Lawyers, Storage Vendors and Money

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Once upon a time, e-mail wasn’t much of a worry. Then, no doubt inspired by a handful of smart lawyers and storage vendors, just about every enterprise suddenly had to make sure it stored every single e-mail sent or received or face enormous penalties. All of a sudden the e-mail archiving marketplace sprang up.

And analyst firms are predicting a strong future for it. International Data Corp. (IDC) has the market growing at a rate of around 25 percent annually and believes it should grow close to $1.4 billion by 2011.

Gartner places the 2011 prediction figure at a more conservative $1 billion. Either way, the market is currently worth more than $200 million a year and growing at a fast clip.

“The growing size of e-mail data stores coupled with the requirement to retain e-mail records for regulatory compliance and legal discovery has created a market for e-mail active archiving tools,” said Ken Chin, a Gartner analyst. Gartner defines an e-mail active archiving product as one that provides a searchable archive of e-mail messages for a defined period of time, after which messages can be purged.

e-discovery, thanks to the Federal Rules of Civil Procedure (FRCP), is one of the biggest drivers of e-mail archiving. Now that lawyers have gotten wind of the goldmine that is modern e-mail systems, they are serving up discovery requests in record numbers. Big corporations (and not so big ones) are being snowed under by demands to turn over all e-mails to and from the CEO, or about a specific subject. And they only have a short amount of time to comply, or face stiff penalties. It’s quite a bandwagon, and the vendors are firmly aboard.

“Just about every e-mail archiving vendor now says theirs is an e-discovery tool,” said Laura DuBois, an analyst at IDC. “We just finished up a major primary research study on archiving and the predominant drivers are e-discovery, record retention, storage and IT optimization.”

Archiving Convergence

DuBois expects the next five years to see e-mail and other content archiving solutions converge. Discovery is either being added to archiving tools or the capability is being acquired. And as the market grows, bigger fish will come to feast in the pond. DuBois anticipates plenty of mergers ahead.

Meanwhile, the march of e-mail archiving and e-discovery has been boosted by changes in the Federal Rules of Civil Procedure. This requires the various parties in a lawsuit to provide categorization of e-mails to meet discovery requirements. The courts have had enough of firms asking for more time while they blunder through a mountain of old backup tapes searching for specific messages.

“Corporate e-mail systems are the primary target for opposing counsel when e-discovery commences,” said Bill Tolson, director of legal and regulatory solutions marketing at Mimosa Systems. “Thus the need for a system that captures all discoverable content, not just sent and received e-mails.”

He says a single e-discovery event can cost a company many times the cost of an integrated e-mail archiving and e-discovery solution. As a result, it’s likely that even those companies in industries with lower than normal litigation rates will eventually be driven to adopt this technology.

Mimosa is making a big play in the Exchange e-mail market. Tolson claims his company is the only archiving vendor that captures and archives all potentially discoverable content in the Exchange system, including e-mail, attachments, e-mail attributes, calendar entries, task lists, contacts, notes and journal entries.

While some vendors are extending their archiving tools to encompass e-discovery and other features, Clearwell Systems comes at it from a different angle. It is an e-discovery specialist that is expanding into the archiving arena.

“We have seen e-discovery become a primary driver for e-mail archiving,” said Kamal Shah, Clearwell’s vice president of marketing. “We see this trend continuing, and legal departments are increasingly teaming up with IT to drive archiving decisions.”

Recent legal developments, he believes, mean that e-discovery vendors have to quickly shore up their e-discovery capabilities to demonstrate their worth. Archiving vendors, on the other hand, either have to partner or build their internal e-discovery capabilities. HP, for instance, has teamed up with Clearwell to sell the Clearwell e-discovery platform along with HP’s Integrated Archive Platform.

“The convergence of e-mail archiving and e-discovery tools is still in the early stages,” said Shah. “Users should look for vendors that provide an integrated end-to-end e-discovery solution that has been proven at Fortune 500 companies.”

CommVault Systems is another vendor intent on gaining ground in this sector. And once again, it takes a completely different tack. Emily Wojcik, a product marketing manager at CommVault said that as many as 40 percent of court cases involve the discovery of e-mail. At the same time, litigators are becoming more technically savvy, and judges are becoming more confident due to the FRCP amendments. This means that e-discovery mistakes are no longer tolerated.

“As e-mail archiving and e-discovery converge, vendors must work to bridge the gap that exists between IT and legal teams,” said Wojcik. “Collaboration is the key to success.”

Beyond E-Mail

Wojcik noted that courts are beginning to look beyond e-mail for discovery. Therefore, all electronically stored information (EIS) can be the subject of discovery. CommVault has responded to this by offering the ability to manage and access all ESI from its creation to deletion, across all data repositories, with search and discovery that goes well beyond e-mail archives and can all be managed from a single management interface.

Gartner sees yet another facet of the ever-changing archive and discovery marketplace. While e-discovery of e-mail and possibly all files stored anywhere in the storage infrastructure is one likely direction, Gartner has noticed e-mail archiving combining with e-mail management as a whole. And there are probably other areas and technologies this sector will morph into over time.

Some vendors, as covered above, have started to integrate better search and analytics technologies to be able to do e-discovery within the e-mail archive. Algorithms are used to determine the content of the message to aid in analysis and speed the process. Others such as Mimosa are focused squarely on addressing management of Exchange-based e-mail systems. Gartner feels mailbox management will exert as strong an influence on the future of the market as e-discovery.

“E-mail archiving products continue to add functionality to meet market demands,” said Chin. “A few vendors still focus on the unique compliance supervision requirements of the financial community, but that market is relatively small compared to support for legal discovery and mailbox management.”

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Drew Robb
Drew Robb
Drew Robb is a contributing writer for Datamation, Enterprise Storage Forum, eSecurity Planet, Channel Insider, and eWeek. He has been reporting on all areas of IT for more than 25 years. He has a degree from the University of Strathclyde UK (USUK), and lives in the Tampa Bay area of Florida.

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