January 31, 2008
FeedDemon is Now Free -- Read Why
Many of you know FeedDemon has been my preferred RSS reader since I started using it at least 4-5 years ago. I've also played around with other readers, both PC client and web-based, but kept going back to FeedDemon. I also chose FeedDemon as the best RSS reader or news aggregator for a prior Law Office Computing Shootout feature article. It packs a ton of useful features into a very intuitive, fast, and polished package. But rather than extoll upon its many great features and advantages, MediaBlab has already done a fine job of that.
Lest ye think NewsGator is abandoning their client-based software programs, it's just the opposite according to Nick Bradbury, the programming genius behind FeedDemon. In a nutshell, they're making it free to expand their client software users. Why? Because we humble human beings seem to make an effective relevance engine. You see, when using one of these now-free NewsGator programs, it sends back information when one flags an article, saves a clipping, or e-mails it to a friend. By these simple actions, we're signifying that particular item was important or relevant. I'm quite reminded of how Google was founded upon ranking relevance via tracking a site's inbound links. Nick gets it.
All this aggregated information helps NewsGator determine which RSS feeds and articles are more relevant than others, and helps them "bubble it up" to the surface for their enterprise customers. That's where NewsGator is refocusing their efforts and attention. So in exchange for getting the software free, users help them by doing nothing more than they are already -- reading, flagging, searching, etc. As Nick says, "Your attention is valuable." Sounds very Web 2.0 to me.
To their credit, both Nick and NewsGator recognized that we're just a little concerned about our privacy. Nick covers that in his post, and points us to NewsGator's FAQ so we can decide for ourselves. Apparently, we can choose to disable the data collection and reporting mechanisms, albeit at the loss of features like data synchronization.
Also, since many of their enterprise customers use these very same programs, Newsgator appears to have a vested interest in keeping them updated rather than abandoning them.
I give them credit. In a very innovative way, they're providing value in offering a first-rate RSS reader for free and enabling us to see what news is popular with others. NewsGator is gaining value in return while being fairly transparent about it. Of course, the new free FeedDemon 2.6 specifically contains more "phone home" mechanisms for "attention reporting". While I would normally suggest staying with an earlier version for privacy reasons, if their FAQ is accurate and we can indeed disable those tracking and communication methods, then there's probably little harm. Besides, even if they could still track my RSS reading habits, there's nothing there that would make me miss any sleep. But I'd still hold them accountable so that all users have a clean choice.
I also really like Nick's attitude and customer focus in his other blog post:
"Sure, I enjoy making money as much as the next guy or gal, but I'm really doing this because it's fun. I like writing software, and I'm going to keep writing it until my fingers break off.Now there's an attitude I wish more software developers would fervently adopt!
January 30, 2008
See You in the Big Apple for LegalTech!
You can tell it's only a few days before LegalTech NY when your inbox is bulging with vendor press releases and requests to meet at the show. Coupled with ILTA's involvement and their great educational tracks, and additional events such as Envision Agency's inaugural InsideLegal™ Business Summit, it's shaping up to be a good show.
Most of all, I'm looking forward to catching up with many of my friends and colleagues, making new contacts, and taking in the new developments, product launchings, and various briefings. As expected, the show is heavily dominated by EDD players, and shows like LegalTech are a great way to stay abreast of the various methodologies and solutions offered in this busy, busy market space. It seems like just about every day I'm hearing of a new product, service, or partnership, so I'm looking forward to getting an espresso-like jolt at the show. If you're there, look me up.
January 29, 2008
2008 Thoughts on Vista & Office 2007
Listening to the tech press, you'd think Windows Vista is on its death bed. John Dvorak is behind the "Vista Death Watch", and other trade mags are supporting efforts to "save" XP. Not that the latter is a bad thing -- Windows XP's current state is that of an excellent operating system, very stable and mature, with more moderate hardware requirements than Vista. But of course, that wasn't how XP arrived, was it? No -- lots of hardware and driver incompatibilities, and it was very unstable and regularly crashed for many until the first two service packs (SPs) showed up. XP SP1 even managed to trash a number of PCs so badly their owners had to wipe them and reinstall XP from scratch. Talk about the ultimate failure for a patch designed to increase stability and performance. Thus many IT pros are waiting to see what SP1 will do for Vista.
Will Vista end up similar to how the market received Windows ME? The comparisons would seem apt so far. With each platform generation of Windows, Microsoft has typically taken three times to get it right, and the fourth to bloat it up beyond repair. The last time around, it was Win95, Win98, Win98 SE (widely acknowledged as the best and most stable of the Win9x series), and of course the "Millennium Edition" which was so bloated and troubled that it mainly only saw installations in the consumer PC market -- and many of those were sold as pre-installations on new PCs. This time around, we started out with the clunky Windows NT, saw substantial improvements in both Windows 2000 and XP, and are still wondering how Vista will play out.
The big success story for Microsoft is that their new Office 2007 line rocks compared to their previous efforts. I've been using the Office 2007 Professional suite since June and am hooked. Better and easier comparison tools built into Word (finally!!!!), built-in metadata removal, etc. The ribbon bar simply rocks. Outlook 2007 is a joy to use and its built-in search is blazingly FAST! I added OneNote 2007 recently and it's really been improved -- lots of new features and integration with the other Office 2007 apps and IE to easily move information over to OneNote. OneNote's new indexing and search within images is utterly fantastic. Microsoft actually listened to their customers in developing Office 2007, and it shows. While organizations will need to plan their migrations and third-party integrations with the Office 2007 suite carefully, I think many will like the numerous improvements once they give it a chance.
Despite the press-mongering, from direct experience I also don't have much in the way of negative feelings for Vista so far. Is it bloated? Absolutely. Does it consume disk space faster than an interstellar black hole? You bet. Does it seem designed by a committee with no unifying theme other than the "Aero" look and feel? Affirmative. But is it unstable? Not in my experience so far, although I'll reserve judgment until after I've installed all the forthcoming SP1-related patches. I've been running Vista Ultimate (32-bit) on a new Toshiba mid-range laptop since June with a TON of new and legacy apps, and overall it's been a pretty good experience. In other words, it hasn't stopped me from getting things done. No system crashes, no "stop" errors, mostly just some apps stopping and restarting.
With the above criticisms said, Vista is not without its charms. There are a number of things I really like about Vista:
Overall, and with the exception of hard-core gamers needing XP's faster performance, I see Vista as a nice OS for home users buying new PCs -- though it's somewhat crippled without Ultimate's enhanced features. Other than the new drive encryption and other security enhancements, it's definitely a tougher sell for businesses. There's just not that much noticeable improvement or enough compelling new features to justify moving from XP yet, especially when you consider the substantial cost and effort involved in testing/migrating hundreds of legacy programs to ensure their compatibility. Not to mention Vista has significantly higher hardware requirements if you want good performance for your users.
Thus Vista's OS licensing is only the tip of the total cost iceberg. IT executives are likely considering skipping Vista altogether and deploying the next OS, "Windows 7", when it ships (right now it's slated for 2010, but we all know Microsoft usually pushes back its ship dates along the way). The trick is to manage the time gap if Microsoft doesn't change their plans for phasing out XP. Currently, mainstream support for Windows XP SP2 will end on April 14, 2009, after which it switches to "Extended Support" that will last for 5 years until April 8, 2014.
As long as businesses are able to purchase new XP Pro licenses during this gap as needed, it will seriously undercut the need to upgrade to Vista. Many industry analysts are predicting Microsoft will extend XP's mainstream support given the considerable outcry from home and business users alike. However, MS usually waits to just before the support cutoff deadline before announcing any extensions, as earlier announcements would only serve to provide more reasons to stay with XP instead of upgrading.
Office 2007, on the other hand, is a noticeably superior improvement, and the clear winner from Microsoft this past year. Since switching, I never want to go back to an earlier version. The many new features and enhancements actually work well. Microsoft's apps division finally gets it.
Bottom line, if I were a CIO looking at Microsoft upgrades, I'd invest in Office 2007 and offset it by staying put with WinXP for a bit longer, especially as SP3 is coming and should extend its life. Don't get me wrong, I actually like Vista and have had a good experience with it so far. But when it comes to quantifying it, Vista is a much tougher sell for businesses than consumers.
January 20, 2008
My Favorite Free Utilities for Vista: Part 2
Continuing on with my favorite free utilities for Vista (see Part 1 for the first five):
While Windows XP and Vista can view and open .ZIP files natively, that's about it. I've used WinZip for years. While it's a great program with a nice user interface, it's not free, and it can't open a number of archive formats. The same goes for WinRAR, which prompted me to look at a number of free Zip-compatible archiving programs. I've concluded that IZArc is the closest thing to WinZip and it supports a staggering range of archive file formats. Per its web site:
"IZArc is the ultimate freeware archive utility supporting many archive formats like: 7-ZIP, A, ACE, ARC, ARJ, B64, BH, BIN, BZ2, BZA, C2D, CAB, CDI, CPIO, DEB, ENC, GCA, GZ, GZA, HA, IMG, ISO, JAR, LHA, LIB, LZH, MDF, MBF, MIM, NRG, PAK, PDI, PK3, RAR, RPM, TAR, TAZ, TBZ, TGZ, TZ, UUE, WAR, XXE, YZ1, Z, ZIP, ZOO. With a modern easy-to-use interface, IZArc provides support for most compressed and encoded files, as well as access to many powerful features and tools. It allows you to drag and drop files from and to Windows Explorer, create and extract archives directly in Windows Explorer, create multiple archives spanning disks, creating self-extracting archives, repair damaged zip archives, converting from one archive type to another, view and write comments and many more. IZArc has also build-in multilanguage support.
With IZArc you can open CD image files like ISO, BIN, CDI and NRG. It is also possible to convert such files from one type to another (BIN to ISO, NRG to ISO).
If you need to send large files to your colleagues, friends or customers who may not have archiving tool you can easily create self-extracting archive that can be extracted by simple double click." It can also encrypt files with AES for more secure transmission.
Web Site: http://www.izarc.org
[I also considered 7-Zip, which boasts the best compression with its proprietary .7z file format. However, 7-Zip doesn't handle nearly as many archive file formats as IZArc above. When sending compressed files to others, keep in mind they likely won't have 7-Zip installed, and using the self-extractor feature will result in an .EXE file that could be blocked by the recipient's e-mail or antivirus system. Regardless of which archiving program used, I recommend choosing the more common .ZIP format when sharing file archives with others, especially since Windows XP and Vista can open them natively.]
7. Microsoft Outlook Personal Folders Backup Tool
Even with Outlook 2007's expanded feature list, it still can't back up your personal folders or settings. Personal Folders Backup is Microsoft's free add-on for Outlook that will automatically copy your .PST file to another location. You choose the preset number of days for the backup interval. Your .PST file is the one that contains all of your e-mail messages, attachments, folders, contacts, tasks, and notes. So if your .PST file gets corrupted, deleted, or whatever, you can simply copy it over from your last backup.
The downside is that Personal Folders Backup does NOT back up your Outlook account settings, signatures, stationery, etc. -- it only backs up the .PST file. So if you need more robust backup solutions, take a look at Slipstick's list of Outlook backup and recovery tools. Most are not free, but they perform a more complete backup than Microsoft's free program. Keep in mind that most organizations have their own Outlook/Exchange backup solutions and data policies, so this type of solution may be more applicable for personal and SOHO uses. It's definitely better than not having any Outlook backup solution, especially if you use Outlook on a PC without an Exchange server.
8. Vista Shortcut Manager
Remember how Microsoft's free TweakUI would let you remove the shortcut arrow overlay from your desktop icons? However, since Microsoft has not updated TweakUI for Vista, Frameworkx has released their Vista Shortcut Manager. This one-trick pony allows you to remove or customize the shortcut overlay icon for Vista. Here's a "before and after" sample:
Before:After: It's purely cosmetic, but it gives your desktop icons a cleaner, more refined appearance.
Web Site: http://www.frameworkx.com/Frameworkx/solution.aspx?id=632
[In Part 1 of this list, I mentioned the powerful TweakVI utility. It can also remove the arrow from Vista's shortcuts. As I mentioned earlier, TweakVI is on my "To Try" list, but I need to emphasize that since TweakVI modifies so many of Windows' critical system settings, you better know what you're doing if you decide to play with it. In contrast, the Vista Shortcut Manager is much safer to try for this particular purpose.]
9. AusLogic Disk Defragmenter
While greatly simplified, Vista's built-in Disk Defragmenter has been lobotomized from the power user's perspective: There's no graphic status, not even a simple progress bar. Vista only presents a single button to click. After that, it lacks any indication of its progress or how long it will take -- could be minutes, could be hours. Place your bets, round and round it goes, where it stops nobody knows! (Not even Microsoft.) Thus the folks down under at AusLogics have released a free defrag tool that works in Vista, and you can actually see what it's doing. This is also helpful when you need to know where the unmovable files are, or when you're preparing to shrink and repartition your Vista drive.
However, there's a trade-off for that visual feedback: The AusLogic defragger doesn't give you any options for the defrag method or nor does it offer boot-time defragmentation. It also doesn't defrag Vista's Master File Table (MFT) yet -- that's slated for a later version. The Master File Table keeps track of all the file locations on your drive, like a table of contents. In comparison, Vista's built-in defragger also defrags the MFT, so it's a good idea to run it every so often to keep the MFT optimized. In this Knowledge Base article, Microsoft explains that Vista's Disk Defragmenter has a number of operational improvements, so you can decide for yourself how you best want to keep your drive defragmented.
Web Site: http://www.auslogics.com/disk-defrag/index.php
10. Microsoft Office Tips & Tricks Sidebar Gadget
So you've got the new Office 2007 suite installed, and are still learning its various features and nuances. To help you along, Microsoft has a free Vista sidebar gadget that delivers a new tip each day. One day it may have a Word 2007 tip, and the next a new one for Outlook, Excel, PowerPoint, Access, OneNote, or other Office 2007 apps. The gadget is relatively small, but clicking on it expands its size to display the tip's content:
Web Site: http://www.microsoft.com/office/greattips/default.mspx
January 19, 2008
Download Gartner's E-Discovery Vendor Market Analysis
Thanks to Guidance Software, who received Gartner's highest rating as a "Strong Positive", you can download Gartner's research note, "MarketScope for E-Discovery and Litigation Support Vendors, 2007", dated Dec. 14, 2007.
Gartner included 29 e-discovery vendors in its analysis. Its weighted evaluation criteria was based on each vendor's Market Understanding, Innovation, Market Responsiveness and Track Record, Offering (Product) Strategy, Business Model, Customer Experience, and Marketing Strategy. Gartner then rated each vendor on a 5-scale range between "Strong Negative" and "Strong Positive".
Keep in mind that analysts' projections and predictions should be taken as just that — sometimes they're right on and sometimes they miss the mark. With that said, this makes for an interesting current summary of the vendors' relative strengths and weaknesses, as well as providing further insight into the ever-changing e-discovery market.
Perhaps the most telling predictions are found in the executive summary:
"STRATEGIC PLANNING ASSUMPTION(S)
The research helps confirm that enterprise transformations will not happen overnight: "Through at least YEO8, enterprises should acquire tools in this market tactically. Achieving full proactive control over unstructured data — which is the ultimate answer to e-discovery challenges — will take between five and 10 years for most enterprises." "Few software vendors offer credibly complete solutions for e-discovery. Enterprises can, however, select products tactically to begin their long-term e-discovery strategy."
I agree it will take years, and may not even occur completely for some. When you consider large global Fortune 500 companies having numerous different systems deployed throughout different geographical and functional groups, there is no immediate silver bullet. It will take time for companies to define and analyze their needs, gaps, and problem areas, and then select and implement these solutions, not to mention effectuating the necessary change management throughout their organizations.
Congratulations to Guidance Software, and I'm sure many will appreciate having access to this market research.
January 18, 2008
My Favorite Free Utilities for Vista: Part 1
While Vista Ultimate has a number of nice system and user enhancements, it's still Windows. Meaning there are still many gaps to be filled and annoyances to be eliminated. Along the way I've amassed a number of useful little programs that have proven themselves. Some accomplish a number of great things, while others just do one thing particularly well. All have found a permanent place in my Vista bag of tricks. While all state they're free, you may want to check their respective web sites for more precise licensing information:
1. Taskbar Shuffle
It's stupefying that every version of Windows, including Vista, still won't let you drag your open taskbar buttons around in the order you want. Sure, XP and Vista can group similar windows together into a combo button, but I've never quite warmed up to it. Taskbar Shuffle is a tiny program that allows you to drag and drop your Windows taskbar buttons to rearrange them in any order you like. You can even rearrange your system tray icons with a hotkey combo, since they never seem to load in the same order with each reboot.
Web Site: http://www.freewebs.com/nerdcave/
Who hasn't seen Windows scramble our desktop icons, especially whenever the screen resolution changes? I've had it happen plenty of times when hooking up a projector. The more desktop icons and folders you have, the worse it gets. Windows has long needed some desktop Stickum. For Windows 9x systems, I really liked PC Magazine's fantastic WinTidy utility as the best of breed. However, it's no longer available freely (you have to subscribe), and it hasn't been updated for newer OSes, so it's either crashed or worked intermittently at best for me on various Windows NT-based OSes. While not as refined as WinTidy, DeskSave is another one-trick pony that saves and restores your desktop icon layout at different screen resolutions.
Web Site: http://www.desksave.de
3. Heidi Eraser
Vista, like all its Windows brethren, lacks the ability to properly erase a file or folder. (Deleting is not the same as erasing, a/k/a file wiping.) With Heidi Eraser, you can drag and drop files and folders to the on-demand eraser, use the convenient Windows Explorer extension or the integrated scheduler to program overwriting of unused disk space or, for example, browser cache files to happen regularly.
Heidi Eraser not only gives you a number of preset file wiping options, it also allows you to add your own. Besides the standalone program, it's also integrated into Windows right-click context menus. So it's easily accessible in Windows Explorer and Recycle Bin: Just select the files or folders, right-click, and click on "Erase". Eraser can also be used to securely move files or folders. In a secure move, Eraser copies the data you select to the location of your choice, and then securely deletes the data from the source location. In addition, it can erase unused space on a drive or removable disk, and even your entire hard drive via creating a "Darik's Boot and Nuke" disk (a/k/a "DBAN"), a well-known and respected disk wiping program. If you donate your PC's, or simply want to employ good data retirement practices, a program like Eraser is essential.
Web Site: http://www.heidi.ie/eraser/
Still using IE for your browser but wish it had more privacy and advanced features? Sure, Firefox is a great browser (I have both installed), but it requires plugins to gain more useful features. A single program, IE7Pro does for IE6 & 7 what it takes many plugins to add to Firefox. It's long list of features includes very effective Ad and Flash blocking, mouse gestures, entire web page screenshots (including those looong pages), auto-refreshing of pages (think eBay), IE crash recovery (remembers your last open set of tabs), better tab management, user-definable web site aliases (e.g., simply type "g" and press Enter for http://www.google.com), user scripts for downloading flash video from sites like YouTube, and a lot more.
Web Site: http://www.ie7pro.com
5. FireTune for FireFox
Want to get more performance out of Firefox? FireTune is a nifty little program that optimizes Firefox's internal performance to your PC hardware and Internet connection speed. For example, on a faster PC with fast broadband access, it makes Firefox run all out and increases the number of concurrent web site connections so it can load web pages even faster. On slower machines or slower Internet connections, FireTune throttles Firefox back to match performance for the best browsing experience. It can also optimize Firefox's memory usage, which is particularly useful if you have installed a lot of Firefox plugins. Per the site, FireTune does NOT modify the Firefox executable, or any other Firefox binary file, and everything can be undone easily with a single mouse click.
Web Site: http://www.totalidea.com/content/firetune/firetune-index.html
[I should note that Totalidea also makes the powerful TweakVI program that does for Vista what Microsoft's TweakUI did for earlier Windows versions, and then some. TweakVI is on my "To Try" list, but I need to emphasize that since TweakVI modifies so many of Windows' critical system settings, you better know what you're doing if you decide to play with it. In contrast, FireTune is much safer to try, and remember to click on its option to back up your current Firefox settings before making any changes.]
Stay tuned for Part 2 for even more useful free programs. . .
January 08, 2008
Qualcomm Sanctions Handed Down, Lessons Learned
Yesterday, the U.S District Court for the Southern District of California handed down the sanctions in the high-profile Qualcomm Incorporated vs. Broadcom Corporation case. In some aspects, this case is similar to the earlier Rambus memory case -- where one high-tech company participated in a standards-setting committee to gain an inappropriate business advantage over their competitors. In the Qualcomm case, Qualcomm could not win their patent infringement case against Broadcom if it was found that it had previously participated in the standards-setting body. Thus thousands of requested e-mails were not produced during discovery, and their existence was denied.
The 42-page order describes the circumstances and the court's reasoning. Both Qualcomm and its outside attorneys were sanctioned for what it called a "monumental discovery violation." Qualcomm either hid the existence of extremely damaging e-mails throughout, or at the very least stuck their heads in the sand by not searching key custodians' data. Either way, it's clear Qualcomm committed severe discovery violations. The court's problem was in determining the role played by their outside counsel, particularly as Qualcomm preserved its attorney-client privilege, which prevented outside counsel from fully defending their actions. Thus the court reasonably described four alternate scenarios regarding Qualcomm's outside counsel's knowledge and actions relative to the undisclosed e-mails that were substantially adverse to Qualcomm's case:
"The next question is what, if any, role did Qualcomm's retained lawyers play in withholding the documents? The Court envisions four scenarios. First, Qualcomm intentionally hid the documents from its retained lawyers and did so so effectively that the lawyers did not know or suspect that the suppressed documents existed. Second, the retained lawyers failed to discover the intentionally hidden documents or suspect their existence due to their complete ineptitude and disorganization. Third, Qualcomm shared the damaging documents with its retained lawyers (or at least some of them) and the knowledgeable lawyers worked with Qualcomm to hide the documents and all evidence of Qualcomm's early involvement in the JVT. Or, fourth, while Qualcomm did not tell the retained lawyers about the damaging documents and evidence, the lawyers suspected there was additional evidence or information but chose to ignore the evidence and warning signs and accept Qualcomm's incredible assertions regarding the adequacy of the document search and witness investigation."The court rejected the first three (partially due to Qualcomm preserving its attorney-client privilege and lack of direct evidence on the third), and found the fourth option to be most likely given these constraints:
"Thus, the Court finds it likely that some variation of option four occurred; that is, one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was sufficient, to ignore the warning signs that the document search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit. These choices enabled Qualcomm to withhold hundreds of thousands of pages of relevant discovery and to assert numerous false and misleading arguments to the court and jury. This conduct warrants the imposition of sanctions."In all the lengthy discussion, however, here's the money quote for those engaged in electronic discovery efforts:
"This dilemma highlights another problem with Qualcomm's conduct in this case. The Federal Rules of Civil Procedure require parties to respond to discovery in good faith; the rules do not require or anticipate judicial involvement unless or until an actual dispute is discovered. As the Advisory Committee explained, "[i]f primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse." Fed. R. Civ. P. 26(g) Advisory Committee Notes (1983 Amendment). The Committee's concerns are heightened in this age of electronic discovery when attorneys may not physically touch and read every document within the client's custody and control. For the current "good faith" discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search. Producing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith and does not satisfy either the client's or attorney's discovery obligations. Similarly, agreeing to produce certain categories of documents and then not producing all of the documents that fit within such a category is unacceptable. Qualcomm's conduct warrants sanctions." (emphasis added)Thus legal professionals are again cautioned that it is not sufficient to blindly rely upon a client's collection and production, whether it be paper or electronic. I came across this issue a number of times when involved in business litigation. Due to the huge volume of electronic data, it's tempting for a number of reasons to rely upon the data set produced to the law firm. However, as the court correctly held, that's not sufficient in of itself, especially when surrounding circumstances give rise to these concerns. From reading the ruling and earlier reports, I think it's fair to say that both Qualcomm and its outside counsel engaged in excessive gamesmanship, gambled, and lost big time.
Thus it's important for outside counsel to have access to a client's ESI, to direct their efforts, and to even withdraw if the client refuses. That's easier said than done, especially when an important big client flexes its muscles. However, it's still very important to prevent your firm from knowingly or unknowingly being made part of a fraud upon the court. It's also incumbent on outside counsel to conduct reasonable searches of the information themselves. While this is often delegated to more junior staff, senior attorneys are still responsible to ensure it has occurred. While some senior attorneys may not be particularly tech-savvy, they understand the importance of identifying and producing relevant and responsive documents, they understand the role that e-mail plays in modern litigation as a form of correspondence, and should know that sooner or later, it's going to bite them and their client if not appropriately addressed early on. Besides, most litigators know that it's usually better to disclose bad news yourself than have it come from the other side.
What's so surprising in this case is that Qualcomm was in possession of those e-mails before it filed suit against Broadcom, and therefore should have known it had critical weaknesses in its case. While unfortunate for all involved, at least it serves as yet another example of what not to do in handling problem items in electronic discovery.
More coverage of the ruling is found on Law.com.
January 02, 2008
Are Legal Service & E-Discovery Providers Becoming a Commodity?
It's funny how personal events tend to lead me into various thoughts and discussions about the legal market. Yesterday I flipped on my digital cable box to see that effective with the new year, Comcast has taken over Insight's cable business in Illinois. Knowing that Comcast has had several years of turbulent press (e.g., regarding tracking customers' web history, firing customers who used "too much" of their broadband connection, and the latest controversy over interfering with customers' BitTorrent file transfers), I did a little Googling to reacquaint myself with the latest news and blog posts.
In doing so, I found this insightful post at the Manifest Destiny blog. The gist is that broadband ISP providers are afraid to admit to themselves that they're just selling a mere commodity -- shipping bits. And, that it's virtually impossible for them to be honest with their customers if they can't first be honest with themselves. Before I relate this to the legal market, let me quote the following to help put things into clearer perspective:
"It must be pretty awful to wake up one day and suddenly realize that you're in a commodity business. As a software developer I've at least had a taste of it - it was unsettling to realize that an army of developers in Bangalore could churn out code better than I could, dollar for dollar. I had fooled myself into believing that what I was selling was so extraordinary and great that people would be begging - begging! - for me to deign to craft some SQL and PHP on their behalf. Such a rarified gift! Such a technical artiste!Which got me to thinking, "Haven't we been experiencing this in the legal market?" Legal work is being outsourced to armies of contract reviewers both here and abroad. Some of these lawyers aren't employed directly by law firms, as e-discovery providers are quick to tout their expanding review centers and legal outsourcing companies are growing. There are more e-discovery service providers than hardly anyone can keep track of (although my friend George Socha provides great value in doing so with Tom Gelbmann). Like the constant M&As in the wired and wireless telcos, e-discovery vendors are continuously being merged, acquired, and/or creating strategic partnerships with their "coopetition".
Is "Distinguishing" Easier Spun Than Done?
At various conferences this past year, such as ILTA's and ACC's annual conferences, plus the IQPC 4th E-Discovery Conference, I've asked many e-discovery vendors -- especially the conversion and hosting providers -- what distinguishes their services from their competitors? Some were quick to mention their proprietary web-based hosting and review software, while others point to their lower-cost contract legal reviewers, high-tech review centers, high-volume capacity, and/or quick turnaround. A few also mentioned either their top Socha-Gelbman survey rankings and/or their blue chip client list. While certainly impressive factors, these last two didn't serve to distinguish what they actually do.
Very few, if any, truly offer the full soup-to-nuts range of services all by themselves (i.e., without partnering). This isn't a criticism, mind you, as it's extremely difficult to build and excel in all aspects of the EDRM model by yourself, especially in the deadline-driven high-volume and high-stakes cases. Instead, several have distinguished themselves with niche software mousetraps for litigation holds and e-mail analysis. Others have begun building litigation-readiness consulting teams to get their feet in the door. I have to say I sincerely appreciated all their candor and hospitality, and overall found it to be a very congenial group of dedicated professionals trying their best to help their clients.
But for the most part, when I speak with lawyers and e-discovery consultants (some of which are both), many feel it's difficult to see any significant differentiation from a client's perspective, at least until they've had a chance to work together on projects. It's far easier for me to speak with friends and colleagues at law firms and in-house legal departments to hear who they've had good luck with (and those who have not been so good), than in trying to determine this from the e-discovery and law firm providers themselves. In short, even their best sales and business development executives have some difficulty with this, and it's understandable.
Now don't get me wrong -- legal and e-discovery providers offer valuable and necessary services, especially in light of the wide and blindingly bright spotlight cast by the increased focus on ESI. Rather, I'm simply left wondering how many firms and providers have truly recognized the market has already shifted into a more pronounced stage of commoditization. Everyone talks about providing "value-added services" while sustaining growth and profitability. The savvier ones focus on the client value not as the lower per-unit cost (thus recognizing the commoditization and competition issues), but on the overall cost savings achieved in successfully and timely resolving the matter -- all while avoiding the costs and negative publicity of discovery sanctions.
Larger law firms have been building up their litigation support and related IT professionals, and changing focus to make them a profitable line of business rather than a cost center. Yet some are still challenged to find this magic path while being extremely cautious (and rightfully so!) in taking on the liabilities and risks associated with the more forensic aspects. In addition, corporate counsel routinely say the top large law firms generally all provide high-quality services. In my opinion, this just adds to clients' perception of commoditization and their increasing desire to receive them at reduced or fixed cost -- assuming most everything else is being perceived as nearly the same.
Where Does This Leave Us From the Client's Viewpoint?
Answer: A rapidly-changing, crowded, and confusing set of choices. All of which makes it challenging for any single provider to, well, single itself out or make a large enough splash. Of course, a top-ranked spot still helps as lawyers tend to go with whomever most others are using -- as long as their professional network confirms good results. Offering a unique niche product or service is good too, and even better when properly aligned with one's other offerings and resources. Making it onto a client's preferred provider list is still incredibly important. Getting there and staying there without cannibalizing future revenues is the challenge. To borrow Bill Engvall's tagline, "Here's your sign" of legal commoditization.
Most recently, we've seen the entré of automated document search providers. In attempting to prove their solution is significantly more accurate and perhaps less costly than manual review, they are beginning to distinguish themselves from commodity-level contract reviewers. Indeed some of us are keeping an interested eye on these developments. While still nascent, there is potential here if they can deliver on their assertions and convince legal decision-makers that it's worth a try. Only time will tell if this is sustainable or just another tech fad that didn't catch on with more conservative lawyers. And if it does prove sustainable, how long before it too becomes commoditized? Or will there be a legal market "Google" to emerge as the distinguished leader?
As recessionary concerns grow, it will be even more incumbent on corporate counsel to continue to reign in legal costs while generating positive results for their corporate client. Some types of litigation matters increase in bad economic climates. Which means, of course, that the next few years could bode well for those service providers who can distinguish themselves with their potential client base and return consistently good results at an acceptable price. I'd even say the latter is the best way to distinguish yourself in the long run. As we all know from recent cases and the press, bad news travels fast.
As these services become even more commoditized, however, there will likely be even more shakeout and consolidation among providers. Now is a good time for those looking to fill in their gaps. Corporate clients generally prefer more depth in their outside providers. Not to mention their purchasing departments likely have been minimizing the number of outside suppliers to gain better pricing advantage and to simplify (i.e., reduce) their vendor administration overhead. They will likely provide some pushback to legal departments seeking new providers. In some cases, this will extend the RFP process unless or until corporate legal puts their foot down and tells them they need someone "Now!" So while there will be growth, particularly among e-discovery providers, expect it to be rather dynamic in terms of the overall player makeup. Like Comcast above, I expect the larger players will enjoy a larger land-grab. We'll also see a number of middle and smaller players assimilated or perhaps relegated to the less complex, more localized matters, where low cost and local access for clients is very attractive. We've seen this time and time again in the scanning and coding industry.
However, there's no magic crystal ball, and only time will tell how the legal market responds. There will be some legal decision-makers who have already recognized the importance of addressing these issues early, and many who will be economically cautious, only paying as needed. Sometimes that saves money, and sometimes saving money gets very expensive on the clean-up side. That's where having a good discovery advisor-partner is worth its weight.
We'll continue to see further consolidations and partnerships among e-discovery and other technology providers. We'll see more outsourcing, even if it's only internal to that provider (think coding banks in India and China, for example), to increase their global reach and financial efficiencies. And like my cable TV, we'll be launching our browsers or RSS readers only to find that ABC provider is now part of XYZ. Stay tuned...