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March 16, 2006

Archived Version of My Information Lifecycle Management Webinar Available

RenewData is making the recording of my recent webinar on information lifecycle management available here.

I'd like to thank RenewData (especially Alan Brooks, Eric Feistel and Rob Robinson) and the audience for making this presentation a very enjoyable experience for me. You can download the white paper on which the presentation was based here.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: legal technology information lifecycle management webinar electronic discovery

Posted by dmk at 07:40 PM | Comments (0)

March 14, 2006

Last Chance to Register for My Information Governance Webinar on March 15

On March 15, I'll be presenting the webinar "Making the 'Right' Decision at the Information Lifecycle Management Crossroads." Registration details are here.

We can both better manage risk and extract more business value from our information if we consider carefully how we treat information at each stage from the time of its creation to its final disposal. That's information lifecycle management, and this webinar addresses some practical approaches for addressing these issues.

The webinar is based on a white paper on this topic I recently wrote for RenewData (white paper available for free download here).

I invite you to join me on the 15th to learn more about this topic.

A big thank you to my friends at RenewData for making this happen.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: electronic discovery webinar information lifecycle management compliance

Posted by dmk at 08:59 PM | Comments (0)

March 10, 2006

Repeat of Information Lifecycle Management Webinar on March 15

I greatly enjoyed presenting the webinar "Making the 'Right' Decision at the Information Lifecycle Management Crossroads" yesterday.

The good news for those of you who missed it is that I will be repeating the free webinar on Wednesday, March 15. Registration details are here.

It's been calculated that electronic discovery costs will be in the neighborhood of $2 billion in 2006. However, total costs of compliance, including Sarbanes Oxley, are estimated to be $27 billion.

These numbers are just part of the reason why many people are rethinking their efforts in information management.

In the world of electronic discovery, there has been a focus on information retention and deletion issues or, if you will, how information "dies."

As we look more closely at the use and value of information within an organization, however, there is a growing realization that information has different uses and value from time to time, and there are many more things that we care about than simply whether a document should be retained or deleted.

In fact, we can both better manage risk and extract more business value from our information if we consider carefully how we treat information at each stage from the time of its creation to its final disposal. That's information lifecycle management, and this webinar addresses some practical approaches for addressing these issues.

The webinar is based on a white paper on this topic I recently wrote for RenewData (white paper available for free download here).

As I write, speak and learn more about this topic, it strikes my as one of the most important information issues facing organizations today. I invite you to join me on the 15th to learn more about this topic.

From the program description:

A myriad of challenges - from corporate governance to regulatory compliance requirements are affecting the approach organizations are taking to records and electronic discovery management.
With these challenges in mind, this Webinar is designed to:

+ Provide insight and education on the evolving world of information lifecycle management (ILM).

+ Discuss the challenges that decision-makers face when considering treating organizational data as evidence.

+ Explore an approach to managing these challenges by focusing on an integrated, needs-based approach to providing long-term, forward-looking solutions which promises better results in meeting both today's requirements and tomorrow's challenges.

It's an important topic and I hope that you can attend. A big thank you to my friends at RenewData for making this happen.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: electronic discovery webinar information lifecycle management compliance

Posted by dmk at 08:45 AM | Comments (0)

March 08, 2006

Reminder: My Information Lifecycle Management Webinar is Tomorrow (March 9)

I have been putting the finishing touches on the free webinar I'll be presenting tomorrow (March 9; with a repeat on March 15) called "Making the 'Right' Decision at the Information Lifecycle Management Crossroads," a presentation created to accompany my recent whitepaper on this topic. You have a choice of attending on March 9 or March 15 (registration information here).

From the program description:

A myriad of challenges - from corporate governance to regulatory compliance requirements are affecting the approach organizations are taking to records and electronic discovery management.
With these challenges in mind, this Webinar is designed to:

+ Provide insight and education on the evolving world of information lifecycle management (ILM).

+ Discuss the challenges that decision-makers face when considering treating organizational data as evidence.

+ Explore an approach to managing these challenges by focusing on an integrated, needs-based approach to providing long-term, forward-looking solutions which promises better results in meeting both today's requirements and tomorrow's challenges.

It's an important topic and I hope that you can attend. A big thank you to my friends at RenewData for making this happen.

In many ways, electronic discovery is just a small subset of ILM and it will be fascinating to see whether ILM swallows up electronic discovery in the coming years. I'll touch on that topic, and more, in the webinar.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: electronic discovery webinar

Posted by dmk at 02:32 PM | Comments (0)

March 07, 2006

Practical Tips for Evaluating E-Discovery Vendors and Providers

"Practical Tips for Evaluating E-Discovery Vendors and Providers" is the title of the brand new Thinking eDiscovery column by Tom Mighell, Evan Schaeffer and me that's been posted on the excellent DiscoveryResources.org website.

The title is descriptive, if not overly catchy - we may have to hire our friend and title writer extraordinaire Denise Howell to punch up our titles.

In the column, we talk about some of the lessons Tom and I learned during our recent trip to the LegalTech NY trade show and give some pointers for making some sense out of the confusing world of electronic discovery vendors.

If you have comments or questions about this column or want to suggest topics for future columns, let me know.

Note that our previous column, "Mining the Value from Metadata," can now be found at http://www.discoveryresources.org/04_om_thinkingED_0601.html

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: legal technology electronic discovery

Posted by dmk at 04:48 PM | Comments (0)

March 06, 2006

Applying Clausewitz's Principles of War to Electronic Discovery

Here's a great five minute exercise for anyone involved in electronic discovery.

Check out Rob Robinson's online slide presentation called "Clausewitz and eDiscovery: The principles of war in relation to the eDiscovery process."

It's a great thinking exercise that might help you see electronic discovery in a new light and start some new conversations. I really like approaches that bring principles from other fields into the practice of law. I'm now tempted to write about John Boyd's OODA Loop and its application to electronic discovery.

Highly recommended.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: legal technology electronic discovery Clausewitz OODA Loop

Posted by dmk at 02:16 PM | Comments (0)

March 03, 2006

Navigating The Information Lifecycle Management Crossroads: Free One-Hour Web Seminar

I will be presenting a webinar called "Making the 'Right' Decision at the Information Lifecycle Management Crossroads," a presentation created to accompany my recent whitepaper on this topic. You have a choice of attending on March 9 or March 15 (registration information here).

From the program description:

A myriad of challenges - from corporate governance to regulatory compliance requirements are affecting the approach organizations are taking to records and electronic discovery management.
With these challenges in mind, this Webinar is designed to:

+ Provide insight and education on the evolving world of information lifecycle management (ILM).

+ Discuss the challenges that decision-makers face when considering treating organizational data as evidence.

+ Explore an approach to managing these challenges by focusing on an integrated, needs-based approach to providing long-term, forward-looking solutions which promises better results in meeting both today's requirements and tomorrow's challenges.

It's an important topic and I hope that you can attend. A big thank you to my friends at RenewData for making this happen.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: electronic discovery webinar

Posted by dmk at 03:07 PM | Comments (0)

March 02, 2006

Poor Electronic Discovery Practices Determining Case Outcomes?

Toby Brown's post "Poor e-Discovery Deciding Case Outcomes?" raises some important questions about the approach many lawyers and law firms are taking to electronic discovery.

Toby makes three important points, each of which will give you plenty to think about:

1) Poor/Sloppy/Lazy e-discovery practices by lawyers are determining case outcomes.
2) Most lawyers are focused on defending e-discovery requests right now.

3) The amount of available electronic information in discovery is so voluminous; humans can't possibly review it all.

Toby's second point is especially interesting. He suggests that lawyers are so focused on defending requests that they are passive in their own e-discovery requests, in large part because they are afraid that they cannot defend an aggressive request that comes right back at them. Think about it.

Toby's post reminds me to mention that it's the time of year to finalize your plans to attend ABA TECHSHOW 2006.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tag: electronic discovery

Posted by dmk at 06:57 PM | Comments (2)

February 16, 2006

What is Information Lifecycle Management?

I've been thinking lately about records management and information governance as being more important than the related area of electronic discovery. And I'm not the only one thinking that way.

I've written a new white paper called "Making the Right Decision at the Information Lifecycle Management Crossroads" for RenewData that's hot off the presses. You can download it for free here.

As you may have noticed, I've started to do some white paper writing lately. I really enjoy it. It gives me a chance to write longer, analytical pieces that provide some big ideas and a context for them in a way that I typically cannot do in magazine articles and to write for a different audience.

I think that this white paper on information lifecycle management will give lawyers, IT people and business execs involved in the compliance, records management, information governance and e-discovery areas some useful ideas to think about. It certainly represents my latest thinking on this subject. Let me know what you think about the white paper.

And, yes, I would be receptive to talking with you about writing white papers for your company, especially if you are as pleasant and easy to work with at Rob Robinson and the people at Renewdata.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by Dennis Kennedy's half-day electronic discovery seminar - "Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery." Contact Dennis today for more information and to schedule a seminar for your firm or legal department.

Technorati tags: information lifestyle management electronic discovery

Posted by dmk at 11:00 AM | Comments (0)

February 09, 2006

How Difficult Is It Becoming to Sort Through Electronic Discovery and Litigation Technology Vendors?

Rees Morrison has a good analytical post on the number of electronic discovery and litigation support vendors at the recent LegalTech New York conference. The numbers help you understand why making choices in these categories can seem overwhelming.

The money quote:

My point from this admittedly flawed and artificial research is merely that law departments that are forced to come to grips with expensive, complicated, fast-changing and crucial document discovery have hundreds of vendors clamoring for selection.

Too many of these vendors still want to describe themselves as "full-service electronic discovery providers," a description that I don't think is helpful to anyone. I spent a fair amount of time on the exhibit floor trying to get electronic discovery vendors to explain to me what market segments they were really good at. Learning that is very helpful.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Technorati tag: electronic discovery

Posted by dmk at 08:56 PM | Comments (1)

February 08, 2006

Is There Another Web-based Search Tool for Digests of Court Cases Involving Electronic Evidence?

I mentioned the Sensei electronic evidence case search tool yesterday and then saw that the Preston Gates Electronic Discovery Case Database now contains more than 400 cases. The good news is that you now have two free search tools for electronic discovery cases.

I've mentioned the Web 2.0 search tool called Rollyo before. I'm fascinated at the ways you can now start to put together your own toolbox of highly-specially search tools that fit your needs.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Technorati tags: electronic discovery web 2.0

Posted by dmk at 03:11 PM

February 07, 2006

Is There a Web-based Search Tool for Digests of Court Cases Involving Electronic Evidence?

My friends and electronic discovery wizards Sharon Nelson and John Simek at Sensei Enterprises have just unveiled a handy search engine that allows you to research electronic evidence cases in their database of digested versions of relevant court decisions. The Electronic Evidence Case Digest is found at http://www.senseient.com/case_search.asp . Add this one to your electronic discovery toolbox.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Technorati tags: electronic discovery electronic evidence

Posted by dmk at 04:12 PM | Comments (0)

February 02, 2006

Will You Be Making Your Slides for Your Electronic Discovery Trends Presentation at LegalTech NY 2006 Available?

I've put a PDF file (approx. 600K download) of a 3 slides per page handout of my PowerPoint slides from my recent presentation "Electronic Discovery Technology Trends for 2006" on my website for free download. The URL for the PDF file is http://www.denniskennedy.com/pdfs/Kennedy2006EDDTrendsppt.pdf.

I'll write more about my experiences at LegalTech NY over the next few days (it was great), but I especially enjoyed the chance (thanks to my friends at Caselogistix) to give this presentation. I really liked the way the presentation turned out and am pleased by the very positive response I got to the presentation. It was a great audience to work with.

Rob Robinson posted some photos from the presentation here. A special thanks to Tom Mighell for his inspired last-minute idea to get a balky projector to show these slides during the actual presentation.

Download PDF of slides.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Technorati tags: legal technology electronic discovery

Posted by dmk at 10:36 AM | Comments (1)

January 27, 2006

Do You Have Any More Good Resources about What Lawyers Need to Know about Metadata in Documents?

I've found two good articles on metadata this week that I wanted to highlight.

The first is an excellent, detailed article by Craig Ball called "Understanding Metadata" that goes into many of the specific details about metadata in Microsoft Office documents, as well as explaining two descriptive categories of metadata - system metadata and application data. If you want a great "under the hood" look at metadata, this article is the place to start. Evan Schaeffer is also a fan of the article.

The second article focuses more on the evidentiary and procedural rules and case law to-date addressing metadata issues. It's called "Uncertain and Unseen" by Todd Nunn, of Preston Gates, and a great primer on these issues.

For a good overview primer that points you to some good resources, I still like the Thinking E-discovery column called "Mining the Value from Metadata" that Tom Mighell, Evan Schaeffer and I wrote about a month ago.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Technorati tags: electronic discovery metadata

Posted by dmk at 05:21 PM | Comments (0)

January 22, 2006

Will NSA's Guide to Dealing with Word Metadata and PDFs Give You All the Help You Need?

As the report says, it should work. Ahem.

Lots of people are linking to the NSA's Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF. I especially like Ed Bott's reaction to the guide, which points out a few concerns you might keep in mind if you plan to rely on the guide's content.

Bott highlights the following quote from the guide:

The following steps were tested with MS Word 2000 and Acrobat 5.0 and 6.0. Other recent versions should work similarly.

The money quote from Bott:

"Should work similarly"? That doesn't give me a lot of confidence. If you're going to go to the trouble of producing a definitive set of guidelines for such a crucial subject, why use only one seven-year-old version of Word? How long could it have taken to test these procedures with Word 2002 (from Office XP) and Word 2003 (from Office 2003)? And why not give it a run-through with Acrobat 7.0, the current version?

Caveat emptor. Take advantage of the good information, but be wary of relying only on this guide, especially if you routinely use current versions of software.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Technorati tags: electronic discovery

Posted by dmk at 10:58 AM | Comments (1)

January 03, 2006

Should Lawyers Be Prevented From Reading Metadata?

Fresh off a fabulous performance on Blawg Review #38, which was based on his terrific presentation at BlawgThink, Evan Schaeffer takes just the right tone in covering the recent story of the Florida Bar's Board of Governors wanting to ban the practice of looking at metadata in electronic documents.

The board voted unanimously for a motion stating that lawyers should not look at metadata and also referred to the Professional Ethics Committee of the Florida Bar the question of "whether it is unethical for a lawyer to mine metadata from an electronic document he or she receives from another party."

I'm baffled by this approach, which I've heard or seen a number of lawyers and bar regulators make. Imagine, for example, being a client and learning that your lawyer could not look at the metadata in a document that you knew had been copied from you or stolen from you.

I'm also personally disappointed that regulators want to ban one of the areas that I have developed some knowledge and expertise about. I'd prefer that they ban an area I know nothing about.

As I've mentioned before, I don't think metadata is all that difficult to figure out and I can't imagine why looking at this readily-available evidence would be "unethical." For a good article that includes some of my approach to metadata, see "Mining the Value from Metadata," a recent column from Tom Mighell, Evan Schaeffer and me.

Back to the original question: My answer is comes from John McEnroe: "You cannot be serious!"

It's probably a better idea to learn how to deal with metadata rather than rely on some kind of "gentlemen don't read other gentlemen's mail" argument to get some kind of regulatory protection.

[Originally posted on DennisKennedy.Blog (http://www.denniskenney.com/blog/)]

Posted by dmk at 08:56 PM | Comments (0)

December 27, 2005

Survey Says Majority of Employees Have Sent or Received Potentially Damaging Email

I thought you might be interested in a recent press release on email usage issued by Fortiva that quotes me briefly. The press release summarizes the results of a study they did on employee email habits. The results are fascinating and might prompt you to do some follow-up at your firm, company or organization.

Risky Business: New Survey Shows Almost 70 Per Cent of Email-Using Employees Have Sent or Received Email that May Pose a Threat to Businesses

Survey results indicate employee email habits may be exposing businesses to potential legal pitfalls; substantial discrepancy exists between actual and perceived risks

November 15, 2005 – Norwalk, CT – Before you hit send, you may want to think twice about the content of your email. Chances are if it is a joke, gossip, or even information about your company, you could be putting yourself – and your company – at risk. A new survey released today, conducted by Harris Interactive® for Fortiva, shows that 68 per cent of U.S. employees who use email at work have sent or received email via their work email account that could place their company at risk. Despite this, 92 per cent of these employees do not believe they have ever sent a risky email. Together these statistics indicate a substantial discrepancy between employees’ perceived and actual risks.

Fortiva commissioned Harris Interactive, best known for The Harris Poll®, to look at email usage among employees. The survey, which examined the email habits of over 1,000 individuals who use email at work, uncovered a number of issues that raise concerns for businesses – both in the way employees are using and storing their corporate email.

According to the results, a majority of employees who use email at work (61 per cent) admit they have used email at work for personal use. Results also show that nearly half (48 per cent) say they have sent or received joke emails, funny pictures/movies, funny stories of a questionable tone (e.g., racy/sexual content, politically incorrect), while one in five (22 per cent) say they have sent or received a password or log-in information via email. When shared through email, this type of content could pose significant risks to businesses, either from a possible security breach or employee-driven lawsuits. Respondents were given a list of nine email categories that could be considered medium to high risk; only 32 per cent said they had never sent or received email in any of those categories.

“As email is being used increasingly as evidence in lawsuits, it is very important for organizations to educate their staff on what is and isn’t acceptable in a workplace communication,” said Dennis Kennedy, an information technology lawyer and legal technology consultant based in St. Louis, Missouri. “Those organizations that don’t implement effective policies and procedures, train their people, and enforce policies for email are at serious risk of facing both future lawsuits and unhappy results in those lawsuits. These statistics reinforce the fact that businesses need to do a better job of reducing their risk by communicating their policies more effectively with employees and backing up that communication with training and well-designed technology solutions,” Kennedy added.

While a majority of employees (73%) who use email at work are aware of corporate email policies, less than half (46 per cent) say they “always” adhere to the policy. This statistic suggests a lack of understanding among employees of the importance of an email policy.

The way that employees are storing their email may be of even more cause for concern than the content of those messages. While 41 per cent of employees who use email would prefer to keep important emails indefinitely, most businesses place limits on the amount of email that can be stored.

- more -
Such storage limitations may be leading to practices that could jeopardize information security. The survey reports that half of employees who use email at work (51 per cent) have saved email outside the corporate network, putting valuable and sometimes confidential information at risk of falling into the wrong hands. For organizations that are not archiving their email, this practice of saving data outside the controls of the corporate network presents an even greater risk, particularly in a litigation situation.

“It’s a fact – employees are using your corporate network to send personal emails, from jokes to gossip to confidential information – and every business should be taking the necessary steps to protect that data from ending up in the wrong hands, or leading to a lawsuit,” said Paul Chen, CEO of Fortiva Inc. “If email from your organization is presented as evidence in a trial, and you don’t have a copy of that email, you may be unprepared to defend yourself. Worse still, email that could support your claim of innocence could also be unavailable, ultimately leading to a forced settlement or guilty finding. A reliable email archiving solution can help businesses avoid these situations and save millions of dollars in fines and settlements, not to mention salvaging their corporate credibility.”

An email archiving solution can enforce policies and ensure that evidentiary-quality copies of all corporate email are available in the event of legal or regulatory investigations. Fortiva’s managed email archiving solution was designed to help businesses automatically enforce email policies, meet regulatory compliance rules, and quickly and easily meet e-discovery requests. The Fortiva solution also allows employees to access their own email archives, including deleted email, from their corporate mailbox. This feature can help reduce the burden on email servers, while eliminating the need for employees to store copies of email outside the corporate network.

Additional findings from the survey include (among U.S. employed adults who use email at work):

* Those who earn over $75K a year are more likely to save work-related email outside of the company’s network (62 per cent vs. 41 per cent of employees who earn less than $50K a year)
* 73 per cent admit to knowing their company has an email policy; yet less than half (46 per cent) admit to always making sure they comply with policy before sending a note
* 9 per cent of U.S. adult employees who use email at work have used company email to submit their resume to another company
* One-fifth of employees (22 per cent) have sent personal details to HR including Social Security numbers, salary details, or medical information via email

Survey Methodology
Harris Interactive® fielded the study on behalf of Fortiva, Inc. from November 2-4, 2005, via its QuickQuerySM online omnibus, interviewing a nationwide sample of 2,400 U.S. adults aged 18 and over, among whom 1,042 are employed and send or receive email at work. Data were weighted to reflect the total U.S. adult population on the basis of region, age within gender, education, household income, race/ethnicity, and amount of time spent online each week. In theory, with a probability sample of this size, one can say with 95 percent certainty that the overall results have a sampling error of plus or minus 3 percentage points and the results of the employed adults who send or receive email at work is plus or minus 4 percentage points. Sampling error for the various sub-samples of employed adults who send or receive email at work is higher and varies. This online sample is not a probability sample.

About Harris Interactive®
Harris Interactive Inc. (www.harrisinteractive.com), based in Rochester, New York, is the 13th largest and the fastest-growing market research firm in the world, most widely known for The Harris Poll® and for its pioneering leadership in the online market research industry. Long recognized by its clients for delivering insights that enable confident business decisions, the Company blends the science of innovative research with the art of strategic consulting to deliver knowledge that leads to measurable and enduring value.

Harris Interactive serves clients worldwide through its United States, Europe (www.harrisinteractive.com/europe) and Asia offices, its wholly-owned subsidiary Novatris in Paris, France (www.novatris.com), and through an independent global network of affiliate market research companies. EOE M/F/D/V

To become a member of the Harris Poll OnlineSM and be invited to participate in future online surveys, go to www.harrispollonline.com

About Fortiva Inc.
Fortiva is a leading provider of managed email archiving solutions for regulatory compliance, legal discovery and email storage management needs. With its outsourced solution, Fortiva is helping businesses across North America to quickly and easily meet email archiving needs without risking data security. Using proprietary DoubleBlind Encryption™ technology, Fortiva stores all data offsite in encrypted form, so Fortiva staff can never access the content of archived data. The customer retains exclusive access to the encryption keys, allowing them to instantly search and retrieve archived data without worrying about managing the storage infrastructure. Headquartered in Toronto, Canada and with offices across the United States, Fortiva delivers its customer-driven solutions through a strong network of strategic partnerships as well as a direct sales force. Fortiva is a privately-owned company, with investment from Cargill Ventures, McLean Watson Capital and Ventures West. For more information, visit www.fortiva.com.

About Dennis Kennedy.
Dennis Kennedy is a well-known information technology lawyer and legal technology consultant based in St. Louis, Missouri. Kennedy speaks and writes frequently on legal and technology topics and has covered corporate policies on email and Internet usage on the Between Lawyers blog (www.corante.com/betweenlawyers/) as well as in his own blog and articles. He also co-writes a column called "Thinking E-Discovery" at DiscoveryResources.org. For more information, visit www.denniskennedy.com.

In organizations up to 2,000 employees, 57 per cent enforce a mailbox size quota; In organizations greater that 2,000 employees, 72 per cent enforce a mailbox quota – Messaging Archiving Market Trends, 2005-2008, An Osterman Research Multiclient Study.

###

Contact:

David Gollom
High Road Communications
416.368.8348 ext. 267
dgollom@highroad.com

Victoria Badgley
Fortiva
416.366.6666 ext. 383
Victoria.badgley@fortiva.com

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 01:09 PM | Comments (0)

Mining and Minding Your Metadata - New Electronic Discovery Column

The January Thinking E-Discovery column titled "Mining the Value of Metadata" is now available on the DiscoveryResources.org website. In this column, Tom Mighell, Evan Schaeffer and I take on the timely topic of metadata (in the legal world, "metadata" refers to hidden or revealable data contained in Microsoft Word and other documents).

The column is a wide-ranging discussion of the topic, complete with some practical pointers. There's been a lot of attention on this topic recently and I don't think it's all that difficult to become reasonably knowledgable about the issues. This column will help you get off to a good start.

The money quote is from Evan Schaeffer:

It just so happens that I have a Word document open on my desktop right now. When I look at the file's properties, I see that the "author" is listed as my law partner. She's never worked on the document but I'm using her computer. That's an interesting example of how metadata can be wrong.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 12:50 PM | Comments (0)

December 14, 2005

An Important Tip about Word Track Changes and the Metadata Problem

I learned something new and a very important distinction to keep in mind about Microsoft Word metadata from Tom Mighell today.

Tom and I were discussing whether clicking on "Accept all Changes" and saving a document would protect you from having someone to whom you sent the document be able to turn the "Track Changes" back on or otherwise see revisions and comments you had made but thought you had hidden.

Tom contended that the "Accept all changes" approach would work. Based on my fuzzy memory of what I had been able to do in previous versions of Word and this article, I had my reservations - but I like to be cautious on these issues, but I trust Tom's opinions.

We tried a few experiments, checked with a forensics expert and did a little research. I'm now willing to admit that Tom was right, with a few words of warning and some advice that you satisfy yourself about the answer.

Here are the lessons I learned:

1. I was equating turning off Track Changes with Accepting All Changes. They are very different and the approach of turning off Track Changes is the one that is dangerous and can lead you into embarrassing situations. My approach was overly conservative, which is not necessarily a bad thing in this area. The one thing that you must realize is that simply turning off "Track Changes" will not protect your document.

2. If you want to rely on the "Accept all Changes" approach, you really have to make sure that you know what you are doing and check all of the right boxes. Any "user error" can make your revisions and comments viewable to someone who knows what they are doing. Proceed very carefully. The devil truly is in the details.

3. Before you rely on this approach, you absolutely need to make sure that this approach works with the versions of Word and the default settings you are using.

4. Microsoft has some great information on its website about the Track Changes issues, including a very helpful demo that should be required viewing for everyone who uses Track Changes.

5. As the computer forensics experts like to say, there may well be other ways for experts to find the revisions.

So, I some new things today, courtesy of Tom, about an issue that more and more lawyers are worrying about. I highly recommend, however, that you watch the demo.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 05:36 PM | Comments (0)

December 04, 2005

Is Email Putting Your Company at Risk?

The Sarbanes-Oxley Compliance Journal has a piece called Is Email Putting Your Company at Risk?" that includes some quotes from me on the potential legal and liability issues involved in business use of email, and some thoughts about how to handle those issues.

The article and quotes come from a press release from Fortiva that talks about the fascinating results they found in a recent survey about the business use of email.

The money quote:

"While a majority of employees (73%) who use email at work are aware of corporate email policies, less than half (46 per cent) say they always adhere to the policy. This statistic suggests a lack of understanding among employees of the importance of an email policy."

Here are my comments:

As email is being used increasingly as evidence in lawsuits, it is very important for organizations to educate their staff on what is and isnt acceptable in a workplace communication, said Dennis Kennedy, an information technology lawyer and legal technology consultant based in St. Louis, Missouri.

Those organizations that dont implement effective policies and procedures, train their people, and enforce policies for email are at serious risk of facing both future lawsuits and unhappy results in those lawsuits.

These statistics reinforce the fact that businesses need to do a better job of reducing their risk by communicating their policies more effectively with employees and backing up that communication with training and well-designed technology solutions, Kennedy added.

Thanks to Michael Arkfeld for the pointer to the article, which includes some eye-opening information about how people are using email these days.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 12:11 PM | Comments (0)

November 07, 2005

Beware of Your Digital Tracks

I had a great time talking with Tim Zeller of the New York Times last week about metadata in Word and other documents and other ways you can find hidden data in electronic documents.

Tim was kind enough to quote me in today's article in the NY Times called "Beware of Your Trail of Digital Fingerprints."

It's a good, and timely, article. There have been a number of public disclosures of revisions and hidden data recently, as the article describes.

It's been fun getting emails today from friends who saw the article. It's also fun to read the NYT convention of referring me to as "Mr. Kennedy."

I recommend that you read this article and start doing some thinking about the metadata issue. I've written about it on this blog and on the Between Lawyers blog as well.

Other legal bloggers have been in the newspapers lately , too, as Steve Nipper mentioned today. I'm sure we'll be comaring notes on being in the papers at BlawgThink.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 07:13 PM | Comments (1)

October 31, 2005

Why Aren't More Lawyers Doing E-Discovery?

Whenever I talk about electronic discovery with non-lawyers, they always are surprised by how lawyers seem to avoid electronic discovery whenever possible. They often ask me why I think this is the case. I don't really have the perfect answer for that question, although I tend to use the "fear" answer more frequently these days.

Tom Mighell, Evan Schaeffer and I, however, show no fear in trying to give our answers to this question in our latest "Thinking E-Discovery" column called "Why Aren't More Lawyers Doing Electronic Discovery?" on the essential electronic discovery portal site, DiscoveryResources.org. We really enjoyed writing this column and I recommend it highly.

I'm still trying to do my part in educating those of you who deal with lawyers struggling with the whole notion of electronic discovery, as well as lawyers wanting to learn more about electronic discovery, with the seminar I mention at the end of this post. Mention this post when you book my seminar and I'll give you a 5% discount.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog)]

Posted by dmk at 09:55 PM | Comments (0)

October 24, 2005

The Mysterious World of Metadata - Article

[Written in January 2005]

The Mysterious World of Metadata

A. Introduction

Recent stories about lawyers releasing documents containing embarrassing hidden data have highlighted the dangers of "metadata," especially in documents created with Microsoft Office programs. Unfortunately, other lawyers who do not learn how to deal with metadata will suffer the same public humiliation. Metadata may not be the most important issue in electronic discovery, but it is one issue that lawyers must be familiar with because there will be negative consequences if they don't address the well-publicized issues.

A. What is "Metadata" and Why We Should Care About It

The hidden data we call metadata is another example of a helpful feature that has some unfortunate negative consequences. The term is occasionally used in a limited or otherwise imprecise way, so let me give you my definition.

1. Defining the Term

"Meta" is the Greek word for "about." Metadata refers to certain data that are associated with a document, but are not generally visible in the ordinary display or printing of the document. Common examples include comments, markup and revisions, author, owner and other information, and even records of versions. Although metadata is often discussed in connection with Microsoft Office documents, it can be created by many software programs.

2. Why Metadata Exists

Metadata is not inherently bad. It depends on the context we find it and who is viewing or using it. For many purposes, especially for collaborating on documents, this information is helpful and valuable. The "Track Changes" features, versioning, document and author information and other metadata can be very useful when several people work on a document. Once the document moves out of "friendly hands," however, it can cause some damage if it is revealed, ranging from embarrassment to devastation of your case. Imagine the consequences if a document included a different settlement figure or candid comments about the strength or weakness of certain points.

3. Good Metadata and Bad Metadata

While it is tempting to think in terms of "good" metadata and "bad "metadata, it is more useful to think in terms of the amount and types of information that a particular piece of metadata carries. Some metadata is all but innocuous – file name, file type, creation date and the like. However, in certain cases, this information can turn out to be key evidence in a case. Other metadata is rich in information content – comments and revisions, for example – and you would generally not want this information to fall into someone else's hands. The context is what is important. A document might have more than one hundred metadata items associated with it. Unless you know what metadata exists, you cannot make good decisions about it.
It's also worth noting that some metadata may be altered or incorrect. For example, in the document properties, fields, such as author, may be edited and the "statistics" information for some Word documents bears no relation to reality.

B. Metadata You Might Find - Microsoft Word Example

Microsoft Word metadata gets the bulk of the attention these days, so let's take a closer look at it. Do you know how to check for metadata in Word documents? Microsoft's website is a useful resource for information about this hidden data.

1. Document Properties

Even if they are aware of metadata being created and associated with a document, many people do not realize how simple it is to view the metadata in documents. We will not go into much detail here, but spending 5 to 10 minutes under the Help menu in Word or on Google will open up new worlds for you.

For a quick example, simply open a Microsoft Word document and click on "Properties" under the "File" menu. You'll find a screen that will allow you to see the wide range of metadata that is and can be associated with a Word document. People have been embarrassed by nearly all of these items, from revealing that someone outside the firm was the original author of an agreement to showing only a few minutes of actual editing time on a document for which many hours of time was charged for preparation. Again, it's not so much the information itself – it's the context that matters.

2. Track Changes and Comments

Everyone's favorite forms of metadata are "Track Changes" and comments. An opposing party or even a judge can turn the "Track Changes" back on in a document after you thought you turned them off. There are lots of embarrassing and costly examples I'm sure that you have heard about. The sensitivity of this information is obvious.
You simply must learn how these features work and what precautions to take. Note that Office 2003 has built in some warnings and settings to help you out. Note too that you can set up Word to reveal hidden information in documents, which helps you see what is in your documents and, of course, will let you see what might be in documents that are sent to you.

3. Earlier Edits and Versions

If you are not careful about default settings, you may find other surprises. Earlier versions might be included as part of the final document you send, even if you use Adobe Acrobat to create a PDF file as a way to remove metadata. In certain situations, a Word document might contain information to allow someone else to use the "undo" feature to reveal changes and revisions.

D. Playing Offense and Defense with Metadata

Obviously, you want to be careful on this issue. It should be equally apparent that metadata can be a two-way street and that there are offensive and defensive uses of metadata.

1. Protecting Your Documents

Job one, of course, is to protect your own documents. You also want to understand what metadata is associated with your clients' documents and the implications of that metadata.
A commonly-advised approach is to strip the metadata from the documents. There are several inexpensive software tools that will remove the metadata from or "scrub" Microsoft Office documents. Remember that Excel and PowerPoint files also contain metadata and spreadsheet files might have very damaging revisions or evidence of prior calculations. Microsoft also has a free "Remove Hidden Data" tool, but it only works with the newest versions of Office and you will need to study the published list of known issues.

Other common solutions are to save Word files as PDF files, use WordPad, a stripped-down word processor in Windows, or save the file in the RTF format. Note that Adobe Acrobat can now introduce its own metadata. Scrubbing and other techniques will work, but they may not get everything and it is important to follow developments in this area. There is currently an ongoing discussion about whether Word metadata can in fact carry through to a PDF document.

2. Showing Metadata in Other Documents

Playing defense on metadata is hard work. Playing offense is much more fun. Not to give away secrets, but a number of excellent lawyers have been aware of metadata and how to read it for years. They have used metadata as one more weapon in their arsenals. As we have suggested, it takes only a few setting changes in Word, Excel or PowerPoint to reveal, on a routine basis, the metadata associated with documents you receive. Perhaps the memo you had hoped would be the "smoking gun," but was not, actually has the smoking gun hidden in it. At this point, it is hard to argue against treating the checking of metadata as a standard practice. However, it is worth noting that some commentators have opined that this practice is just plain wrong.

3. Difficult Ethical and Other Considerations

Metadata raises its own set of difficult ethical and other issues. Consider this question: what happens when I realize that I have produced or am compelled to produce documents that have damaging metadata in them? Am I compelled to affirmatively reveal it?

Given the lack of awareness of many lawyers, simply turning off the "track changes" on Word documents, which does not remove the metadata, does in fact make it invisible to unsophisticated readers. How would a court treat that approach? Is it possible to educate a judge about metadata and obtain a protective order that effectively permits the scrubbing of metadata? Should discovery requests routinely refer to production of documents in a format where metadata has not been scrubbed or altered?

I have little doubt that we will soon see court decisions on some of these questions. This area is one where you will want to track developments carefully. One good approach is to think of metadata in the same light as handwritten comments on paper documents. What would you do with the paper? Let those principles guide you in handling metadata.

E. Conclusions, Tips and Action Steps

The good news in the world of metadata is that, in many cases, you can address the primary issues relatively easily and inexpensively. The bad news is that there are a lot of metadata issues to worry about.

Let's end with three action steps for you to take in the next few days.

First, an easy one. Open up a Word document, check the properties and see what you find.

Second, write down on a piece of paper the software tool that your firm uses to scrub metadata from documents and locate and read your policy for when and how to use it. If you can't do either, find out why.

Third, take a few documents created outside your firm and try to turn on the "Track Changes" or show hidden data features. Think about what you find and decide whether you have the nerve to check your own documents.

As always, it's best to be embarrassed in private than in public. If you don't get metadata, metadata will get you.

Note: This article is one of a series of my previously-published articles that I'm making available for free on my website and incorporating into my blog. Other of my articles may be found in the Articles category archive on my blog.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 08:40 PM | Comments (2)

October 12, 2005

As If We Needed Even More Evidence of the Electronic Discovery Disconnect

Petra Perschak's article on Law.com, "E-Discovery Tops List of In-House Worries" (free registration might be required to view the article at this link, but I'm not sure about that), comes at a propitious time - just as I'm ready to launch an effort to push for more bookings of my electronic discovery seminar between now and the end of the year.

The article shares the results of a recent survey that indicates that electronic discovery concerns are at the top of the list of issues in-house counsel worry about. Some wags might say that electronic discovery concerns are not at the top of the list of issues outside counsel worry about.

I have been struck over the course of this year how huge the disconnect is between what clients (and their corporate counsel) want in terms of electronic discovery, what judges (and court personnel) want in terms of electronic discovery, and what lawyers and law firms are actually doing in terms of electronic discovery.

I'm not sure when a "tipping point" will happen, but it is going to happen, and the lawyers who don't "get" electronic discovery are going to being as worried as their clients who list electronic discovery their #1 worry are today. This survey information is further evidence that, as Elvis Costello once sang, that "clowntime is over."

The money quote:

From Robert Owen, on the interplay between record retention policies and electronic discovery: "I don't believe it a coincidence that in-house counsel raised these concerns while simultaneously voicing their distress over rising litigation costs -- in my view, the two are inseparably linked."

Compare that with a quote in the article from a lawyer talking about the relative burden of electronic discovery requests:

"I think it's over-dramatized."

In fairness, the lawyer being quoted probably said quite a bit more than that single quote, but the quote ends the article and clearly sets out the sense of disconnection between lawyers and clients on these worry-inducing issues.

Our upcoming Thinking E-Discovery column on DiscoveryResources.org will touch in some detail on this sense of disconnection. Expect to see that in a week or so.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 11:13 AM | Comments (0)

October 04, 2005

Electronic Discovery Changes Role of Corporate Counsel

Sue Reisinger's "In-House Attorneys Become IT Gatekeepers" on Law.com paints an accurate picture of the role in which many corporate counsel have reluctantly found themselves in today's electronic discovery environment. In simplest terms, corporate counsel often find themselves reluctantly playing the role of intermediary between IT departments who don't fully understand the legal issues involved in electronic discovery and outside law firms who have only rudimentary knowldge of IT practices, procedures and technologies.

As the article describes, many companies face a disaster just waiting to happen.

A few quotes will give you the flavor:

"When it comes to e-discovery, many in-house counsel still find themselves in over their heads."

"But despite electronic data's notoriety, recent surveys show that an alarming percentage of corporate attorneys and their companies still aren't up to speed. A study by Cohasset Associates Inc., a Chicago-based records management firm, showed that 46 percent of the companies surveyed don't have a formal system for holding records, and 65 percent don't include electronic documents when they retain documents."

"For e-discovery, there's a classic disconnect between technology and the law, and the law hasn't fully caught up."

"As part of these projects, many corporate counsel are having to take on yet another role: that of a liaison between the information technology staff and the company's business units. For many of them, it's meant a steep learning curve as they divine where and how the company's digital secrets are stored in vast, decentralized computer networks."

"But even with new software and new guidelines, Marathon Oil's Kerrigan thinks it could be five years before the e-discovery frenzy calms down and courts offer clear directions on what companies must produce. Until then, Kerrigan adds, e-discovery 'is like planning for Armageddon. No one knows how much is enough.'"

I got a certain sense of "sailing on the Titanic" as I read the article.

Law.com has also posted a handy list of the 14 "Sedona principles" for electronic discovery published as guidelines by the Sedona Conference. These principles reflect the input of a varietyif people interested in electronic discovery. The devil, of course, will be in the details of implementing these principles. The first difficulty will be in getting lawyers to pay more attention to electronic discovery issues. The principles have become increasingly controversial as lawyers and others have focused on what they mean in practice, rather than a aspirational guidelines.

This article is a good one for showing what a horrible mess the world of electronic discovery is becoming. I have often described electronic discovery as practiced today as a freight train roaring toward a concrete wall. Some people think I'm exaggerating for effect when I say that the way lawyers are dealing with electronic discovery today will put some companies out of business and has the potential to break the court system. However, you may find yourself a little more sympathetic to my point of view after reading this article. People who do not get up to speed on electronic discovery may pay a very heavy price.

Note well that electronic discovery is becoming a primary area for client-driven technology - almost all of the initiatives are coming from clients, not from their law firms. It also is an area where I see the potential for "fourth generation legal technology" - technologies that begin to remove lawyers from large chunks of the process and limit the work that has been traditionally done by lawyers. A close reading of Reisinger's article will reveal some hints of that starting to happen.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 07:05 AM | Comments (0)

September 19, 2005

New "Thinking E-Discovery" Column Posted

Tom, Mighell, Evan Schaefffer and I write the "Thinking E-Discovery" column on the DiscoveryResources.org site.

Our latest column, called "Rethinking Electronic Discovery and Paper Discovery in the Post-Katrina Era" has just been published.

This column finds us in a contemplative mood as we consider the ramifications of Hurricane Katrina. We consider the differences between paper and digital in a time of disaster and speculate whether events like Katrina will change thinking about electronic discovery and electronic filing.

The money quote (from Tom Mighell):

"As far as the courts are concerned, disasters like this underscore the inevitable move to electronic filing of case documents."

We really enjoy writing this column and hope that many of you will find the columns useful and helpful.

Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)

Posted by dmk at 07:29 PM | Comments (0)

September 08, 2005

LAWPRO's Electronic Discovery Special Issue Available Online

Dan Pinnington, who is way up on my list of people who should be blogging, sent me the news that the latest issue of LAWPRO magazine has been posted. This issue has an electronic discovery theme with a Canadian focus but some excellent resources for non-Canadian lawyers and others interested in e-discovery as well.

I highly recommend Peg Duncan's electronic discovery reading list in this issue.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 11:05 AM | Comments (0)

August 04, 2005

My Recommended One-volume Resource on Electronic Discovery

Here's one quick thing I have for you about electronic discovery this week.

My friend Michael Arkfeld recently sent me a copy of his book Electronic Discovery and Evidence. I ended up reading it from cover to cover - a rare experience for me with legal tratises.

Here's my conclusion after finishing the book: If you are in any way involved in electronic discovery, just go ahead and get a copy for e-discovery bookshelf. Even better, don't keep it on the shelf. Read the book.

If you you take the time to read this book, you'll jump to the head of the class among lawyers (and non-lawyers) living in the electronic discovery world. It's practical, it's easy to understand and it's reasonably compendious.

Don't think that you can sit down and read that many pages in ine setting - that's what the chapters and subchapters are for. Make a plan and work your way through this book. That will give you the foundation to make e-discovery a lot more interesting for you.

I always learn a lot from Michael. This book is no exception for me, but it is also an exceptional resource. Put it on your summer reading list. If you are a client, you might buy a copy for your favorite litigator - it might help you sleep a little better at night (especially if you have one of those lawyers who still doesn't use email).

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 09:25 PM | Comments (0)

August 02, 2005

The New Thinking E-Discovery Column Debuts

I'm pleased to announce the debut of a new electronic discovery column on DiscoveryResources.org website. The column is called "Thinking E-Discovery" and it will be a monthly column written by Tom Mighell, Evan Schaeffer and me. Our debut column is called "Disconnect and Discontent - The Electronic Discovery Landscape in Summer 2005."

We invite you to check out our new monthly column and to visit the excellent resources at DiscoveryResources.org.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 07:51 PM | Comments (0)

June 07, 2005

More Electronic Discovery Resources for June

The new June issue of the webzine Law Practice Today has an electronic discovery and computer forensics theme, along with a ton of other great articles and columns. Highly recommended, especially Daryl Mountain's article on innovation in law firms. I have a column about Internet resources on computer forensics issues.

EDD expert George Socha told me about the new Electronic Discovery Reference Model Project, which is intended to provide:

A common language for talking about electronic discovery processes;
A basis for standards and guidelines; and
A basis for design and evaluation of products and services.

DiscoveryResources.org continues to be an excellent "portal" for information about electronic discovery.

"A Gold Mine of Electronic Discovery Expertise: A Conversation Among Veterans of Electronic Discovery Battles" is now the most popular download on the Law Practice Today website.

New free EDD On-demand webinars for June from Tom O'Connor, Michael Clark and me have recently been posted.

Want to learn a heckuva lot more about electronic discovery? Consider my new half-day seminar called Preparing for the New World of Electronic Discovery: Easing Your Transition from Paper to Electronic Discovery for your firm, corporate legal department or other group.

[Originally published on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 09:53 PM | Comments (0)

May 24, 2005

An Abundance of Electronic Discovery Resources

Julia Wotipka at DiscoveryResources.org told me about the growing collection of free podcasts (webinar downloads) on electronic discovery topics now available at http://www.fiosinc.com/events/podcasts.html. Discovery Resources.org is the premier collection of resources on electronic discovery now available on the Internet. As an example, here's a PDF on the site with the proposed electronic discovery amendments to the Federal Rules.

If you like audio / webinar programming on electronic discovery, don't forget about Merrill's excellent collection of free short topical programs on specific electronic discovery topics at http://www.merrillcorp.com/law/. You'll notice several of my programs available there.

The best article I've read on practical electronic discovery issues is called A Gold Mine of Electronic Discovery Expertise: A Conversation Among Veterans of Electronic Discovery Battles and it is currently featured in the May "Best of" issue of Law Practice Today.

Mary Mack's Sound Evidence blog is the newest of the electronic discovery blogs that I've seen. It's definitely worth a look - see her coverage of the recent Morgan Stanley decision.

[Originally published on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 04:29 PM

May 03, 2005

David Coursey Explains Recent Military PDF Fiasco

You have to be careful with electronic documents or you might get surprised by the surprises in them.

The most recent example comes from the U.S. military's recent embarrassment after giving the media a redacted version of a PDF document that wasn't properly prepared and secured, leaving the blacked out portions quite revealable. Oops.

David Coursey's article, U.S. Military's PDF Fiasco Was Avoidable, gives a crystal clear explanation of how the problem arose and, even better, what you can do to avoid the problem. Highly recommended reading.

A few days ago, I was working on a Word document prepared by someone else. When I tried to save a copy, I got the alert that the document contained tracked changes. You haven't turned on that setting in Word? Shame, shame, shame. I checked to see what was causing the alert and found the document contained headers prominently using the word "CONFIDENTIAL" and clearly came from a document previously done for a third party. Oops. Fortunately for the author(s), this did not happen in a legal document, but it was embarrasing.

The next day, someone who knows all about these issues sent me a set of PowerPoint slides whose document properties indicated an author with a different name. Oops.

It's probably impossible to completely prevent these types of things from happening, but a few changes to your settings and a little training can go a long way.

I'd like to tell you what settings to change and other steps to take, but then I wouldn't have as much fun when you sent documents, would I?

Read the Coursey article. That's a mistake that you don't want to make and one that is all too easy to make.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 02:15 PM

May 02, 2005

ANNOUNCEMENT - My New Electronic Discovery Seminar Offering

Here's the essential information about a new half-day electronic discovey seminar I'm offering:

Preparing for the New World of Electronic Discovery:
Easing Your Transition from Paper to Electronic Discovery

Many electronic discovery seminars are impossibly technical or deal only with zillion dollar cases with terabytes of information. This seminar focuses on the practicing lawyer who knows that electronic discovery is coming and wants to learn what he or she realistically has to do to be prepared and take advantage of opportunities.

Dennis Kennedy is highly regarded as an electronic discovery authority who can explain the topic in "ways that practicing lawyers can understand."

This seminar is designed to make your transition to electronic discovery easier. In this half-day seminar, your group will receive a solid grounding in the practical and technical issues that matter most to litigators. Kennedy will highlight the key issues that you must understand to make a successful transition into an era of litigation where electronic discovery becomes the norm, not the exception.

By the end of the seminar, you will have a good understanding of:

Basic tools and approaches used in electronic discovery and whether they apply to your cases
Offensive and defensive uses of electronic discovery and new opportunities
A solid set of simple strategies and tactics for taking your first (or later) steps into the daunting world of electronic discovery
Practical ideas for making your life easier, winning more cases and keeping your clients happy

The seminar is divided into two sections. The first covers some necessary computer forensics fundamentals. The second takes a look at what electronic discovery will mean for you in your practice.

Part 1. Overview and Computer Forensics that Matter to Practicing Lawyers

Paper Rules Collide with an Increasingly Digital World
A Little Knowledge is a Whole Lot of Dangerous
Is Every Step You Take Traceable?
Copies Everywhere – How Windows and Other Programs Make Lots of Copies of Everything
The Potentially Embarrassing World of Metadata
The Many Places Information is Kept Today
Is a Computer Forensics Expert Always Required?
Making Good Decisions About Computer Forensics

Part 2. Transitioning to Electronic Discovery

What is the Current Landscape in Electronic Discovery? A Billion Dollar Business?
It’s Not a Pretty Picture When Paper Rules and the Digital World Collide, Is It?
When Should Electronic Discovery be Considered?
Strategic and Tactical Planning
It’s a Team Game – Making Good Decisions about Getting Good Help
Observations and Predictions
Best Tips and Action Steps

Standard Package Presentation, plus handout materials. $5,000 (plus reasonable travel fee, if applicable).

Premier Package. Presentation, plus handout materials, extended question-and-answer period, right to audiotape and/or videotape session with license to use for your internal business purposes. $10,000 (plus reasonable travel fee, if applicable).

Terms: 50% of fee due with agreement, balance due on date of presentation. 10% discount for full payment in advance.

For more information and scheduling, call 314-963-9798.

For a preview of Dennis Kennedy's approach to these topics, visit one or more of his free on-demand electronic discovery presentations provided by Merrill Corporation.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 09:31 PM

April 29, 2005

New Trend? The Electronic Discovery Special Counsel

Ron Friedmann has a great post on the nascent trend of law firms designating lawyers as "EDD special counsels" to help oversee and manage electronic discovery efforts.

He points to an article in Legal Technology News (free registration required)that discusses the idea in detail and talks about some examples of firms who are taking or considering the approach.

I wholeheartedly agree with Ron when he says, "In my view, this is a good trend. Firms would be well-served if the lawyers in these roles had not only EDD expertise, but also project management expertise. It’s not enough to know the rules of discovery and the technology - succeeding in large EDD matters also requires project management discipline."

I highlight the project management issue whenever I speak about electronic discovery. George Socha and I discuss the issue in some detail in our Electronic Discoverers column called "Looking into the Electronic Discovery Crystal Ball for 2005—Predictions, Observations and Opinions". You can also hear us talk about the topic in the archived version of our webcast called the EDD Grande Process at the DiscoveryResources.Org site.

By all means, however, if you are involved in electronic discovery, especially as a client, you will want to take the trouble of filling out the registration form for the Law Technology News article and reading the article. I guarantee it will be an eye-opener.

It may not be the money quote, but the most amazing quote in the LTN article is:

"Production goes much smoother after EDD, if not the review process," he says. "But I think [attorneys] can review faster on paper than online." (emphasis mine)

I simply don't know what to say about that last sentence.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 08:10 PM

April 28, 2005

A Few Good Electronic Discovery Articles

There are two good articles on Law.com today that present a good view of the current world of electronic discovery.

In Justices Skeptical of DOJ's Claims About Andersen Document Retention, Tony Mauro covers the arguments before the U.S. Supreme Court in the case involving Arthur Andersen's "reminder" of Enron's document retention policy that it is argued came too close in time to an investigation targeting the company. As you read the excerpts from the arguments, you'll see that the case case raises difficult questions with potentially far-reaching practical implications. How clear is a standard like "reasonable possibility of an investigation" when you are implementing a document retention policy that involves deletion of documents?

The money quote:

O'Connor too fretted about the impact on small businesses and on lawyers who advise companies. "How is a person supposed to know what to do? How is a lawyer supposed to know?" she asked.

The second artice, E-Discovery and Inevitable Litigation, attempts to answer some of the questions posed by the Arthur Andersen case. For the most part, the authors resist the impulse to scare people with potential horror stories and stick to providing solid advice and recommendations. However, after you read the other article I mentioned, I'm sure that you will be jarred when you read the sentence that begins "The policy needn't be written . . . ."

My quibbles aside, this article is a handy outline of where we are in electronic discovery today that covers issues from the points of view of both lawyers and clients.

The money quote:

6. Just as inside counsel should learn the basics of information technology, the company's information technology personnel could benefit from learning the basics of discovery obligations and the consequences of spoliation. As Zubulake V demonstrates, the more that legal personnel and information technology personnel can speak one another's language, the less likely spoliation is to occur.

7. Educate your company's regular outside counsel about the company's document-retention policies and data-retention and storage architecture. It may be beneficial for outside counsel to talk to the company's information technology personnel directly.

I may want to substitute the word "will" for "may" in that last sentence.

If you deal in any way with electronic discovery or document retention issues, you'll find it well worth your while to spend a few minutes today reading both of these articles. If your interest in e-discovery is piqued, be sure to check out Merrill's on-demand seminars on specific e-discovery topics.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 07:06 AM

April 26, 2005

Might Adobe Acrobat 7 be the Tool of Choice for Small and Low Budget Electronic Discovery Cases?

Rick Borstein of Adobe was in St. Louis last week. Over lunch, we talked about Acrobat 7 and the ways lawyers use (and don't use) Acrobat in their work.

I've been thinking a lot about a couple of topics in that conversation. One topic that fascinates me relates to electronic discovery in small cases.

I'm still trying to think this through but I'm coming to the tentative conclusion that Acrobat 7 might be a single tool that can cover almost all of the bases for a litigator with a case that has a modest number of electronic files involved in electronic discovery. By that, I mean a few files, a few hundred files, a few thousand files, perhaps more, depending on your facility with Acrobat.

My hypothesis is this: Using Acrobat, you can collect, gather, scan, catalog, search, produce, manage and even display files in court. You will have to dig deeper into the feature set than most lawyers do, but the tools are definitely there. Of course, before people panic, I'm not suggesting that the use of Acrobat will or should take the place of needed computer forensics experts and tools where they are needed.

Think about it with me. It offers the attraction of using an existing (inexpensive program) in better ways, keeping your work in one program rather than in many programs, and keeps things simple when they can be kept simple. That has a lot of appeal.

DISCLOSURE: Rick did buy lunch last week and is sending me a copy of Acrobat 7 to experiment with. However, I own Acrobat 6 and bought it myself, and would have bought version 7 if Rick hadn't been so generous. I truly do not expect this to tempt me to call things in any other way than as I see them, and would be disappointed in you if you thought that it would.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 04:20 PM

My Electronic Discovery Presentations for Merrill - New URL

I've recorded a set of on-demand seminars on electronic discovery topics for Merrill that can be accessed for free at http://www.merrillcorp.com/law/ .

The following seminars (each approximately 12 - 15 minutes, with PowerPoint slides) are currently available:

Computers and Copies - Is Every Step Traceable?
The Mysterious World of Metadata
The Many Places to Discover Data

In May and June, Merrill will add sessions on:

Developing a Team Approach to Electronic Discovery

and

Determining When to Use Electronic Discovery

I really like the format and these sessions wil give you a good introduction to the approaches that I'll be taking in a new half-day seminar on electronic discovery that I'll be announcing in the next day or two.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 04:11 PM

April 13, 2005

Something to Add to Your Electronic Discovery Requests?

Josh Rubin's Cool Hunting isn't just a great resource for learning about cool new products. Litigators can also use it to find new places to seek electronic information in their cases.

Here's a great example: what might you find in the chip embedded in the new adidas _1? I don't know, but it makes you wonder, doesn't it?

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 09:50 PM

March 24, 2005

New Electronic Discovery Blog from Mary Mack Debuts

Julia Wotipka, the driving force behind the great DiscoveryResources.org site, let me know about Mary Mack's new electronic discovery blog called Sound Evidence: E-Discovery Simplified (RSS feed). It looks like it's off to a great start. Mary is a well-respected authority in the electronic discovery world.

Electronic discovery is such a huge topic that it's always good to see more coverage of the topic.

Mary will be at BlawgConnect 2005 and you'll have the chance to congratulate her on her blog launch there.

Posted by dmk at 10:45 PM

March 07, 2005

Not Podcasts, But My Audio Seminars on Electronic Discovery Are Now Available

I'm doing some audio-video on-demand webinars for Merrill Corporation over at Merrill's Law Solutions Website. The webinars, which are free to view, are part of the "New Directions" portion of the web page.

The webinars run ten to fifteen minutes in length and cover specific areas of electronic discovery. In my sessions, I try to cover the topics in a straightforward manner that will help lawyers and non-lawyers to understand both the technical aspects of the topics and the implications of these technologies, all in the plain and direct manner that audiences have long told me that they like about my approach to these issues.

I really like this reasonably short format (audio synched to PowerPoint slides) and think that it will prove popular as Merrill creates this "knowledge base" on electronic discovery. Look for a number of other leading electronic discovery authorities, such as Tom O'Connor, to cover many of today's most important EDD topics.

My first session is called "Computers and Copies - Is Every Step Traceable?"

The second, newly available, session is called "The Mysterious World of Metadata."

The upcoming schedule of my sessions includes:

April 2005 The Many Places to Discover Data

May 2005 Developing a Team Approach to Electronic Discovery

June 2005 Determining When to Use Electronic Discovery

A special thank you Toby Younis at Merrill for putting this great series together.

Expect to see more webinars and audio programs from me. I am talking with several people about podcasts and other audio efforts, and I'd be happy to talk with you about doing these types of sessions for your company or organization.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/).]

Posted by dmk at 01:36 PM

February 24, 2005

Socha and Kennedy Look into the Electronic Discovery Crystal Ball

The latest "Electronic Discoverers" column by George Socha and me (Dennis Kennedy) has been published on the excellent DiscoveryResources.org site.

In the column, called "Looking into the Electronic Discovery Crystal Ball for 2005—Predictions, Observations and Opinions," George and I serve up our images from from our looks into the crystal ball for electronic discovery in 2005 and beyond. Perhaps not surprisingly, any look into the future use of technology by lawyers brings back memories of technology discussions from the past. Interestingly, many of the lessons you need to know have already been available for several years.

I think the money quote from the column this month might come from me, for a change:

"In many ways, George, I don't see much mystery about 2005, although I'm sure that we'll see some surprises. The winners in 2005 will be those who make the efforts to learn all that they can, develop personal relationships and potential partners with those in the electronic discovery space, and, perhaps most important, seek out and listen to the wishes, concerns and recommendations of their clients. It will be a year to get out from behind your desk and work with people rather than paper."

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Posted by dmk at 01:37 PM

January 27, 2005

Time Running Out on "EDD Supplier Landscape" Discount

Just a reminder that January 31 will be the final day to take advantage of the special discount on EDDix's "EDD Supplier Landscape" research report available for readers of DennisKennedy.Blog. It's essential information for anyone who wants to be in the know about the electronic discovery industry. Get the discount here.

Posted by dmk at 09:50 PM

January 10, 2005

Socha and Kennedy on the E-Discovery Process - Webinar - January 11

George Socha and I have been putting the finishing touches on our Fios webinar for January 11 (Tuesday) called "The EDD Grande Process."

Here's the description:

" 'One EDD grande please, de-duped with double metadata and a dash of OCR. Native only, no conversion today.'" Does electronic discovery seem a little confusing? Do you feel like you're picking items off a menu without understanding what you're getting? Join the crowd. Discover how the actual process of electronic discovery consists of a series of stages. Listen in as Dennis Kennedy and George Socha discuss the parallel paths of identification, preservation & collection, processing, review & analysis, production and presentation."

We have some great information and tips we unveil at this webinar, and a straightforward way to consider the entire e-discovery process, whether you are a novice or a seasoned electronic discovery expert.

The reference to "the crowd" in the description is an apt one - late last week registrations were nearing the triple digits. Get the relevant info and get registered at http://www.fiosinc.com/events/webcasts.html#050111.

Check out the upcoming Fios webinars while you are there and remember the excellent DiscoveryResources.org site.

See you there or, as the acronym goes, BTOBS.

Posted by dmk at 11:43 AM

January 06, 2005

Electronic Discovery Law Blog from Preston Gates and the Best Way to Ask Me to Mention Your Blog

The highly-regarded law firm, Preston Gates, has moved into the world of blogging with the nicely-implemented and useful Electronic Discovery Law blog. I've been following the blog for a while and noticed that it seemed to be achieving momentum, with more consistent and useful postings. Most important, unlike some of the large law firm blog efforts I've seen, the Electronic Discovery Law blog has an RSS feed.

I became even more impressed with the blog yesterday when I got an email from Dave Bowerman of Preston Gates about the blog. It turns out that I picked it up before its official launch, which will be on Monday.

They've actually been working on the blog in a "live" mode before they launch it. Aside from the amazing story of Sabrina Pacifici doing three months of posts before she launched BeSpacific.com, you don't hear of many bloggers taking that kind of a rigorous approach to a launch.

This bodes well for the prospects of the Electronic Discovery Law blog becoming a solid resource on electronic discovery. As you may have noticed, there is a long trail of now-defunct blogs that law firms have launched with great fanfare but quickly faded away as they learned the difficulty of sustaining a regular posting regimen.

Dave's email to me was a textbook example of how a blogger should ask other bloggers to mention or link to his or her blog. Note the following:

1. Make a positive reference to the blogger or blog from whom you request a reciprocal link or mention (for convenience, I'll call him or her the "target blogger"). In this case, the Electronic Discovery Law blog had already posted a favorable mention of one of the Electronic Discoverers columns I co-write with George Socha.

2. Show that you have visited or are a reader of the target blogger. Bonus point: remember to make a positive comment about the blog. Dave starts simply: "I came across your blog today [nicely done]." I don't ask for much - just a little pat on the back is OK.

3. Give a reason or an example of why the target blogger's audience will benefit from knowing about your blog. Ideally, write this in a way that the target blogger can copy and paste into a post about your. Example from Dave: "we're adding the finishing touches -- including a searchable case database on electronic discovery issues -- in the next day or so for our formal launch on Monday." This database sounds like a great tool.

4. Don't ask for a "reciprocal link" or, worse, demand a link to your blog. Be polite and respect the blogger's time constraints. There are two great examples in Dave's email. First, he simply says that he "wanted to alert you to the upcoming launch of our e-discovery blog." He ends with, "Please check it out when you get a chance." Anyone who has gotten a lot of requests for reciprocal links over the years will recognize that this polite of an approach is rare indeed.

5. Mention your blog's name and give the URL so that the target blogger can easily copy and paste it in a post. You'd be surprised how many people neglect to do this.

6. Add a link to the target blog on your blog before you ask for a link in return. The only minor quibble I might have with Dave's email to me when comparing it to a mythical "perfect" request is that he didn’t say that he had already linked to my blog, but (1) there already was a post about me (better than a simple blogroll link) on the blog and (2) in fairness to Dave, he was not making a reciprocal link request.

7. Consider point #3 above very carefully. If you simply want a link from a target blogger to enhance your search engine placement or drive traffic to your blog, without offering any significant benefit as a resource to the target blogger's audience, realize that you are asking for a purely economic transaction that benefits you, not the target blogger. In that case, you must treat your request accordingly and I recommend that you read my post on my reciprocal linking and blog mentioning policy.

I wish Dave and Preston Gates the best on the Electronic Discovery Law blog. It's an important area that could use more blogging coverage. I'm planning much more electronic discovery coverage in my blog and I've been talking with several people lately about launching an e-discovery blog. At the moment, Michael Arkfeld is the key electronic discovery resource in the blogosphere, but electronic discovery is a big topic that would benefit from much greater blog coverage. I'm pleased that Preston Gates, with the debut of its Electronic Discovery Law blog, is jumping into this area with an effort that holds great promise. I'm even more pleased that they have someone like Dave Bowerman who seems to know how to handle its launch in the right way.

Note: George Socha and I will be presenting a webinar on the electronic discovery process on January 11 – details at http://www.fiosinc.com/events/webcasts.html#050111.

Some other great electronic discovery resources:
DiscoveryResources.org – http://www.discoveryresources.org

Tom Mighell's Strongest Links Column on Law Practice Today - http://www.abanet.org/lpm/lpt/articles/slc07041.html

A Gold Mine of Electronic Discovery Expertise: A Conversation Among Veterans of Electronic Discovery Battles - http://www.abanet.org/lpm/lpt/articles/ftr07041.html

Michael Arkfeld's book – Electronic Discovery and Evidence

EDDix's "EDD Suppliers Landscape" – http://www.eddixllc.com (Until January 31, available at a special discount to readers of DennisKennedy.Blog – details at http://www.eddixllc.com/landing/dmk.asp ; see my comments on the report at http://www.denniskennedy.com/archives/2005_01.html#000550

For litigation support issues in general, check out LSVA.com – http://www.lsva.com

Posted by dmk at 11:14 AM

January 03, 2005

EDD Suppliers Landscape - Essential Electronic Discovery Research Report at a Special Discount for Readers of DennisKennedy.Blog

You may remember that my recent enthusiasm for a research report on electronic discovery from EDDix, LLC called “EDD Suppliers Landscape.” I’m pleased to announce a special offer and discount to readers of DennisKennedy.Blog from my friends at EDDix.

From now until noon on January 31, if you go to the special page that is linked here, you will have a unique opportunity to purchase the research report, EDD Suppliers Landscape, and a companion report, at a dramatic discount.

As I’ve mentioned before, I believe this research report is the best starting point for anyone seriously interested in learning about what is happening in the world of electronic discovery. If you work for electronic discovery vendor or consultant, this report is essential reading and will save you hours of time that you might have otherwise spent researching the industry.

Even if you aren’t an electronic discovery vendor, consultant or otherwise involved in the EDD industry, this research report contains a great deal of valuable information and analysis that, again, may save you hours of time you might otherwise spend researching the electronic discovery field.

The discount works in the following way. You go to the special page and follow the instructions there. Use the code available there on the order form for the special bundled offer and you get a substantial discount off the regular price.

I will receive the small commission for each sale generated through the special code between now and January 31, 2005. I will donate 10% of whatever commissions I receive to one or more tsunami relief organizations, most likely Doctors Without Borders, a favorite charity of mine.

If you want to learn more about the research report, you can see the review I gave it in an earlier post on my blog. There’s also more useful information at the EDDix website.

I want to thank Michael Clarke and EDDix for being able to put together the special arrangement to benefit the readers of my blog. I encourage everyone with a serious interest in what is happening in the field of electronic discovery to consider purchasing this report.

Here's the link to the special ordering page - http://www.eddixllc.com/landing/dmk.asp

A happy 2005 to all! Electronic discovery will be a HUGE issue in 2005 and this set of reports will help you get off on the right foot.

As an administrative note, I will be covering electronic discovery in a much more substantial way in 2005 and have created a new category for posts on electronic discovery.

Posted by dmk at 09:49 AM

August 24, 2004

Electronic Discovery Showcase

Although a free registration is required, it's a small price to pay for the good collection of articles on electronic discovery (the acronym for which is, somewhat mysteriously, EDD) on LawTechnologyNews this month. Good articles from George Socha, Craig Ball, Donna Payne, Albert Barsocchini, Ross Kodner and others.

Don't forget the great virtual roundtable discussion on electtronic discovery on Law Practice Today and the great set of articles and resources at DiscoveryResources.org.

Posted by dmk at 11:13 AM