As I said in my Information Insider October 2009 column, "The landmark 2006 Federal Rules of Civil Procedures Rule 26 and its updates make all electronic stored information (ESI) subject to legal discovery, and ESI continues its unbridled growth." Given the nation's increasing litigiousness, and the exploding amount of electronic information everywhere that could be subject to subject to 2006 FRCP rule 26, I am surprised how little we've heard about such litigation. Is it simply that our attention is elsewhere (whether the US Health Care debate, 2 wars, Global Warming –or is it Global Cooling?, the earthquake in Haiti…)? Or is eDiscovery yet another ticking time bomb that will burst onto the news when we least expect it? Well the vendors supplying eDiscovery solutions have plenty to say about that.
And what is special about eDiscovery? Why not just buy the very best search system available, and use it to do all the "e-lectronic" discovery that you want? After all, isn't it all about "search"? I spoke with Ursula Talley, VP Marketing of Stored IQ, to gather expert opinions on this subject. Here are excerpts from her comments about this, which I find pretty illuminating.
First, "Enterprise Search and eDiscovery Search technology do share a set of core capabilities, specifically crawling, indexing and searching data across a multitude of various applications and storage systems. Enterprise Search is designed to assist knowledge workers with information access and retrieval. The end result is that a user can find some files with information that can help that user complete a task." So what's the difference? Ursula went on to say "eDiscovery Search is designed to support a workflow that can be legally defended in court. The end result is a set of data files that is preserved (saved to a new, target location without any changes to the metadata and recording every system and location for each data file was originally located)." This kind of quarantining of content goes over and above what you can do with any enterprise search system. Moreover, she says that search performed by eDiscovery systems must also be very robust. Such eDiscovery searching can require queries with between 25 – 300 search terms. Moreover (for those of you who have ever posed a complex query on an enterprise search system, then went to have a cup of coffee while you waited for the result to return) eDiscovery search must be able to copy large volumes of content that has been found, "if necessary hundreds to thousands of gigabytes, without disrupting user productivity."
While it's at it, robust eDiscovery systems such as those from StoredIQ can provide de-duplication of email and user files (saving space and attorney time pouring over the same redundant files), while keeping a record of every location where those items originally resided – in case the judge asks. Lastly, searching just email systems can be a real pain, since they are so big and are threaded. Even the best search often is like sorting through low-grade ore, tons of it. eDiscovery systems also can extract both metadata and content from email and export this into a database format that can be queried and re-used into legal document review applications.
So how do you go about justifying the purchase of an eDiscovery system? Not by claiming you can add features to an existing or new Enterprise Search system. Instead, focus on the other features that you'll need if a lawsuit comes a calling. Unfortunately, getting your eDiscovery house in order may be like getting your electronic records management house in order – really hard to justify until after the lawsuit. Still, at least you can avoid the trap of thinking that Enterprise Search can do all you need to find and quarantine your information for a credible eDiscovery defense.
