow, project management, and cost management capabilities across the entire EDRM.
“TERIS has seen increased demand from our corporate clients for an integrated, all-in-one e-discovery and information governance software platform. As an Exterro partner, we now deliver the most complete e-discovery suite directly to the source, eliminating the need for transferring of electronic evidence across multiple, disparate point solutions. The integrated approach presents tremendous cost savings, process efficiencies and risk reduction opportunities for our clients,” said Peter Sternkopf, Chief Technology Officer of TERIS.
TERIS provides e-discovery services and technologies that enable clients to assess their cases quickly and accurately. Exterro Fusion delivers a 360-degree view into the critical data and workflows required for defensibly and cost-effectively managing e-discovery, from identification, legal hold and in-place early case assessment (ECA) to collection, processing, analysis, review and production. With Exterro Fusion added to its full suite of services, TERIS now delivers the increased control and visibility required for defensibly managing all e-discovery tasks through a single, unified central command center.
“For many corporations, e-discovery remains a fragmented process. The addition of Exterro Fusion® to TERIS’ litigation service offerings will enable corporate legal teams to significantly drive down their legal costs in one, unified approach,” said Chad Smith, Director of Service Partnerships at Exterro. “We look forward to working with TERIS as a strategic partner, helping our clients tackle the complex challenges posed by ever-changing litigation requirements.”
Founded in 1996, TERIS provides legal support and sophisticated eDiscovery and Information Governance solutions to corporate legal teams and law firms across the U.S. and internationally. TERIS’ staff of almost 300 was named one of the top 20 eDiscovery service providers in 2008 by industry researcher Socha-Gelbmann. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, and Dallas. To learn more about TERIS, visit TERIS.com or follow the company on Twitter at Twitter.com/DiscoverTERIS or Facebook (Facebook.com/TERIS).
Exterro, Inc. is the pioneer and leading provider of workflow-driven e-discovery software for corporations and law firms. The proven Exterro Fusion® platform delivers a 360⁰ view into the critical data and workflows required for defensibly and cost-effectively managing e-discovery across the EDRM spectrum. The innovative suite of e-discovery applications built on the Fusion platform unifies all phases of e-discovery – from identification, legal hold and early case assessment (ECA) to collection, processing, analysis, review and production. Fusion’s open architecture integrates seamlessly with existing business processes and enterprise infrastructures. To learn more, visit www.exterro.com.
David Kaufer, Partner, twelve23, 206-659-1495 or David.Kaufer(at)twelve23.com
Andrew Bartholomew, Exterro, 503-501-5133 or firstname.lastname@example.org