In the same way that Costco and Big Lots have had Christmas stuff out since before Halloween, it’s not even Thanksgiving yet and there’s already at least three predictions of 2012 e-Discovery trends out there. Lord help us.
(One could conjecture that it’s because e-Discovery comes from the legal profession, and it’s their job to do planning, and come out with surveys, but as it happens, the storage industry is starting to come out with predictions, too. It’s just that there aren’t three of them to make a trend yet.)
Daegis, an e-Discovery vendor, came out with its predictions on Wednesday:
- Litigants will Focus On Leveraging Knowledge Gained In Prior Reviews
- Out with the Old Pricing Model, In with the New
- Cloud and Social Media Make Privacy, Security Issues Foggy
- The Human Element Returns to eDiscovery
- Judges, Regulators Increase Focus on eDiscovery Rules
Meanwhile, the nonprofit blog Metropolitan Corporate Counsel came out with its five predictions on Thursday.
- The Cloud is here to stay
- Big data and business intelligence meet eDiscovery
- New technology drives real changes in how data is identified, collected, processed, reviewed, analyzed and produced
- Data collection continues to become more complex
- Continued maturation of corporate e-Discovery processes
- Technology Assisted Review (TAR) Gains Speed
- The Custodian-Based Collection Model Comes Under Stress
- The FRCP Amendment Debate Will Rage On – Unfortunately Without Much Near Term Progress
- Data Hoarding Increasingly Comes Under Pressure
- Information Governance Becomes a Viable Reality
- Backup Tapes Will Be Increasingly Seen as a Liability
- International e-Discovery/e-Disclosure Processes Will Continue to Mature
- Email Becomes “So 2009” – As Social Media Gains Traction
- Cost Shifting Will Become More Prevalent – Impacting the “American Rule”
- Risk Assessment Becomes a Critical Component of e-Discovery
Some of these are kind of no-brainers and there’s a fair amount of overlap between the three sets. The cloud and social media are going to continue making e-Discovery more complex. E-Discovery processes continue to mature, which means judges will increasingly rely on rules and new ones are likely to be created. Things keep getting more expensive. And the more data you have, the more likely it is that something in there is going to come back and bite you.
See how easy it is? I just made four predictions of my own and I wasn’t even trying.
On the other hand, we’ve got one prediction saying e-Discovery is going to become more human, and another saying there’s going to be more machine-aided review as the custodian model comes under more stress. How to reconcile that, I don’t know.
A group of major U.S. vendors such as Google, Microsoft, Citigroup, IBM, and GE, working under the aegis of the National Foreign Trade Council, is urging the United States to fight for trade rules that protect the free flow of information over the Internet, and against “digital protectionism.”
Such actions include requirements that companies locate data centers in a country to provide services there, as well as blocking access to services such as Facebook, Twitter, WordPress, and YouTube, according to the Reuters writeup of the group’s recommendations, which they issued in a report called “Promoting Cross‐Border Data Flows: Priorities for the Business Community.”
Ironically, this is happening at the same time that European countries — which have much higher levels of data privacy than the U.S. — are issuing their own reports talking about the risks of “life logging” systems such as Facebook, and generally asking why everybody can’t be more like Europe in terms of personal data privacy.
Similarly, as we discussed a few months ago, a number of non-U.S. countries are concerned about the possibility of their data virtually “entering” the U.S., consequently becoming subject to laws that would enable the U.S. government to seize the data — perhaps without the parent company even knowing about it.
And in the same way the U.S. thinks the Europeans are being awfully stuffy about laws protecting things like data privacy, there’s likely to be a number of countries that think the U.S. is being awfully stuffy about laws protecting things like copyright, patents, and ownership, yet oddly there don’t seem to be too many business groups suggesting that those laws be relaxed.
Numerous other worldwide business organizations are also weighing in on how countries should make it easier for them to conduct business over the Internet. The European Organization for Economic Cooperation and Development has issued its own report calling for European governments to promote cross-border data flows. And a new law that was supposed to protect Europeans from cookies is thought to be so strict that its implementation is being put off for a year while they try to figure out a better way to do it.
Just how exactly countries are supposed to make the Internet more open to business, while still protecting business ownership of content, and hopefully not throwing consumer privacy under the bus in the process, is going to be an interesting juggling act.
I usually really like material from Om Malik and his staff at GigaOm, but he posted something recently that had me shaking my head, When will broadband finally kill local storage?
Today, there is very little need for me to have any in-home storage. My documents live in Dropbox and Google Office. My photos get backed up to iCloud. Radio comes from Pandora. On-demand music comes from Spotify. Movies come from Netflix. TV comes from Hulu. The home phone is Skype. And for everything else, there’s Amazon.
Well, that’s very nice, and I’m glad it’s working for him. But let’s talk about why Malik is a very, very special case.
What happens when he loses his Internet feed or there’s a service outage? Increasingly, we’ve been seeing these this year, even with companies as big as Amazon.
What happens when he travels? Sure, he doesn’t have to carry a hard disk, but what if he can’t get Internet access? How does he get access to his documents, his applications, or even his music or movies?
What about security? Isn’t he worried about sending all that stuff back and forth and it being available on the cloud? To what degree can he depend on his vendors to protect his data?
What about privacy? Not to suggest that Malik is doing anything nefarious. But increasingly, governments are watching what people are doing, and bills currently under discussion would even give corporations that power — if not against individuals like Malik himself, against his providers.
What if one of his providers goes out of business? Granted, he seems to be working with pretty big vendors right now, but if Netflix goes belly-up, what does he do for movies?
Does everyone really want to juggle all those providers? True, he doesn’t have a single point of failure — but instead he has multiple points of failure. How does he keep up with all those vendors, the updates, the renewal fees, and so on? Granted, my big brick (a 2-terabyte NAS) could die — but it’s all in my hands and in my control.
What about cost? As discussed a few months ago, storage is actually getting cheaper faster than bandwidth. (Of course, that was before the flooding in Thailand — and boy, am I glad I already have my 2TB brick.)
And finally, the biggest issue of all — as Malik casually refers to it in the story, “My 100 Mbps broadband connection without any caps.” He goes on to say, “Now I understand that today not everyone in the U.S. can get a 100 Mbps connection to their home, and even when they can, it’s an expensive proposition.”
Also, I disagree with his handwaving contention that surely everyone will be able to get such a connection in a few years. Check out the most recent Akamai Technologies State of the Internet report, as written up in the Huffington Post.
The United States was found to be in 12th place globally, with an average connection speed of 5.8 Mbps — much better than the global average of 2.6 MBps, but less than half as fast as the South Korea which boasts an average speed of 13.8 MBps. One possible reason that the U.S. has relatively slow internet as compared with other developed nations is because the governments in some countries, such as Japan, require broadband companies to use the newest internet technology to guarantee the best service. The U.S., by contrast, “generally relie[s] on the marketplace to determine the cost and quality of broadband,” MacWorld reports.”
And how realistic is it, even if the average person could get a pipe of 100 mbps, that there won’t be caps? If anything, we’ve been seeing more instances recently of users running into caps on their data and even getting cut off from the Internet altogether.
In short, it sounds like a great idea, but it’s unrealistic for the near future — and perhaps for the far future as well.
The storage industry is getting hit again. Just a few months after the Japan earthquake affected flash storage manufacturing, the devastating Thai floods show signs of affecting hard disk drive manufacturing down the road.
Of course, the effect on the industry is minor compared to the effect on the Thai people themselves, where so far nearly 400 have died in what is said to be the worst flooding in 50 years. But as the worst of the flooding appears to be over, the country is beginning to examine the economic effects — which could end up being nearly as damaging as the economic unpleasantness a few years back, according to component research firm iSuppli:
“As a result of the flooding, the HDD industry in the fourth quarter will suffer its worst downturn in three years. HDD shipments in the fourth quarter will decline to 125 million units, down 27.7 percent from 173 million in the third quarter, as presented in the figure attached. The drop is the largest sequential decrease on a percentage basis since the fourth quarter of 2008 when shipments fell 21.2 percent during the worst point of the last electronics downturn. IHS estimates that 30 percent of HDD production in the fourth quarter this year will be lost because of the disaster. This will result in a significant shortage of HDDs. Because of the shortage, HDD inventories will be depleted and will cause average HDD pricing to rise by 10 percent in the fourth quarter compared to the third.”
Thailand is the world’s second-largest provider of hard disk drives, after China, and has manufacturing facilities for Western Digital and Toshiba, iSuppli goes on to say. And while Seagate has an operating plant in the area, it may face a shortage of parts, according to Reuters.
In fact, the effects are likely to be so devastating that they will change Western Digital’s status in disk drive manufacturing, iSuppli says. “Western Digital is likely to lose its status as the world’s largest shipper of HDDs, with its rank expected to fall two positions to third in the fourth quarter, down from first place in the third quarter. Toshiba’s rank could fall to fourth place, down from fifth.”
Slowdowns are particularly likely to occur in notebook PCs in the first quarter of next year, iSuppli said, because some components are stockpiled and the market will likely adjust to use different sources by the second quarter. Several notebook providers, including Compai, said their quarterly earnings might be lower as a result of lower shipments due to the lack of disk drives. (Though, if the Japanese flash storage manufacturers recover, perhaps this will push a faster-than-expected switch to flash storage in notebooks?)
Part of the blame goes to increasingly tight “just in time” manufacturing supply chains, where parts are shipped essentially as they’re needed rather than being warehoused, Reuters noted.
Iain Bowles of ProBrand had even more dire predictions, of price increases of up to 25 percent. In fact, shortages from the Thai natural disaster could be worse than the Japan earthquake because stockpiles are smaller, he said. Moreover, he believes it could extend into the second quarter of next year as well, and that the recovery is likely to be slower than in Japan.
In what some are calling “schizophonia,” VMware — famous for virtualizing servers — is now moving to virtualizing phones, making agreements with mobile providers such as Verizon and Telefonica to implement the mobile virtualization software it announced earlier this summer.
What would be the advantage of such a system? As opposed to virtualizing servers — which is typically done to make the server denser and require less room, power, and cooling — virtualizing a phone means that a person could have a single phone both for work and for personal use, without the employer being as concerned about security breaches and without the employee having to juggle two phones.
For now, the VMware Horizon software runs only on Android phones; oddly, Microsoft — which is adding its Hyper-V hypervisor to Windows 8 — doesn’t appear to have announced virtualization for its Windows phones yet.
This isn’t the first such announcement — VMware made an agreement with LG for its phones in December, as well as a similar agreement with Samsung, and there’s talk about smartphones powered by chips offering virtualization ever since the chips came out– but now virtualization can be a part of the mobile service as well as the phone itself.
VMware is also reportedly working with Google to put virtualization into the Android operating system itself. Such a development could make it much more likely that Android phones would be more desirable than the iPhone — which doesn’t give third-party developers the same level of access that Android phones have — though VMware has made it clear that it’s willing to work with Apple as well.
“One tap of the screen, for example, effectively changes the entire look and feel of a smartphone with virtualization,” writes Kevin Tofel of GigaOM. “When in “enterprise mode”, the phone signs into an employee account and only shows workplace apps, contacts and data. Another tap can pause the virtual machine for work and revert back to the native, personal handset.”
Long term, this could go even further, writes Timothy Prickett Morgan of the Register UK.
“[A]t some point, it is reasonable to assume there will be a phone with as many numbers and personalities as you have members of the family, and people will grab a phone off the sideboard table where you pile up the junk mail just like you pick an umbrella out of the stand right next to the table when it is raining. The first person to leave every morning will get the best phone, but they will be interchangeable.”
We’ve all seen it happen. A couple gets together and things seem great for a while. Then they start pulling apart. They might even start seeing other people. By the time the split finally comes, it’s not only anticlimactic but almost a relief.
That’s probably how it feels for EMC now that Dell has finally ended a ten-year relationship (two years early) where Dell sold EMC storage hardware, as Dell increasingly became a storage player in its own right.
“We’ve grown apart,” Dell said. “I needed to feel like I could be my own person.”
Well, okay, not really. “Over the past few years, Dell has grown to become a robust storage technology provider with differentiated capabilities across several product families, including Compellent, EqualLogic, PowerVault, and Dell / EMC,” is the way the company actually put it, on what used to be the Dell/EMC product page.
Dell bought EqualLogic in 2007, and Compellent in 2010 — spending a total of $2 billion on storage acquisitions — after starting its partnership with EMC in 2001. Other acquisitions included Exanet for scale-out NAS technology and Ocarina for data compression and optimization, as well as making its own DX6000 object storage hardware, partnering with Caringo for the software. The company also reportedly said that its own storage properties provide almost 80 percent of its storage revenues and 90 percent of its profits in the second quarter of this year.
Dell also said it planned to spend an additional $1 billion this fiscal year to strengthen its storage offerings.
Dell promised it would continue to be a good parent for the children — that is, that it would continue to support the EMC hardware. However, when people want to upgrade that hardware, they will be offered Dell storage products.
EMC asked that people respect its privacy during this difficult time. Well, not really. Actually, it had no comment.
Another day, another e-discovery survey. Enterprise Strategy Group has released its report, e-Discovery Market Trends: A View from the Legal Department.
The results aren’t so very different from Symantec’s survey last month — though, frankly, the ESG survey isn’t as statistically rigorous; it surveyed only 48 general counsel.
The following are some of the conclusions ESG came up with.
- E-discovery pain is most acute for high-revenue, serial-litigant enterprise companies, particularly by large organizations with revenue exceeding US$1B, serial litigation demands, and high legal expenses.
- Corporate counsel leads internal e-discovery decision making, but process management is interdisciplinary. Internally, corporate counsel bears the responsibility for litigation response, even as other players are involved in execution. Externally, corporate counsel is wielding growing influence with law firms in choosing third-party providers.
- Most organizations are not tracking e-discovery spending, but organizations with at least US$1B in annual revenue were more than three times as likely as their counterparts earning less than US$1B annually to track expenses related to e-discovery activities including document review and technology investments.
- They also don’t track the accuracy and efficiency of document review. Less than one-third of respondents have ever tracked the productivity or efficiency of document review. Half of respondents with less than US$1B in annual revenue don’t monitor these processes — with internal or external resources – and have no plans to do so.
- Enterprise litigants are exerting influence (and pricing pressure) on law firms. Corporate counsel increasingly suggest specific tools and technical methods to their law firms. However, they are even more likely to simply request more cost-driven measures such as itemization or alternative fee arrangements.
- Corporate information governance and litigation readiness are a priority, but not yet a widespread reality. Top internal priorities include defensible deletion and data mapping of enterprise ESI inventory for better litigation preparedness.
- Enterprises use diverse technologies for litigation response. E-mail archives and content management systems top current usage for preservation and collection. Future purchasing plans are dominated by content management, e-discovery platforms, and enterprise search.
- Challenges to collection and preservation persist, including collecting data from endpoint devices, over-collection, and supporting staffing requirements and short timelines for conducting litigation response. Diverse data formats and locations present a moving target for e-discovery as newer data sources like SharePoint or the cloud emerge and older data is rendered inaccessible in legacy applications or backups.
- Corporate litigants are complying with court standards for supervising collections and notifying custodians of legal hold, though these are largely still through manual methods. They are less vigilant in documenting chain of custody or proving they’ve physically prevented spoliation in their systems.
IBM announced this week that it had been selected for a 10-year $240 million operations and maintenance contract with the National Archives and Records Administration, but there’s a lot more to the story than that. IBM is actually taking over from Lockheed Martin after several years of a project that’s fallen behind schedule and over budget.
The project is to manage the Electronic Records Archive, and is intended to ensure the transparency of government documents, allowing broader citizen access to public records. The project was started in 2001 to preserve and provide both internal and external electronic access to the records. But it had its problems, noted Elizabeth Montalbano of Information Week:
NARA began working on the digital archive in 2001 and in 2005 awarded Lockheed Martin a $317 million contract to develop it. However, the project has not been without its troubles along the way. Earlier this year a report by the Government Accountability Office found that the project likely will cost $1.2 billion to $1.4 billion, exceeding its estimated cost of $995 million by 21% to 41%. The report cited poor project management as the reason for the soaring costs.”
In fact, due to its inclusion on in the GAO report, NARA cut some of the functionality from the project in February and decided to do no new development past September, which is what enabled IBM to get an O&M contract after the contract with Lockheed ended on September 30, the end of the federal fiscal year — about a year earlier than planned. Originally, NARA had had a sixth option year on the Lockheed Martin deal for development, and a seventh year for operations and maintenance, FederalNewsRadio.com reported.
The project was officially launched in April, particularly with what were called three “pathfinder” agencies, so-called because of the amount of requests those agencies received: Justice, Health & Human Services, and State. 27 other agencies were supposed to start bringing their records online by the end of November, while independent agencies were supposed to start bringing their records online in July, FederalNewsRadio.com noted.
But IBM’s role will be more than just maintenance and operations. An agency spokesman said that IBM would be adding functionality to the system through a series of work orders and other enhancements — in particular, improving the search system, the spokesman said.
One of the most interesting aspects about the announcement this week that EMC CEO Joe Tucci was planning to step down by the end of next year was how blase’ everyone was about it. He wasn’t fired. He isn’t dying (so far as we know, existential aren’t-we-all-dying questions aside). He’s not part of a parade of CEOs who have come and gone. It’s just, hey, next year I’ll be 65, time to go.
Part of this, of course, is in contrast to other CEO departures this year where people were fired, dying, part of a parade, and so on. Compared to, say, HP, Apple, or HP again, respectively, the notion of a guy who become CEO ten years ago, did his job, and is leaving at a normal retirement age seems almost quaint.
Part of this, too, is the company culture. EMC may be one of the biggest storage companies out there, but it’s not a rock star consumer-driven company the way Apple is. It’s normal there for the succession to be a relatively gentlemanly affair. Tucci did his time before he became CEO, serving under the previous CEO as executive chair for two years, and will serve as executive chair for the next EMC CEO, whomever he may be (nobody’s suggesting that the next CEO of EMC might be female).
Part of it is also the lack of drama around the succession. Yes, it’s true, nobody was named as the next CEO yet, and of course there’s always the potential of a bunch of little storage Borgias backstabbing and poisoning each other. But EMC is the sort of company where people use the term “deep bench” a lot. Most articles around Tucci’s announcement (which he made to the Wall Street Journal, naturally) named at least four potential successors, any one of whom would be qualified to run the company. Nobody’s wringing their hands suggesting that EMC will have to go outside the company to find someone qualified.
Part of it is that even with his more than one-year notice, this isn’t a surprise; Tucci started talking about succession a year ago — with the same four guys as potential successors. (And nobody’s trying to out any of them, as people are doing with Apple’s Tim Cook.)
The Motley Fool is trying to beat the drum for a shareholder revolt against the fact that the next EMC CEO will be continue to be both CEO and chairman, but they’re pretty alone in that.
At this point, about all we can do is wait to see who gets appointed the next EMC CEO — and there’s no timetable for that yet.
The Electronic Frontier Foundation has announced that two vendors, Apple and Dropbox, have signed a pledge to help support its Digital Due Process initiative, which calls for a rewrite of the Electronic Communications Privacy Act to better protect user data.
The initiative has more than 50 members, including Amazon, AT&T, Facebook, Google, Microsoft, Twitter, and Yahoo!, which were called out in April as being major computer vendors that should support the proposal. Steps included in the proposal include telling users about data demands, being transparent about government requests, fighting for user privacy in the courts, and fighting for user privacy in Congress. Companies received from one to four stars (including partial stars) depending on how well they are implementing each of these policies.
Dropbox was a particularly interesting addition, because the company has been criticized about its policies regarding protecting user data in its cloud storage service.
Other vendors pf the 13 that the EFF called out in April that have not yet responded include Comcast, Myspace, Skype (since purchased by Microsoft, which is a member), and Verizon.
Organizations such as the American Civil Liberties Union and the Center for Democracy & Technology are also members.