Nick and I spoke with about 30 software & service providers at LegalTech in New York this year; that’s in addition to the 30-some briefings (with some overlaps) last month for March’s upcoming annual e-Discovery report. We have a more comprehensive LegalTech wrap-up of vendor developments and shifts in the market landscape for our clients here , but here are some of the themes that came up at this year’s well-attended show. ALSO: we’re still soliciting end user participation in our e-discovery user survey, which you or your customers can access here, or contact me for more information  - all participants will receive a copy of the results.

Defensibility and the Scheindlin Opinion: Judge Scheindlin’s ruling in University of Montreal Pension Plan v. Banc of America was a hot topic, particularly the 85-page opinion “Zubulake Revisited: Six Years Later.” (pdf) It defines culpability for defensibility failures in ediscovery, i.e. what constitutes negligence, gross negligence and willfulness. Some of these include failure to issue a legal hold, incomplete collections, destruction of email or tapes, failure to preserve metadata and failure to determine accuracy and validity of search terms. It’s great to see some concrete guidelines, with obvious implications for e-discovery software and services. I found a concise wrap up here and from law.com here.  Software vendors are taking note, and already incorporating the ruling into their marketing.

Price sensitivity: Increased competition in the ediscovery market, lower budgets in legal departments, and more flexible law firm pricing due to pre-review data culling, LPO, AFA’s, etc. all contributed to greater industry price sensitivity this year, with more customer choices and influence in the market. Software and service vendors expanded pricing options and continued to target the outside legal spend from general counsel in their offerings. E-discovery service providers added per-gigabyte contract review to their software and service processes, and offered either “review management” or extensive collaboration with outside counsel. Software vendors offered more project management and monitoring capabilities for tracking time, cost and productivity. Collaboration workflows designed to lower outside counsel fees came up. Vendors increasingly talked about reuse of reviewed documents as another cost savings measure for serial litigants. Some vendor messaging was downright conspiratorial in insinuating that corporate legal could use software to throttle the law firm spend; although many e-discovery vendors have large law firm customer bases, the enterprise accounts remain lucrative and coveted.

New software releases: With deal sizes decreasing at some of the highest price points, there has been increased competition both from upstarts aiming to undercut the bigger names and the bigger names making a play for the mid-market. We heard a lot of “flat is the new up” last year, and many vendors seem to be hustling even harder to win customers by expanding to platforms or trying to tick all the RFI boxes with new features of varying validity. Even more than last year, vendors claim to be end to end and predict that customers want one throat to choke, and they’re attached to it. The customer market is more educated and savvy about its own requirements this year, which lowered the marketing artistry quotient quite a bit, but some of the features we saw added for legal hold, data mapping, retention and disposition policy, review, collaboration, and workflow are better than others. As much as customers may be tired of stringing together point tools with additional budget line items for auxiliary integration or conversion costs and extra fees, most of the products we’ve seen are not the silver bullets they promise - customers should continue to educate themselves about their organizational needs, what other companies are doing, and what the market has to offer. And vendors should consider that unhappy customers are usually the loudest ones.

Early case assessment: All the ECA product releases in the last year seem to have made it a de facto step in the ediscovery process, the only argument remaining is how early it should occur – as early as the initial data gathering at identification and collection, or just before review but after processing? The need for processing itself was a matter for debate - CaseCentral gave its direct Symantec Enterprise Vault connector a big push, but processing vendors advocate just as strongly for the benefits of thorough metadata extraction and preservation.

Information Management Reference Model: We missed the EDRM luncheon, but spoke with Reed Irvin of CA and Sandra Song of H5, the co-chairs of the group tasked with expanding the first box of the EDRM diagram into its own full Information Management Reference Model (IMRM). The working draft is a series of concentric circles outlining the information lifecycle from creation to retention, disposition, discovery and storage, including the architecture and business drivers behind these processes. We’ve written previously on the push for information governance in establishing a litigation preparedness and information management strategy, and are glad to see some structure and industry thought leadership put to these initiatives.

M&A: Lots of M&A buzz this year, unfortunately a lot of it speculation about vendors suspected to be looking for a necessarily swift exit.

A great show this year overall, and many thanks to everyone who took the time to speak with us.  We will be wrapping up the e-discovery report in the next month.  Watch this space.

Marc Adler and Marco Seiriö seem to think so.

Such a deal would seem a little strange coming less than a year after Sybase licensed the underlying complex event processing (CEP) engine for Sybase CEP from Coral8, immediately prior to Coral8’s acquisition by Aleri.

The terms of that licensing agreement provide a clue as to why Sybase would consider opening up its wallet again to snap up Aleri, however.

As Aleri insisted last March, “The licensing arrangement allows Sybase to embed CEP capabilities within and ONLY WITHIN Sybase products such as RAP”.

Sybase later confirmed (clients only) to us that this was indeed the arrangement and maintained that its strategy for CEP was to embed it within larger platform products.

As well as RAP – The Trading Edition, the company’s risk-analytics platform, Sybase also had plans to target opportunities in the telecommunications, healthcare and government sectors.

One justification for the acquisition of Aleri would be that it would allow Sybase to target those markets and other opportunities with a standalone CEP offering based on Aleri’s next-generation engine codenamed Ohio which is slated for roll-out in 2010 and is designed to include the best features from Aleri Streaming Platform and the Coral8 Engine and be backwards-compatible with both.

Then of course there are the Aleri/Coral assets beyond the core CEP engine, including the Aleri Studio visual modeling application, as well as dashboard and OLAP server capabilities, and packaged applications for risk and liquidity analysis and management.

As for why Aleri would sell out to Sybase - we certainly noted some trepidation from the company when we caught up (clients only) in September last year. While the company was buoyant about its plans for Ohio it was reticent to discuss details of customer wins/successes.

The only thing the company would say was that it had more than 80 customers, the number of combined customers when the merger closed.

At that point it was somewhat more confident, claiming (clients only) to be the largest pure-play CEP vendor in terms of headcount and customer base and revenue (although with none of the CEP vendors disclosing revenue figures, that last claim was always highly debatable).

Early case assessment - the most prevalent buzzword in e-Discovery int he past 12 months, I’d wager - is the subject of a webinar I’m doing this week with StoredIQ.

The main point I’ll be making that in order for ECA to be useful then it truly needs to be early; there is little point in waiting until the review stage, when high-fee lawyers are busy plowing through the information.

At that point you’re already incurring the costs of full review, so if you’re still in the process of culling .exe or .dll files from the stack then you’re wasting a lot of money, while also increasing your risk exposure of sensitive information leaving the enterprise when it doesn’t have to.

Webinar Title: Early Case Assessment - When Earlier Really Matters
Date: January 27, 2010
Time: 3:00 PM (ET)

You can register for the webinar here.

Well, you may not view it as a prize, but if you complete our e-Discovery/e-Disclosure end user survey, you will receive a copy of the survey results in return for your time. I didn’t make that clear in the earlier post, so wanted to rectify that.

The survey is here and it should take you no more than 10 minutes - time that we greatly appreciate.

We are embarking on an update to our e-Discovery report that we published in December 2008, called e-Discovery & e-Disclosure: this market is now in session. We aim to publish this new report in late Q1. It will be fully up to date with the newest products and services from vendors and service providers, as many will update their offerings in and around LegalTech in New York in early February, which Katey Wood and I will be attending.

As part of that report we are aiming to generate what we think will be the largest end user survey conducted in this market. The survey is online and open to anyone (although it isn’t anonymous so we are able to filter out any non-relevant entries).

The link is here and if you’re an end user in the e-Discovery or e-Disclosure world, be it a lawyer (whether in a law firm or general counsel department), a project manager at a law firm, a litigation support specialist; in fact anything relevant to e-Discovery/e-Disclosure, we’d love for you to participate to make this a fully-informed survey.

Also if you can help us distribute the link to make it a more inclusive survey, please get in touch via Twitter - @nickpatience or @kwood451.

In addition to the 451 Group’s own data warehousing webinar on Thursday I will also be taking part in a webinar on Wednesday with EnterpriseDB on the subject of open source database adoption in the enterprise.

During the webinar we will provide recommendations for how organizations can effectively leverage open source software. Attendees will learn about open source software trends for 2010, top considerations when using open source databases, and best practices for successful deployments of open source software.

I’ll be providing some data points from our recent surveys on database adoption and open source adoption while EnterpriseDB’s Larry Alston will also showcase successful enterprise deployments of Postgres Plus.

The open source database webinar is Wednesday, December 16, at 1 pm ET. To register, visit this link.

The data warehousing webinar is Thursday, December 17th, at 1 pm ET. To register, visit this link.

I got the chance to attend several sessions at the New York IQPC e-discovery event this week for some interesting perspectives on bringing e-discovery to the enterprise.

Recommind’s Craig Carpenter hosted a panel on Information Governance featuring Scott McVeigh, Director of RM at Aramark and Dawson Horn, Senior Litigation Counsel of Tyco, focusing on the benefits of litigation preparedness and getting organizational support from management and stakeholders. This issue came up more than once during the conference – the challenge of obtaining executive approval and participation from IT, legal, HR, compliance, procurement, RM and other stakeholders in planning, designing and deploying comprehensive information systems. McVeigh encouraged users to be vocal about the need for change, (over the course of several years if necessary), and to invoke C-level names to achieve organizational buy-in.

Autonomy’s Deborah Baron interviewed Karla Wehbe, Senior Information Resources Manager at Bechtel, for a case study of how the company is promoting document re-use by collaborating with outside counsel on a new methodology for ediscovery review. After parting ways with its prior law firm and losing access to previously reviewed documents, Bechtel established an information-centric approach to the process, facilitating re-use of reviewed documents through additional coding from outside counsel. The company claims that 5-75% of reviewed documents are now reusable.

Benefits include better control of document categorization and retention policy, as well as the ability for the company to “tell a story” with its evidence that can be communicated across cases. Wehbe acknowledged an initial “identity crisis” from outside counsel as the corporation established more control, but claims that they are now advocates of the process, and it has built trust and cooperation between them. An interesting example of the changing nature of the attorney-client relationship in corporate law. I am curious as to what their billing arrangement is.

Ian Campbell of iConect was joined by Kurt Michel of Content Analyst, VP of litigation for Phillips North America Timm Miller and Morgan Lewis Associate Denise Backhouse for a discussion of collecting ESI internationally, including EU data privacy regulations, the Hague evidence convention, blocking statutes, and the precedent set by the 1987 Supreme Court case Aerospatiale v. United States for requiring discovery even in defiance of blocking statutes from the jurisdiction of the data.

The difference in global collection philosophy is staggering (at least to this provincial American). Backhouse was asked (facetiously we hope) if it wasn’t enough for both parties just to agree “not to tell” about breaking regulations during discovery, and responded that that would violate the fundamental human right to privacy – literally a foreign concept to those of us accustomed to living under the Patriot Act. Not only could a company not access or even put a litigation hold on employee email in many EU countries, according to Backhouse even board meeting notes would be forbidden since they would identify attendees, potentially revealing where they were employed at the time.

The panel concluded that international e-discovery is not a checklist, but a carefully-negotiated balance between compliance and avoiding sanctions. We continue to follow this with interest, particularly the pending updates from the UK Civil Procedure Rules Committee, as Nick reported from the Thomson Reuters E-disclosure Conference in London.

Unfortunately I missed the judges’ panel, but the sessions I did attend were informative and underscored some of the trends we’ve been seeing in the market. Namely: the rise of Information Governance, the shifting of roles between e-discovery vendors, service providers, general counsel and law firms as technology moves in-house, and the increasingly (complicated) global nature of e-discovery.

We’re now hard at work on our 2010 long-form report on E-discovery and E-disclosure, featuring 25+ vendor profiles and comprehensive coverage of this fast-paced market – publication is slated for late Q1 2010, after Legal Tech. Stay tuned.

Following the recent publication of our special report, Warehouse Optimization - Ten considerations for choosing/building a data warehouse, I will be presenting an overview of some of the key findings in a webinar on December 17.

The report provides an overview of the data-warehousing vendor landscape, as tracked by The 451 Group, and examines the business and technology trends driving this market. It identifies 10 key technology trends in data warehousing and assesses how they can be used to choose the technologies and vendors that are best suited to a would-be customer and its specific application.

During the webinar I will present some details of those ten key trends and how we see consensus forming around some technologies that have previous divided the industry, enabling the conversation to move on to business-oriented issues. As the market continues to mature, differentiation among vendors will shift from a focus on specific technologies to a reflection of various business processes.

The webinar is scheduled for Thursday, December 17th, at 1 pm ET. I will present for about 30 minutes, followed by Q&A.

If you are interested you can register for the event, and download an executive summary of the report, here.

Such a busy three days at Gilbane Boston this year, I hardly had time to even follow the tweet stream from the event.  I was involved in four sessions and best I can do at this point is to recap a few of the key highlights from each.

The open source session I presented with Seth Gottlieb got some good response and was apt I think given the much larger presence of open source at the show overall this year.  Someone told me (but I didn’t confirm) that last year there were two open source booths on the show floor and this year there were six (dotCMS, Hippo, Nuxeo, Magnolia and Plone were the ones I counted - who am I missing?).  Alfresco and Acquia were notably absent I thought, though were both were represented on a couple of panels.

Open source also came up in the panel I moderated on portals, as we had Chris Stavros from LEVEL Studios there and Chris has done a lot of work with the Liferay portal.  We also had Glenn Mannke, Director of Intranet Development at Starwood Hotels and Resorts, talking with us about how they use Oracle Portal and how embedded this is in their overall infrastructure.  Russ Edelman lent his SharePoint perspective as did John Petersen from Sutro Software who has worked with the Vignette (now Open Text) portal for a number of years.  I’ll sum up the key takeaways from this panel as:

• Portals never went away, even though the marketing died down.  They were victims of the hype earlier in the decade.  Glenn in particular emphasized how portals are only becoming more important in his organization as the number of tools and apps they manage proliferate.
• John and Chris likened portals to a new Web OS that delivers application and infrastructure services.
• We spent some time talking about what those services are exactly and the panelists agreed that identity management and SSO are crucial.
• There was also some interesting discussion about client-side vs. server-side portals.  Is an app that can aggregate little windows on a screen a portal?  The panelists gave a resounding “no” to this question, given the lack of infrastructure services noted above.
• And portal standards (e.g., JSR 286) weren’t noted as being particularly important.

I thought portals might also come up on the panel I hosted on social publishing.  This brought WCM vendors together with pure social software plays for a discussion about where these two market sectors are headed.  It was perhaps not quite as heated as I’d hoped, but there was a bit of controversy.  David Carter, CTO from Awareness and Adam Mertz, Product Marketer at Jive, admitted that their systems don’t do WCM and that many customers still need that function (I think particularly for external sites), but that social is important enough to warrant its own layer in the stack.  They argued that WCM systems aren’t architected to support the dynamic nature of social media.  Lars Trieloff from Day Software and Dmitri Tcherevik of FatWire definitely didn’t agree.  Bryan House of Acquia (Drupal) argued that open source does the best job blending the two.

In general though, I think the panelists agreed that social is becoming part of so many other things (there was some discussion of CRM + social as well).  That still leaves me scratching my head as to the future of the pure social software vendors (I asked if Jive might also get into WCM, but, not surprisingly, didn’t get a direct answer).

SharePoint came up in all of these sessions, as it also did on the analyst panel, not surprisingly as SharePoint has an impact in social, portals, WCM and just about every other aspect of ECM.  Microsoft had a big presence at Gilbane this year, a little surprising to me since Gilbane is generally a pretty WCM-focused show. I had the chance to sit down for about an hour with Ryan Duguid, a Microsoft product manager for ECM in the SharePoint group.  He insisted SharePoint plays in .com-type WCM scenarios and pointed me to this list, which I have seen before.  It’s just doesn’t seem to come up much though in talking with clients and vendors about WCM.  And I don’t see too much in the 2010 release that looks to change that.  Am I missing something?

Overall, a good lively show.  I heard attendance was up and the exhibit hall was full of vendors - there never seems to be a lull in the influx of new vendors to this space.  Lots of interesting conversations about social, open source and online marketing, which all bodes well for a continued vibrant market in 2010.

Much, much later than I’d planned, here are my thoughts on the recent Thomson Reuters e-Disclosure Conference, held in London earlier this month, the program for which was ably run by Chris Dale, Browning Marean and George Socha. Chris has already penned his thoughts and so here are some of my key takeaways from the sessions:

• On the continuing challenge of preservation, collection and exchange: such challenges exist even at blue chip law firms. Parties still don’t discuss documents before case management (known as meet-and confer-in the US) meetings, despite rules in the UK saying they must do do. There was some trepidation expressed in that lawyers don’t want to reveal their set of keywords ahead of the meeting as it might indicate which way they’re thinking in terms of the case.

• On the challenges of handling electronically stored information (ESI) across the US, Australia, Canada, the UK and the other EU countries, Chris Dale pointed out that the UK  should be in an advantageous position vis a vis the rest of Europe due to its position within the EU, coupled with its common law disclosure/discovery tradition that the UK has and the rest of the EU does not. However it has to change certain things and the Civil Procedure Rules Committee is working on that in the form of a questionnaire and some other changes  and is due to publish its findings in early December. Master Steven Whitaker, Senior Master of the Supreme Court outlined some of the proposed changes and I’ve no doubt Chris will have more on this when the findings are published.

• On outsourcing litigation support versus doing it in-house, it was clear that both methods are preferred at different times and for different reasons, not surprisingly. But outsourcing is real, whether the legal profession cares to admit it or not. Junior lawyers in house are doing less & less first pass review as it’s done in countries such as as India, while experienced lawyers are not doing it at all anymore, which will have an effect on litigation support. The litigation support teams within law firms may not be growing, the number of project managers certainly is. The role of law firms as project managers as the next phase of e-Discovery/e-Disclosure is in line with what we’ve been hearing in our conversations with clients and vendors.

• On the use of technology for review, given the presence of technology vendors on panels it was not surprisingly claimed that smaller firms can get on a level playing field as big companies through use of technology. It was also claimed that manual reviewers are often justifying their existence to maintain salary and overtime levels, which is no doubt true in some cases. Anyway, it’s hard to see how someone can do eight hours of manual review a day without becoming tired and being prone to mistakes and comparing software against a supposed gold standard of human review isn’t such a gold standard after all.

• And finally, cloud computing, which is both scaring and stimulating the e-Disclosure industry in equal measure; well, perhaps scaring more than stimulating right now. As one speaker reminded those in attendance, it’s your obligation to know where your data is, even if you outsource it to a cloud data provider.

Overall a very worthwhile one-day conference and I’d recommend it to anyone wanting to get up to speed on the UK market and meet some of its key participants.