ediscovery: The Ongoing Shift to Fortune 500 Clients

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1 ediscovery: The Ongoing Shift to Fortune 500 Clients A Look at Trends and Major Players in the Legal Vertical August 2007 JULY 2007 FocalPoint Securities, LLC Wilshire Blvd. Suite 1270 Los Angeles, CA Kevin Trosian Nishen Radia John Robertson Director, Technology Managing Director Associate Tel: Tel: Tel:

2 Table of Contents Executive Summary...1 Industry Overview...2 Rising Costs of ediscovery... 2 Why ediscovery?... 3 ediscovery Growth Rates... 6 Tangible ROI to the Fortune Technology Shift to Integrated Platform... 9 ediscovery Process...10 Data Collection Data Preparation Data Review Data Production Competitive Landscape...15 Growing Competition Vendor Landscape ediscovery Pure Plays ECM and Storage Security Providers Storage / Security... 22

3 Executive Summary

4 Executive Summary ediscovery Technology Market Could Exceed $5.1 Billion in 2011 Litigation costs and new laws are pushing a burgeoning industry forecast to grow at a 28% annual pace, from $1.4 billion in 2006 to $5.1 billion in Importantly, this estimate only includes technology, and is not reflective of consulting services, which comprises a sizeable portion of many of the largest ediscovery vendors. In fact, the market for offshore review alone, a service-based business, could exceed $5 billion, according to some estimates. $ in Millions $6,000 $5,000 $4,000 Figure 1 ediscovery Growth Rates Installed review application revenue Hosted review application revenue $3,000 $2,000 $1,000 $0 Source: Protiviti Inc Processing and production revenue Tape cataloging and collection revenue Collection technology revenue Including Services, Market Will Approach $20 Billion FRCP Rule 26f Places Increased Cost Burden on Defendants Fortune 500 and Global 2000 Enterprises are Target Customers Tangible ROI to the Customers: Litigation Cost Reduction of 75% Some estimates put service costs at 4x-5x the cost of the underlying technology, a standard estimate among most technology that must be integrated with service offerings. Even at a conservative 2x the cost of the technology, the size of the market can quickly approach $10 billion to $20 billion. And it is not the law firms that are driving the adoption, but their clients, Fortune 500 companies with multi-billion dollar revenue lines that face tens of millions of dollars in litigation costs. As more documents and communications move from paper and voice to , the volume of electronic documents has quickly overwhelmed lawyers involved with litigation. More importantly, the United States Supreme Court approved a number of amendments to the Federal Rules of Civil Procedure, including Rule 26f, which governs the manner in which civil actions and suits are conducted in federal court. The amendments were enacted December 1, High-profile cases are driving law firms, and increasingly also driving Fortune 500 and Global 2000 enterprises, to consider the opportunities and challenges of ediscovery and adopt the requisite services and technologies. The ediscovery marketplace is undergoing rapid evolution due to technology adoption as well as legal amendments, providing new growth opportunities for traditional software vendors. According to Gartner, companies that have not "adopted formal e-discovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services." And as the volume of information grows dramatically in size, this can quickly become costly to both sides, as data, in both paper and electronic forms, can reach terabytes in certain cases. Evidence, no pun intended, has pointed to ediscovery reducing the cost in certain areas of litigation by up to 75%. Large enterprises, when hiring outside counsel, will look to these statistics as an easy target for reducing expenses. 1

5 Industry Overview

6 Industry Overview ediscovery Spending to Reach $5.1 Billion in 2011 ediscovery technology spending will grow from $1.4 billion in 2006 to more than $5.1 billion in 2011 as enterprises realize that they have no choice but to prepare for electronic discovery. Source: Forrester Research and FocalPoint Securities, LLC Rising Costs of Litigation Legal costs in the United States and worldwide continue to play a major role in business. Recent studies have shown that lawsuits represent over 2% of US GDP, more than double that of most other Western countries. According to Pacific Research Institute, legal costs can create nearly $700 billion in lost stock value and up to $400 billion in lost sales due to curtailed investments. Figure 2 Rising Tort Costs in the United States Millions $179 $205 $233 $246 $260 $261 $261 $270 $ % 2.0% 1.5% 1.0% % E 2007F 2008F 0.0% Tort System Costs Tort Costs as % of GDP Source: Tillinghast-Towers Perrin, 2006 Update on US Tort Cost Trends and Insurance Institute of Michigan Today, litigation costs and legislative oversight, including HIPAA, the Graham Leach Bliley Act and Sarbanes Oxley, are respectively having a negative financial impact on healthcare, financial institutions and the public markets in general. Not only are these acts increasing the costs to Fortune 500 and Global 2000 companies, they are arguably also providing more ammunition for lawsuits. Legal Discovery According to Law.com, more than 90% of new business records are created electronically, and 40% of them are never converted to paper. As such, electronic records have become the de facto form of evidence in business litigation, and therefore the key component in discovery. As more information is being stored and communicated electronically, from s to Word documents to voic s, producing this e-evidence has become increasingly complex. 2

7 Industry Overview Discovery represents up to 90% of litigation costs ediscovery vendors no longer service bureaus, but tech or techenabled services firms Legal discovery "is the act or process of finding or learning something that was previously unknown." In effect, it is the full disclosure, at opposing counsel s request, of information related to lawsuits, corporate investigations, and regulatory audits. According to multiple studies, this legal process of exchanging and reviewing information represents approximately 75% to 90% of all litigation costs. In addition, the ediscovery marketplace is undergoing rapid evolution due to technology adoption as well as legal amendments. Electronic discovery, also known as ediscovery, refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. The nature of digital data makes it extremely well-suited to investigation. For example, digital data can be electronically searched with ease, whereas paper documents must be scrutinized manually. Furthermore, digital data is difficult or impossible to completely destroy, particularly if it gets into a network. Prior to the widespread use of enterprise content management solutions and databases, ediscovery was primarily limited to scanning and copy shop service bureaus. ediscovery became more complex as company documents moved to and remained on servers and computers. This shift in ediscovery has resulted in technology and technology-enabled service providers becoming the industry s dominant players. In addition, the use of technology and technology-enabled service providers has enabled in-house corporate counsels to cut corporate litigation costs, particularly those that are outsourced to outside counsel. Why ediscovery? High-profile cases are driving law firms, Fortune 500 and Global 2000 enterprises to consider the opportunities and challenges of ediscovery and adopt the requisite services and technologies. According to international law firm Fulbright & Jaworski, ediscovery is the top litigation-related burden for corporations with over $100 million in revenue. Further, companies with over $1 billion in sales are involved in an average of 556 open legal cases, and adding another 50 suits each year. As these companies face increased cost burdens, we anticipate a greater focus on the legal vertical by traditional software vendors looking for new areas of growth. 3

8 Industry Overview Figure 3 ediscovery and Litigation Costs Could Exceed $9 BB in 2008 Market Size ($Billions) A Growing Cost in a Growing Market $6B 200% Growth from 2004 $3B $3B 50% of Litigation Support $0.8B 275% Growth from Litigation Support Outsourced ediscovery Source: Protiviti Inc. As more documents and communications move from paper and voice to , the volume of electronic documents has quickly overwhelmed lawyers involved with litigation. According to the Taneja Group, 95% of all corporate documents are stored in electronic form and comprises nearly 80% of all communications. More importantly, the United States Supreme Court approved a number of amendments to the Federal Rules of Civil Procedure, including Rule 26f, which governs the manner in which civil actions and suits are conducted in federal court. In short, Rule 26f forces companies to reassess their electronically stored information and the ramifications it holds in a legal environment. Companies increasing reliance on , electronic databases, word processing documents and other computer files has vastly boosted the complexity and cost of complying with discovery requests. Companies can easily incur millions of dollars paying for the recovery and searching of backup computer tapes and other computer media in order to respond to an e-discovery request. A responding company can try to shift these costs onto the requesting party, but that has become more difficult to do. Further, the trend of court rulings over the past few years has been to require the producing party to pay the lion s share of the e-discovery costs. 4

9 Industry Overview Figure 4 Federal Rules of Civil Procedure, Rule 26f Rule 26f states that both parties must meet at the beginning of the dispute to decide which electronic information is available and how it will ultimately be produced. The rule was put into place, largely, to avoid the disputes and sanctions based on destruction of relevant electronic documents that have occurred in a number of highprofile cases. Importantly, the amendments to not only Rule 26, but also Rules 16, 33, 34, 37, 45 and Form 35 provide new guidance and rules for ediscovery and Electronically Stored Information (ESI). Not only must the relevant evidence be preserved, but also the processes of obtaining it must be defensible and the information must be reasonably accessible. Source: United States Government (http://www.uscourts.gov/rules/newrules4.html) Importantly, while Rule 26f does not have much of an effect on the settlement of cases, it creates a profound effect on the adoption of ediscovery technology and services. The adoption of ediscovery technology and services is expected to increase with the exponential increase in the volume and complexity of electronically stored information. In addition, the cost of ediscovery is typically not a deterrent to filing a lawsuit because each side of a lawsuit pushes the cost of their discovery requests onto opposing counsel. As with many processes in the legal system, the producing party in a lawsuit incurs the majority of ediscovery costs. It is highly likely that ediscovery services and technologies will be employed once a lawsuit is filed because most filed cases will make it to the discovery phase. The only cases that do not make it to the discovery phase are ones where the cost of discovery is greater than the settlement. 5

10 Industry Overview ediscovery Growth Rates According to Forrester Research, litigation costs and new laws are pushing this burgeoning industry, which is forecast to grow at a 28% annual pace, from $1.4 billion in 2006 to $5.1 billion in In fact, the market for offshore review alone, a service-based business, could exceed $5 billion, according to some estimates. Figure 5 ediscovery Growth Rates (US $mm) CAGR Collection technology revenue $18.4 $22.9 $28.7 $35.8 $44.8 $ % Tape cataloging and collection revenue $35.7 $44.6 $55.8 $69.7 $87.2 $ % Processing and production revenue $1,017.0 $1,175.2 $1,265.6 $1,594.7 $1,736.4 $1, % Hosted review application revenue $339.0 $542.4 $867.9 $1,301.8 $1,952.7 $2, % Installed review application revenue $35.7 $44.6 $67.0 $100.4 $130.6 $ % Total $1,445.8 $1,829.7 $2,285.0 $3,102.4 $3,951.7 $5, % $ in Millions $6,000 $5,000 $4,000 $3,000 $2,000 $1,000 $ Collection technology revenue Processing and production revenue Installed review application revenue Tape cataloging and collection revenue Hosted review application revenue Source: Forrester Research and FocalPoint Securities, LLC 6

11 Industry Overview Tangible ROI to the Fortune 500 Both Morgan Stanley and Merck were fined $1.4 billion and $253 million, respectively, as a result of direct and indirect errors in the ediscovery process. According to Cohasset Associates, the cost of ediscovery reaches $ million per year per $1 billion in revenue. Contrast this to Sarbanes-Oxley compliance costs, which are estimated at $1 million per year per $1 billion in revenue, according to AMR Research. In short, ediscovery costs up to four times more than SarbOx compliance. According to Gartner, companies that have not "adopted formal e-discovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services." And as the volume of information grows dramatically in size, this can quickly become costly to both sides, as data, in both paper and electronic forms, can reach terabytes in certain cases. Evidence, no pun intended, has pointed to ediscovery reducing the cost in certain areas of litigation by up to 75%. This is due to the use of enabling technology that decreases the number of hours billed by outside counsel. And while this may indicate this is not a good time to be a lawyer, remember that outside counsel is hired by the Fortune 500 and Global As these companies constantly look for ways to reduce expenses, the high cost of litigation is an easy target. Figure 6 Changing Paradigm in ediscovery Traditional Structure New Structure Corporation Law Firm Traditional ediscovery Vendor Source: FocalPoint Securities, LLC Traditional ediscovery Vendor Corporation Law Firm Lawyers: Traditional Luddite Customers of ediscovery Law firms comprise the traditional, old school customers of ediscovery products and services, and rightly so. Unfortunately, the legal profession, and the lawyers that comprise it, has never been known as an early adopter. Like physicians, they are reluctant to change what they consider to be best practices. For this reason, ediscovery has traditionally lagged the larger umbrella under which it falls, Enterprise Content Management (See ediscovery Vendors section later in this report). While we have already experienced one Internet boom and bust, and subsequent resurgence in technology, the legal vertical has never before been considered sexy. Until now! 7

12 Industry Overview The Luddites: A Historical Overview The Luddites were a social movement of English textile artisans in the early nineteenth century who protested often by destroying textile machines against the changes produced by the Industrial Revolution, which they felt threatened their livelihood. The Luddite movement, which began in 1811, was named after a mythical leader, Ned Ludd. For a short time the movement was so strong that it clashed in battles with the British Army. Measures taken by the government included a mass trial at York in 1813 that resulted in many death penalties and transportations (removal to a penal colony). Their principal objection was to the introduction of new wide-framed looms that could be operated by cheap, relatively unskilled labor, resulting in the loss of jobs for many textile workers. Source: Wikipedia In House Counsel: The Young Turks and New Adopters of ediscovery Many may laugh as we state this, but the Young Turks are the companies that comprise the Fortune 500. Yes, these slow, lumbering behemoths that sometimes have trouble getting out of their own path are rapidly adopting ediscovery technologies and services. Why? Plain and simple: Cost Savings. As corporations force outside counsel to adopt ediscovery solutions, they can rapidly decrease litigation costs. Now, this may not be in the best short-term interest of outside counsel, who will watch billing hours, and potentially rates, drop in the interim. But corporations are not there to make sure the ski house in Aspen is stocked with the best French wine. They are more concerned with having as many pennies as possible hit the bottom line EPS. And with spiraling litigation costs, ediscovery can have a tangibly positive effect on the margins. The Elephant in the Room The bigger question then remains, how much pushback from law firms will ediscovery companies have to fight? Interestingly, anecdotal evidence has pointed to the Luddites secretly using the machinery of ediscovery, and seeing the benefit in adopting these technologies. Not only does it provide a tangible ROI to the client, it enables the law firms to provide better service and to follow their fiduciary duty of acting in the best interest of the client. More importantly, though, if their client requests it, they will adopt it. Further, we anticipate that outside counsel that has spent the time to learn and implement an ediscovery solution is more likely to be chosen in the future. Why? Because Fortune 500 companies do not want to pay the hourly rate necessary for the outside counsel to learn a new technology or platform. Therefore, those multi-national law firms that adopt an ediscovery platform are more likely to win the mandate as outside counsel for large corporations. As the growth of ediscovery solutions increases within corporations, we anticipate a greater number of traditional software vendors placing a greater emphasis on the legal vertical. We believe the legal vertical represents a solid area of growth in a multi-billion dollar industry that until the last few years, failed to hit the major vendors radar screens. However, with the rapid adoption within the Fortune 500, many major software vendors have placed an increased focus on targeting in-house counsel. 8

13 Industry Overview Technology Shift to Integrated Platform In the past, lawyers exchanged discoverable documents in paper format, undergoing the labor intensive process of identifying, reviewing and redacting documents before handing them over to opposing counsel. Within the last five years, integrated ediscovery solutions have developed along with the adoption of ediscovery technology and services. Figure 7 Technology and Services Shift from Point Product to Platform In-House Build Point Solutions Integrated Solution Late 1990 s 2000 CONVERGENCE Mid-2000 s Source: FocalPoint Securities, LLC As with most software and service solutions, the ediscovery industry began as a piecemeal effort reacting to isolated challenges, as opposed to creating an all encompassing lower cost solution. Before providers began offering an end-to-end platform in the legal vertical, the industry was comprised of companies from copy shop service bureaus to consulting firms to technology vendors. The rapid advance of the industry has caused many single product vendors to expand their product line by integrating technologies such as coding, culling, processing and review. Figure 7, below, organized by type of service, illustrates how different product lines can fit within an overall ediscovery content management platform. Figure 8 The ediscovery Platform: Key Areas of Focus Search OCR Printing/ Loading Meta Data & Text Extraction Hosting Collaboration Document Conversion Culling Coding Processing / Coding Storage Native File Review Content Management/ Review TIFF & PDF Production ediscovery Content Management Platform Source: FocalPoint Securities, LLC 9

14 ediscovery Process

15 ediscovery Process The entire end-to-end ediscovery process can be separated into four discrete processes: (1) data collection, (2) data preparation, (3) data review, and (4) data production. Figure 9 Data Collection through Data Production Data Collection Data Preparation Data Review Data Production Retrieve data from the whole universe of possible locations The universe includes, but is not limited to: physical content, desktop PCs, laptops, network servers, enterprise applications, content repositories, archives, backup tapes, and handheld devices Restore, if necessary, media form backup tapes and archives or legacy systems Filter data based on prenegotiated items like metadata or keywords De duplicate data to eliminate redundancies Port data to common, searchable repository Organize data identify and categorize Display data in a common format Allow for native review of documents as necessary Support collaborative document management for legal team Conduct data relevancy analysis Output necessary forms of data PDF, TIFF, paper Source: Forrester Research Data Collection Processing and Coding Coding (Paper Documents) Data collection includes processing, coding, and extracting metadata from electronic files. The data collection process starts with reviewing the request to produce and then developing a processing strategy specific to the case. Next, the legal team and ediscovery service providers identify the potential sources of data relevant to the specific case and the best way to harvest and secure that data. Once a strategy has been developed, the legal team and ediscovery services providers start processing the data. During discovery, the processing of information, electronic or paper, for a legal case is first entered into a workflow strategy in order to prepare the documents for data review. Processing includes the formatting and conversion of documents into a format that normalizes the data so it can be appropriately indexed during coding. Prior to the processing of electronic documents, it is likely that data forensics, including the searching of drives and discs, may have already occurred. In the discovery process, paper documents need to be converted into electronic format. The papers are scanned, typically by a service bureau, and then coded and unitized, which includes keeping documents electronically arranged as opposed to using staples, rubber bands, etc. When documents are scanned they are read by Optical Character Recognition ( OCR ) technologies to aid in data normalization of the document. 10

16 ediscovery Process Meta data and Text Extraction (Electronic Documents) Meta data, also known as embedded data or data about data, is a critical component of electronically stored documents. Lawyers can use it to bolster their own cases, streamline document review, and get the complete story of their adversaries documents. Software programs embed various categories of meta data in the documents users create. Meta data describes how, when and by whom an electronic document was created, modified, and transmitted. This administrative information assists data retrieval and reviews a document s history. Figure 10 Meta Data Source: LexisNexis Applied Discovery Meta data represents a crucial difference between electronic and printed documents. All the information in a paper document is displayed on its face. Not so with electronic documents. Electronic documents carry their history with them. Paper shows what a document said or looked like, where meta data tells where the document went and what it did. In addition, meta data allows electronic searching of various fields so lawyers can quickly locate keywords and filter searches by other criteria, including a document s source, the name of witness, a time period, or a subject line. These search capacities make it possible for reviewing lawyers to quickly sort millions of pages, eliminating superfluous documents and filtering an otherwise unmanageable volume of documents into a workable set for review and production. Data Preparation Document Management Culling Data preparation includes document management, culling, and hosting. These processes are primarily performed in order to organize and further minimize a data set into a smaller more accessible and manageable data set prior to review. Once the documents have been processed into electronic format, the documents are then placed onto a common repository, which is typically hosted. Document management technologies, including Enterprise Content Management, then manage the creation and flow of documents to provide the user with better access to the information. Document management systems can automatically archive reports from the enterprise applications. In addition, document management also plays a large part in review, as counsel wants to make sure each document is accurately reviewed. Culling decreases the available data set in order to reduce the number of documents that must be reviewed, which is typically the most expensive cost of litigation. Culling the data, which includes using queries or search, date ranges and keywords, assists the legal team in finding the most relevant documents to a case and flagging them for 11

17 ediscovery Process review, response and/or discovery. With electronic data, many documents may be identical or near-identical. To decrease this overflow of information, firms may employ de-duplication technologies, reducing redundant copies of the same datasets, typically found in s. Growth in the processing and coding market is affected by both the size of the data as well as the price per gigabyte processed. Growth in the number of gigabytes processed is estimated between 40-60% per year. Hosting Data Review We believe this area comprises the most competition, as many copy shops and service bureaus have entered this market. This trend may result in decreased margins for culling services in the near-term or until the smaller and single product line competitors can no longer compete in the smaller margin environment. We believe that those companies who provide an end-to-end solution are well positioned to compete in this environment by offsetting the decrease in culling margins with increases in one or all of their other product offerings. However, we anticipate the overall competition to decrease in the long-term as lower margins force numerous copy shop and service bureau competitors from the marketplace. We further expect the future decrease in competition to allow culling margins to rise once again when the number of competitors in the space stabilizes. Once the data set has been coded and culled it is then stored in a common, searchable format in a separate repository. The storage of the data set in this repository is called hosting. Some vendors in the ediscovery marketplace focus solely on providing hosting as their only product offering. Once hosted, the data can be made available for review to either one or both sides in the case. Lawyers construct their legal strategy during the review phase of litigation, reviewing and analyzing all of the available documents pertinent to the case. Hence, it becomes the most costly area of litigation. Estimates put the cost of review at 75-80% of total litigation cost. While the other technologies and services mentioned can provide a significant ROI to corporations and law firms, review offers the highest growth potential in the world of ediscovery. Knowledgeable workers focused on billable hours form the bulk of the legal profession and review can take a significant toll on their time, even after the data is culled and de-duplicated. Figure 11 Review: Collaboration and Case Management Source: iconect White Paper Effective Collaboration and Case Management The Key to Your Success 12

18 ediscovery Process In general, the billable hour approach is antithetical to good supply chain management practices. The typical billable hour approach rewards a lawyer or law firm for inefficiency and provides few, if any, incentives to implement and improve upon efficient processes. Moreover, vendor selection in litigation generally is conducted on a case-by-case basis, primarily relying on per-unit cost with little though towards long-term integration. What a client usually buys in this scenario is a collection of individuals and organizations that, no matter how talented, should not be mistaken for an integrated team sharing the client s interest in greater efficiencies and reduced costs. Figure 12 Review: Highest Cost of Litigation and Highest Growth Potential in ediscovery Largest Perceived Cost Largest Addressable Cost Data Collection Data Prep/ Processing REVIEW Production Source: Forrester Research Growth rates for review applications are anticipated to be the fastest growing segment of ediscovery, with expectations of CAGRs of 50-60% over the next four years. Large corporations with significant litigation costs are driving this trend, as in-house counsel is forcing law firms to find ways to decrease their costs. Two trends have taken hold in document review within the last few years. First, the review tools are most closely correlated with Enterprise Content Management vendors solutions, providing a collaborative arena to host and share documents among lawyers. Providing these content management tools has reduced the cost to law firms in the United States. However, we have noticed a more important trend leading to offshore review, which can reduce the cost of review by upward of 80%, without a decrease in quality or skill. Native File Review The countries most likely to see to a benefit from offshore review work are both India and the Philippines. India will most likely benefit because the country has a large number of law students graduating annually and it has a large English-speaking workforce. In addition, the Philippines will most likely benefit because its Constitution was largely based on the U.S. Constitution. Therefore, the laws of the Philippines typically mirror those of the U.S. Further, like India, English-language skills are high and while the population is obviously smaller, education levels in the Philippines are extremely high. In fact, two universities in the Philippines have reciprocity with the US, wherein the lawyers educated at those schools can sit for the bar in specific states in the U.S. At times, documents must be reviewed in their native format, such as an Excel file. For instance, when looking at a TIFF d image of an Excel file, counsel cannot see the underlying formulas. A new trend is emerging with native files, which includes both 13

19 ediscovery Process making the documents available for review as well as searching the native files. In the Excel file example, this would include searching the underlying formulas. Searching through underlying formulas in native files is still a legal gray area, but many times the native files are just TIFF d and sent to opposing counsel. Further, by TIFFing the files, counsel also has the ability to redact confidential or non-pertinent information. And as an irritant, by TIFFing files, opposing counsel cannot view the formulas or other information that may speed its review process. Data Production Once review is complete, discoverable documents must be produced for opposing counsel or the regulatory agency. Documents are typically produced in either TIFF or PDF format, and can be electronically redacted prior to production. Production can be done either electronically or with paper documents, although the trend is dramatically moving toward electronic production on CDs or FTP sites. 14

20 Competitive Landscape

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