12/1/2015 E Discovery Disruption and the Field of Challengers | Law Technology News
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Big law firms have a reluctance to use modern Web applications, so they invest more and more into their legacy tools thinking they will somehow be 'okay.'"
Casey Flaherty, Legaltech News
December 1, 2015
The following article is part one of a twopart series.
The conventional wisdom about the ediscovery marketplace has been that maturation means consolidation and commoditization, and that wisdom seems vindicated. Earlier this year,
Legaltech News reported DTI's acquisition of Merrill and Epiq's purchase of Iris, further evidence that consolidation in the ediscovery space is rampant.
Likewise, I recently ran a large RFP for a corporate client where every participating vendor beat the incumbent pricing, some by as much as 50 percent. While my price comparison and reverseauction protocols deserve credit, much of the cost savings was attributable to the passage of time. In the few years since the client last went out to bid, market forces had driven prices down considerably.
Conventional wisdom can be right without being complete. By nature, conventional wisdom allows for little nuance. Just because consolidation and commoditization pervade the dominant narrative, it does not mean there are no other stories to tell. Mature, consolidated, and commoditized industries are hostile territory for fresh blood. In running my RFP, I was therefore intrigued by what appeared to be a wave of new entrants into the ediscovery space. Rather than speculate about the openings these challengers saw, I asked them.
Jo Sherman, founder and CEO of EDT, who relocated in 2014 to lead the company's expansion into North America after 13 years operating abroad, makes the point that the conventional wisdom about commoditization does not apply to every facet of the ediscovery market. While she is quick to concede commoditization among service providers, she is just as quick to explain that the software market is a different animal.
"Let's be really clear here. The software market is not commoditized," she says. "There are http://www.legaltechnews.com/printerfriendly/id=1202743663611 1/5
12/1/2015 E Discovery Disruption and the Field of Challengers | Law Technology News actually only a small handful of proven software vendors in the ediscovery sector. The service provider market, on the other hand, has become highly commoditized, and that's because 95 percent of service providers in the U.S. market are offering virtually the same solution. That means it's extremely difficult for them to differentiate. And that presents an opportunity for EDT and for other companies that have a totally different approach. So, in effect, the commoditization of the service provider market, driven as it has been by a monopoly software solution provider, presents not a threat but an opportunity for emerging software companies."
Jim Burton, vice president of sales for Evolver, which launched its ediscovery product in 2009, sees a different opportunity in the same dynamic: "Traditional ediscovery is a saturated market; everyone has good project management, the same tools, and is willing to offer the lowest price."
Enter Evolver, the first company to offer Relativity—the "monopoly software solution provider"
Sherman was referring to—on Amazon Web Services (AWS). While Relativity does not have a monopoly, the Am LawLTN Tech Survey indicates their position as a market leader. Relativity garnered more than three times the mentions of any other vendor, and many of the other vendors on the list are service providers that offer Relativity. Burton explains, "By white labeling our infrastructureasaservice, mediumsized ediscovery providers can maintain competitiveness in an increasingly commoditized market and not have to be absorbed by the larger market."
Roe Frazer, cofounder and CEO of Cicayda, helped create the company in late 2011 and agrees that the fact that "everyone" is doing the same thing creates openings. "There is no competition on software in the market. Every service company of any size is a Relativity shop with a few offering Catalyst. It is like all of them are either Comcast or Time Warner cable providers. Here is what we have because we paid a heck of a lot for it so we have to sell it to you. I believe the market is wide open for innovation, just as when Blackberry and Radio Shack ruled the tech world."
But, while he also agrees that the cloud is a game changer, Frazer does not think that porting traditional solutions to the cloud will be enough. "I believe that all the cloudbased companies who are truly architected for the Web are all doing the right thing there. You cannot take a legacy, install behindthefirewall software, put lipstick on it, and host in the cloud. It doesn't work, it is slow, it is frustrating," Frazer explains.
R. Scott Nichols, who founded Legal Data Strategies (LDS) this year, explains how the cloud enables newer entrants to challenge the status quo. Nichols asserts that the cloudbased
TotalDiscovery product LDS licenses "scares" established service providers because "it completely commoditizes their industry and takes the cost of managing data to scales of economy that they cannot compete against with their hard infrastructure." Nichols explains that
"eliminating the need to purchase and maintain datacenters, hardware, and software" has resulted in a "significant change in the cost structure" of ediscovery services.
Andy Wilson, CEO and cofounder of Logikcull, pivoted the company from traditional services to a SaaS model in 2013 and jokes, "I hear this cloud thing is a fad and companies aren't pushing all kinds of discoverable content to it, don't worry about it, you'll be okay." On a more serious note, he refers to the "irony of enterprise tech: the more you buy, the further and further behind you get." http://www.legaltechnews.com/printerfriendly/id=1202743663611 2/5
12/1/2015 E Discovery Disruption and the Field of Challengers | Law Technology News
AJ Shankar, who founded Everlaw in 2010, explains, "Many discovery platforms are hosted, which means they have less flexibility than cloud solutions and can't update as quickly or as often. Hosted solutions are more expensive to deploy, scale worse at larger data sizes, and are not as affordable as cloud solutions."
The cloud is not a fad. Indeed, for the first time, firms responding to the Am LawLTN Tech
Survey gave more yes (51 percent) than no (49 percent) answers to the question, "Does your law firm embrace cloud computing?" The trendlines suggest even higher adoption in the future.
Asked to compare their use of the cloud computing to last year, 65 percent responded that they were using the cloud more while 35 percent responded that their cloud usage was the same. No one (0 percent) responded that they were using the cloud less. The trend is unlikely to reverse.
Asked to describe their experience with cloud computing, 62 percent of the firms responded it was positive, 38 percent were neutral, and 0 percent found it disappointing.
The cloud, however, is a means, not an end. Brian McHughs, who founded Indexed I/O in 2012, comments, "There are a lot of companies that are trying to build a better mouse trap...but they are failing at the 'better' part. They feel that if they simply move traditionalbased solutions to new platforms, like the cloud, then inherently it will be better. They're wrong. To be 'better,' your solution has to fix something, and there is plenty to fix in the ediscovery space. When we started Indexed I/O in 2012, we didn't head out to do the same thing 'faster' or the same thing
'cheaper,' we wanted to fix the pain points we saw in the industry."
Everlaw's Shankar identifies one source of pain as the fact that "many market incumbents are built on old code and infrastructure, making them more inefficient and less responsive to changes in technology" and the attendant reality that "slow, buggy, and complex software has historically been the norm in the legal industry." According to Shankar, Everlaw's better mousetrap "prioritizes making its product fast, simple, and affordable, without sacrificing any of the power necessary for complex litigation. The software is as fast as Google and as easy to use as an iPad."
Wilson likewise invokes the familiar characteristics of consumer tech in describing Logikcull "a product that is silently updated every day of the year—300plus autoupdates, like your iPhone apps—with kickass new features." This "future proofed" approach comes "without the need to install and configure software or hardware, or call anyone. It's as easy as using Facebook, or
Dropbox, or LinkedIn."
Cloudbased consumerization of ediscovery technology is also the theme for Kent Radford, who founded CS Disco in 2012. "The biggest change in software today is consumerization.
While building software in the cloud for scale and performance is a quantum leap ahead of on premise technologies, that alone is not enough to revolutionize a market," Radford says.
"Outside of law, we see companies like Zendesk, Workday and Box rapidly replacing on premise software; however, it's not just because they are fast and cloudbased, it's because role and industryfocused ease of use is center stage. The disruptive products of today implicitly make sense to users, no need for training and user manuals. It's products like this that will disrupt the traditional tools and approaches to ediscovery."
For Logikcull's Wilson, the selfservice aspect of consumerized ediscovery in the cloud is, in part, about "cutting out the middle man—i.e., the ediscovery vendor or in some cases, the law http://www.legaltechnews.com/printerfriendly/id=1202743663611 3/5
12/1/2015 firm."
E Discovery Disruption and the Field of Challengers | Law Technology News
Yet, even with the middle man, prices have fallen. According to Wilson and others, they have not fallen nearly enough. Wilson says the goal should be "onetenth the price you pay today."
Bruce Fein, who cofounded Dagger Analytics this year, agrees that "the pricing in the market was way out of whack with actual cost. We're harnessing Moore's Law to rationalize prices," he says. Indeed, Fein identified price as his company's biggest barrier to entry: "People scoff at our price and think us not credible because it's so low."
On price, Cicayda's Frazer returns to the question of commoditization. "We do not believe the market is commoditized—we are a long way from being apples, oranges, and bananas. A commoditized market means there is complete transparency with price. There isn't anything close to that in ediscovery," says Frazer. "Also, most law firms simply do not care about price anyway—they pass it upstream to their corporate clients. The corporate clients don't really care that much, either, because they are overworked and quite often just accept the recommendation of their outside counsel."
Frazer is not alone in lamenting the stasis among legal organizations. Everlaw's Shankar points to a different cause: Many firms "have longterm contracts with old guards like Relativity" and
"are locked in for up to three years, making it hard for them to transfer products," Shankar says.
But he was also surprised by the "remarkable array of decision makers at different law firms: single decisionmakers, such as partners; technology committees; IT teams; a CIO or CKO; etc." And he observes, "Decisionmakers about ediscovery products are not always the ones who use the product, and they can be cynical about the opportunity—'all ediscovery platforms are the same'—because they may not be as handson with the tools, and thus not experience the differences firsthand."
Logikcull's Wilson concurs, "Big law firms have a reluctance to use modern Web applications, so they invest more and more into their legacy tools thinking they will somehow be 'okay' as technology quickly passes them by."
LDS's Nichols explains this reluctance, in part, stems from law firms' lack of "understanding how to use a subscription pricing model rather than a line item one to pass through cost or markup services. Law firms tend to categorize this as a services model, when it fact it is simply software that they can license to perform services."
It is not just that law firms are reluctant to test out new entrants. Often, they have not even heard of these tools. According to Sherman, EDT's biggest barrier to entry in the United States is "getting the message out." While Fein concedes that Dagger suffers from lack of "name recognition." Cicayda's Frazer pulls no punches, "The biggest barrier is the media, controlled in large part by the large, old guard companies. New entrants cannot afford to buy $50,000 booths at trade shows, or buy speaker platforms at trade shows or socalled conventions. New entrants cannot pay people to speak for them. New entrants cannot buy an ad in LTN, etc. New entrants cannot afford to put legal tech consultants on their payroll. It is really a David versus Goliath situation, which is why we are thankful for the five smooth stones of social media to get our message out."
The Goliaths, of course, have their own perspective. They will have their opportunity to share it in part two of this article next month.
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