I want to thank you all for the flood of responses to my tech alert. Our peers stepped up to confirm this and other potential issues experienced in Microsoft 365 (M365) and other market leading eDiscovery tech. Most have been aware of various issues going back years. Your feedback confirms my assertion that technical bugs, system limits and undocumented exceptions are common and always have been. So why are customer bug notices rarer than four leaf clovers in our industry? Should caveat emptor be the rule for eDiscovery buyers?
Anonymized feedback examples:
“..simple user search as the user they could often find more files versus using AED/SCC searches…”
“…my client says MSFT *broke* things with the Dec. fix…”
“…ediscovery search has always been broken…”
“…customers this fall that where finding many more one drive files based on some of their own searches in PRODUCTX than they could return in M365…”
“…why do you think we used to wait to roll out new releases of PRODUCTY? We were waiting from someone else to find the bugs. Now they just show up…”
Before we rush to condemn Microsoft and EVERY other eDiscovery technology developer, let’s set some context around the evolution of legal technology. Early forensic acquisition tools like Encase, FTK, etc. were sold primarily to law enforcement in the late 1980’s thru 1990’s. I did my CSI time in 1989-1993. I can assure you that we were taught to constantly validate those early tools with the expectation that we would find issues with every new release or target ESI source. We called them in for Guidance or Access Data to fix and posted alerts to the boards/lists so that our peers knew what to watch for. The criminal forensic community was tight. As was the earliest online eDiscovery community, the Yahoo LitSupport list founded by Dwayne Lites.
When I left law enforcement to launch my first document review start up (Paradocs) I relied on LitSuport list peers to keep Summation 3.1 running for all my coders. We traded Concordance scripts, load file macros and work arounds freely. The late 1990’s saw the conversion of copy/imaging shops to our first real eDiscovery providers experimenting with hosted review software. Somewhere in this process we lost that open discussion and customer-developer relationship. The service providers owned that relationship. I believe that the $/GB consumption model has incentivized service providers to hide bugs from their customers. Civil litigation is an adversarial system that rarely rewards proactive disclosure, though it does occasionally punish unethical concealment of errors.
Corporate and firm customers now directly purchase cloud SaaS/IaaS solutions like RelativityOne, Logikcull, DISCO, ICONECT and many others. Most customers with large, complex litigation profiles still rely on managed service providers to administrate their platforms and provide burst capacity resources when matters get busy. Those providers should reexamine their communication and disclosure practices. They no longer ‘own’ the tech. They always had a fiduciary duty to their customers. Now is the time to start doing the right thing when they find a glitch. As much as I appreciate hearing about how providers have known about all these things, it makes me ask who is ultimately responsible for incomplete productions or bad searches? Is it the technology provider or their channel partner who withheld the knowledge from customers/competitors?
With that diatribe off my keyboard, I did want to share some good news about the M365 search issue. Several providers with M365 search/collection integrations have reported that they do not believe that their products used the eDiscovery service or experienced this specific issue. With Legal Week(year) in motion, they have not had time to verify this, but I hope to get their customers some good news soon.
Greg Buckles wants your feedback, questions or project inquiries at [email protected]eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.
Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment or advice. Greg is no longer a journalist and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being posted. Do you want to share your own perspective? Greg is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations.
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