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The Second Age of e-Discovery

The Second Age of e-Discovery

Good governance – and the law – mandate that companies invest in e-discovery solutions for tracking down messages and files in the event of a probe

Having done the heavy lifting on e-discovery, Liddell has more sophisticated plans for Brunel. A next step will be to pilot language analysis with five per cent of the university. This will involve software that can interpret unstructured requests such as those in the text of email messages.

Among e-discovery software suppliers, the rush is on to provide comprehensive answers to probes by bringing together the disparate elements involved in the e-discovery process.

"We're able to talk to very large companies about holistic solutions," says Andrew Joiner, Autonomy's vice president for information risk and management. "Customers are struggling to evaluate all the solutions out there. It's still a very fragmented market and that's the approach being taken by most vendors. When you read an RFP [request for proposal], every section has: 'Who do you partner with in this area?', but we can offer a full spectrum."

Of course, others are singing the same tune. HP, for example, having acquired Tower, says it offers "an integrated archive platform" thanks to its email archive, storage management and other offerings.

Companies able to make sense of the changing face of regulation will be in demand over the coming months and years. As if all the recent layers of regulation and forthcoming red tape were not enough, the situation could well worsen. One driver for more activity is the sub-prime mortgage crisis and the strong likelihood of a spate of investigations into mis-selling.

Sub-Prime Suspects

"We're definitely seeing litigation in the sub-prime crisis because there have been high-wealth individuals [with investment portfolios] and some of these portfolios were put into mortgages," said Nicole Eagan, Autonomy chief marketing officer. "Downstream, we might see litigation about foreclosures. We think it could be the first time where voice recordings are called in."

Even without voice recordings being dragged into the equation, plain old text is hard enough to find and even harder to get rid of without resort to physical destruction, Eagan notes. "The delete key is the biggest lie on the keyboard. It's almost impossible to delete data forever," she adds.

The good news for corporates at the sharp end of a probe is that best practices are emerging. Autonomy's Eagan recommends making an early-case assessment of where the risk lies in the data in order to guide how and where the discovery process is conducted. Experienced legal counsel will also be critical at an early juncture. Eagan recommends having "a tech-savvy lawyer who can tell you the likelihood of there being a smoking gun so you can either choose to settle or go to court".

Often, experts say, suppliers and consulting firms will go in with a services-led approach that leads to lucrative returns, but vendors in the sector say that by setting up a dedicated team, outside knowledge can be largely dispensed with.

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