“U.S. Magistrate Judge Paul S. Grewal in San Jose, Calif., ordered Google within two days to disclose what terms it’s using to find documents Apple has requested in pretrial information sharing, and to tell Apple which Google employees those documents came from,” writes Bloomberg Business Week. “Google had argued the collection of information would be too burdensome.”

Hilarity ensued.

“The court cannot help but note the irony that Google, a pioneer in searching the Internet, is arguing that it would be unduly burdened by producing a list of how it searched its own files,”  Grewal wrote in a footnote to his order.

Apple took the step of asking the judge to intervene because it believed the search terms Google was using in response to Apple’s document production requests weren’t inclusive enough, and so left things out.

“Apple believes Google purposely uses suboptimal search terms,” writes the FossPatents blog. “For example, Apple claims to know that Google uses a different term internally for what Apple calls ‘slide to unlock.’ As a result, searches for ‘slide to unlock’ wouldn’t deliver too many documents in which Google employees discussed this patented technology. ”

(Why is Google involved in the Samsung case in the first place? Because all of the products said to be infringing run the Android operating system that Google developed.)

Apple was also criticized by the judge for not being more cooperative, such as by telling Google what documents it thought were missing. As you may recall, the 2006 rules for electronic discovery require the different sides in a legal suit to work together and agree on how they will search for documents.

There is, of course, more to the story.

“Warren, a lawyer for Google who is also representing Samsung, explained to the judge that turning over the requested information Apple is seeking could lead to ‘future discovery that we don’t think they’re entitled to’ and give the company ‘ideas about how to proceed that they wouldn’t have had,’” writes BGR.

Good story though.

The report, which is freely downloadable, surveyed 512 information professionals.

Legal holds and E-discovery were the fourth most likely element to be included in an information governance policy, with almost 50% saying it was included (plus almost 20% who included it in an “all of the below” choice).

“Only 18% have a sufficiently comprehensive policy that covers all of these areas,” AIIM warns. “Taking these into account, over 80% in total have included information retention and access restrictions in their policy. While 75% include data protection of personally identifiable information, this is likely to be a legal requirement for almost any organization that keeps personnel records of employees. Only 57% are dealing with “information in motion” i.e. laptops, USB sticks, etc. Only 49% have a policy on mobile access and only 27% are covering cloud-based file shares.”

In terms of email storage, about 55% of respondents said that employees were expected to manually declare or save important email messages as records, while more than 30% said they expected there were multiple copies of messages on various systems,

That said, while the content may be electronic, E-discovery mechanisms are still manual, the survey found, with 53% of respondents saying they are still reliant on manual processes for E-discovery searches across file shares, email and physical records. However, only about 5% either automatically classified important email messages as records or used outsourcing or the cloud for email archiving.

That’s even more so for social media interactions. Almost 35% said they believed there are social interactions that could be important but that they were not currently recording them; about 22% said they didn’t do social; and about 18% said they weren’t looking at the issue. 34% reported that they have used their social business records for purposes such as staff disciplinary action, staff dismissal, or resolving a customer/citizen dispute or complaint.

For E-discovery, more than 60% of respondents said they needed to deal with re-trial request by attorneys (eg, US –style), about 25% for judge-directed disclosure (eg, UK-style), about 15% for no defined disclosure (civil law, eg, France, Germany), about 30% for competition/anti-trust, fraud, or trading investigation, and more than 20% said “All of the above.”

“We asked if respondents feel that their organization has a consistent and effective E-discovery mechanism across all of their physical and electronic records,” AIIM writes. “Overall, only 9% have achieved this, but a further 29% are optimistic that they are getting there. Another 24% have plans, but 20% consider the task to be simply ‘too difficult.’”

However, in what may be some incentive, the survey also asked respondents about the consequences of their lack of an E-discovery system. In the last three years, 14% of organizations have suffered from embarrassing data loss, 21% have disciplined or dismissed employees for non-compliance with governance policies, 31% have had issues with their regulators, and 18% have been questioned in court about their records, AIIM finds. “As might be expected, larger organizations score nearly double in many of these areas with, for example, 28% suffering from embarrassing data loss — an arguably bigger disaster for a large organization or well-known brand than a small one — and nearly half having issues with auditors or regulators,” AIIM writes.

As an example, analyst firm IDC included the Austin, Texas-based StoredIQ in its IDC MarketScape: Worldwide Standalone Early Case Assessment Applications 2011 Vendor Analysis, but Gartner hasn’t included it in either of its e-discovery Magic Quadrants — from which a number of larger vendors have plucked other acquisitions. (However, Gartner did name StoredIQ as a “Cool Vendor” in April of this year.”)

Instead, IBM is working on creating a family of “information lifecycle management” applications, which are kinda both — big data, because it covers all an organization’s data, but also e-discovery, because part of the reason for having such applications is for litigation support, both for identifying data needed in legal situations but also to help reduce, in a legally justifiable way, the amount of such data in the first place.

StoredIQ’s advantage is that it manages the data in situ rather than by moving it to a secondary location, which saves the cost of the secondary storage, noted Zacks Equity Research, adding that the company had received $11.4 million in funding in August and had 120 clients — though it warns that IBM faces competition from vendors such as EMC, Oracle, and SAP.

The company has also been working to make its product, which includes software and an appliance, easy enough for even legal professionals to use, rather than requiring IT people to operate. In addition, it has partnered with a wide variety of other vendors over the years, including NetApp, EMC, and NewsGator, and supported a number of formats, including SharePoint and Office 365.

As big data has become more prevalent, companies are interested in saving their data in hopes of being able to analyze it at some point and improve their businesses. But what it calls data hoarding is a problem for two reasons, notes Law Technology News.

First, there’s the cost. Though the price of storage itself has been dropping, it still costs something, plus there’s the cost of managing it, backing it up, and so on — which could amount to $5,000 per terabyte, Law Technology News said.

Second, there’s the legal cost. Should an organization be sued, it not only needs to provide all the pertinent information that the other side asks for, but it has to find it in the first place — and the more data a company has, the more expensive that search is. Also, companies have to balance the value of the data for analysis with what it might cost them should it reveal something in a lawsuit. This cost is on the order of $15,000 per gigabyte, Law Technology News said.

In fact, legal organizations have been advising companies to look for opportunities to delete data, pointing out how much money they can save. However, they have to do this in a regular fashion, because once a lawsuit is filed, a “legal hold” is put on the data and it can’t be deleted, or a company is subject to large fines.

The acquisition becomes part of IBM’s Information Lifecycle Governance suite, headed by Deidre Paknad, vice president of Information Lifecycle Governance. Paknad had been CEO of PSS Systems Inc. in Mountain View, Calif., a pioneer in the e-discovery space, which itself was acquired by IBM in 2010. The group also includes Vivisimo, which IBM acquired earlier this year.

The acquisition was not a surprise; IBM had partnered with StoredIQ for two years. As is typical for IBM, it did not reveal the cost of the acquisition. It is expected to be finalized in the first calendar quarter of 2013.

“Dropbox will be acquired by a major enterprise infrastructure player,” the company wrote. “In another sign that “consumerization” doesn’t mean mimicking consumer technologies in the enterprise but actually acquiring and/or integrating with widely adopted consumer offerings in the enterprise, IDC predicts that Dropbox will be acquired by a major enterprise infrastructure player in 2013. This will certainly be an expensive acquisition, but it will be one that brings an enormous number of consumers (many of whom are also employees), and a growing number of ecosystem partners, along with Dropbox’s technology.”

“Expensive” is putting it mildly; a $250 Series B funding round last fall gave the company a $4 billion valuation, which is expected to be even higher now (though GigaOm still thinks the market is small). Only a major enterprise infrastructure player would be able to afford it.

Part of what makes this prediction interesting is that a Dropbox IPO has been rumored — and highly anticipated — since last year. Dropbox founder and CEO Drew Houston had reportedly received a nine-figure acquisition offer from Apple early on, Forbes reported last year, but  turned it down because he wanted to run a big company — though he sounded at the end of the article as though he might be reconsidering that.

As he walked out of [Facebook founder Mark] Zuckerberg’s relatively modest Palo Alto colonial, clearly enroute to becoming the big company CEO he had told Steve Jobs he would be, Houston noticed the security guard parked outside, presumably all day, every day and pondered the corollaries of the path: “I’m not sure I want to live that life, you know?”

The downside with getting a big funding round is that eventually investors want to see some return on their investment — and typically that means either an IPO or an acquisition. Employees also typically want their big buyout, though Dropbox employee stock has reportedly been available on the secondary market.

The advantage of an acquisition by a major vendor is that it could give Dropbox the credibility and structure it would need to fit into the enterprise. It’s not that people aren’t using Dropbox. Quite the contrary — a recent survey by storage vendor Nasuni found that 20% of corporate users were using Dropbox.

This is despite the security and governance holes inherent with using a system such as Dropbox, the security holes in Dropbox in particular, and rules that corporations have attempted to put into place to keep people from using it. (Nasuni found that 49% of the people whose companies had rules against it were using it anyway.) As long as people have multiple devices — and they show no signs of stopping — and need access to their files, as well as the ability to send large files to other people, there’s going to be a need for the functionality, and all the rules in the world aren’t going to stop it, especially when, as Nasuni’s survey indicated, some of the worst offenders are executives.

“The most blatant offenders are near the top of the corporate heap — VPs and directors are most likely to use Dropbox despite the documented risks and despite corporate edicts,” writes GigaOm’s Barb Darrow. “C-level and other execs are the people who brought their personal iPads and iPhones into the office in the first place and demanded they be supported.”

So being purchased by a major player offers the opportunity to rein in some of these users, while still giving them the functionality they need. The company itself has also indicated that it plans to address the issue to make the product safer for corporate users — which would also make it more attractive to an acquirer.

The other likely aspect is that, as we’ve seen with e-discovery and other emerging markets, when the first big vendor goes, many of the smaller vendors quickly follow like dominoes. A Dropbox acquisition would likely presage a whole round of other ones; Wikipedia lists 17 “notable competitors,” including Box.Net and YouSendIt, and there are others. Acquisitions would also help simplify the complicated market.

Although major players such as Apple, Google, and Microsoft already offer their own cloud storage solutions, the vendors might want to acquire other ones for their technology, their people, or simply to get them off the market, while other vendors (dare I suggest HP, which doesn’t have a great track record on acquisitions these days?) would do so simply to get a toe in the market.

Either way, it seems likely that something will happen to this market next year.

A number of legal experts — as well as e-discovery vendors — have pointed to discovery of electronic documents such as email as an important factor in Apple’s patent victory over Samsung. Writes Doug Austin in E-Discovery Daily:

Interviewed after the trial, some of the jurors cited video testimony from Samsung executives and internal emails as key to the verdict.  Jury foreman Velvin Hogan indicated that video testimony from Samsung executives made it “absolutely” clear the infringement was done on purpose.  Another juror, Manuel Ilagan, said , “The e-mails that went back and forth from Samsung execs about the Apple features that they should incorporate into their devices was pretty damning to me.”

E-discovery vendors, such as Jeffrey Hartman of EDiscovery Labs, were quick to pounce on the case as an example.

This is yet another clear reminder that otherwise smart people continue to create electronic documents that are both dangerous and discoverable; even as awareness of these pitfalls increases. This is bad news for general counsels and company shareholders…but good news for plaintiff’s attorneys seeking the digital goodies that will help them win lawsuits. A large courtroom display of a blow-up of an emotionally charged internal report or email is often worth even more than technical testimony or other hard evidence.

Another important e-discovery aspect to the case is that first Samsung, and then Apple as well, were hit with “spoilation” charges for failing to preserve electronic evidence — in the case of Samsung, for example, for failing to turn off a function that automatically deletes email that’s more than two weeks old. While a number of e-discovery experts do recommend implementing such an autodelete feature, you have to turn it off once a case starts to preserve evidence that could be useful to the case, known as a “litigation hold.”

There’s a compilation of articles about the case if you want to read more — seriously, a lot more — about this.

Turns out, he wasn’t quite thorough enough. The Wall Street Journal, upon discovering that email of one cabinet member, then-Administration and Finance Secretary Thomas Trimarco, had been accidentally retained, made a public records request for copies of emails between Trimarco and top Romney officials, and reportedly got 73 pages’ worth.

Some of them are available here but it doesn’t really matter. They’re about the implementation of his health care plan (aka “Romneycare”), and honestly, I don’t care what they’re about. What’s interesting is the process of finding them, and how even someone who went to as much care as Romney to scrub his past was still tripped up by missing one guy’s email cache.

The Journal article, by Mark Maremont, also mentioned in passing that Romney occasionally used a private email account for discussing official business, which is non-optimal on a business  basis, let alone politically. Moreover, such a tactic doesn’t protect a person from an electronic discovery request; typically they cover all email accounts that a person might use, not just the business one — it just makes complying with the request more of a challenge for the IT department.

This wasn’t the only recent news on the Romney disk drive front. A few days later, while leaving a note to journalists following his campaign teasing them about the cushy bus they got to travel in, he added, “PS — erased your hard drives.”

While he obviously didn’t do that, the note gave all the reporters the opportunity to rehash the erased disk drive story from his gubernatorial days, as well as gave President Obama’s campaign the opportunity to criticize him.

“Mitt Romney may joke about how his staff erased government hard drives to keep his records secret, but what we do know about his record as Governor is anything but funny — he left the state 47th in job creation and number one in per capita debt in the nation,” Obama spokesman  Danny Kanner said in a statement.

(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:

1. Litigants will Focus On Leveraging Knowledge Gained In Prior Reviews
2. Out with the Old Pricing Model, In with the New
3. Cloud and Social Media Make Privacy, Security Issues Foggy
4. The Human Element Returns to eDiscovery
5. Judges, Regulators Increase Focus on eDiscovery Rules

Meanwhile, the nonprofit blog Metropolitan Corporate Counsel came out with its five predictions on Thursday.

1. The Cloud is here to stay
2. Big data and business intelligence meet eDiscovery
3. New technology drives real changes in how data is identified, collected, processed, reviewed, analyzed and produced
4. Data collection continues to become more complex
5. Continued maturation of corporate e-Discovery processes

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.

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.

Not to say, of course, that they’re completely unbiased; recall in this case that Symantec purchased Clearwell earlier this year in an attempt to improve its ranking after a recent Gartner Magic Quadrant on eDiscovery vendors.

That said, its Information Retention and eDiscovery Survey has some interesting points to be made — not the least of which is actual evidence from users that implementing an information retention policy saves money.

• Respondents using best practices reported a 64% faster response time with a 2.3 times higher success rate when responding to eDiscovery requests.
• They were 78% less likely to be sanctioned by the courts and 47% less likely to find themselves in a compromised legal position.
• They were also 20% less likely to have fines levied against them. In addition, they were 45% less likely to disclose too much information.

The part about “too costly” is particularly telling in light of the results.

Respondents who said they’d been asked to respond to a legal, compliance or regulatory request for electronically stored information reported the following results:

• Completely failed to fulfill the request 10%
• Partially failed to fulfill the request 10%
• Successfully fulfilled the request, but more slowly than the requestor would like 25%
• Successfully fulfilled the request in a timeframe that is acceptable to the requestor 35%

In that report, Gartner predicted that consolidation would have eliminated one in four enterprise e-Discovery vendors by 2014, with the acquirers likely to be mainstream companies such as Hewlett-Packard, Oracle, Microsoft, and storage vendors. Autonomy itself acquired Iron Mountain’s archiving, e-discovery and online backup business in May for US$ 380 million in cash.

HP offered the US equivalent of $42.11 per share for Autonomy, which it said was a 64% premium over the one-day stock price and a 58% premium over the one-month average stock price. The overall price is on the order of $10 billion.

Autonomy is a brand and marketing powerhouse that appears on many clients’ shortlists,” Gartner said in its earlier report. “Although we have seen little appetite for ‘full-service e-discovery platforms’ from clients as yet, Autonomy is positioned to seize these opportunities when they do arise — indeed, the overall market may evolve in that direction.”

HP’s chief executive officer, Leo Apotheker, formerly of SAP, has said he wants to focus on higher-margin businesses such as software and de-emphasize the personal computer business, said the New York Times. The company also said it is eliminating its WebOS business and is reportedly considering spinning off its PC business, just a decade after acquiring major PC vendor Compaq.

The AP, in fact, went so far as to say

[T]he decision to buy Autonomy also marks a change of course for HP, one that makes HP’s trajectory look remarkably similar to rival IBM’s nearly a decade ago. IBM, a key player in building the PC market in the 1980s, sold its PC business in 2004 to focus on software and services, which aren’t as labor- or component-intensive as building computer hardware.”

However, such a transition may not be easy, said an article in the Wall Street Journal, which examined how IBM had made that transition.

The Autonomy deal offered another advantage to HP, noted a different New York Times article. Like Microsoft’s purchase of Skype earlier this year, it gives HP the opportunity to spend money it had earned outside the U.S. — reportedly as much as $12 billion — without having to pay taxes on that money by bringing it into the U.S.

Other e-Discovery vendors include FTI Technology, Guidance Software, and kCura, the remaining vendors in the “Leaders” section in the Gartner Magic Quadrant. Less attractive, but also likely to be less expensive and, maybe, more desperate, will be the other vendors, such as AccessData Group, CaseCentral, Catalyst Repository Systems, CommVault, Exterro, Recommind and ZyLab in the “visionaries” quadrants, and Daegis, Epiq Systems, Integreon, Ipro, Kroll Ontrack,  as well as the ediscovery components of Lexis/Nexis and Xerox Litigation Services in the “niche” quadrant.