Dennis Kennedy

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November 27, 2007

Bob Ambrogi on E-Discovery Blogs

Welcome to those of you visiting this blog after it was mentioned in Bob Ambrogi's excellent list of EDD blogs on Law.com. I've been a long-time fan of Bob's articles on Internet resources and his two recent articles are great updates of an article Tom Mighell and I wrote last year called "EDD-ucating Yourself About Electronic Discovery."

You will notice that this blog is not a "pure" electronic discovery blog as were most, if not all, of the other blog's on Bob's list. I write regularly about e-discovery, but probably about one every couple of weeks. I tend to focus on trends and practical issues involved in electronic discovery. I let the other bloggers cover case law and legal developments.

I will point you to the archive for the electronic discovery category for this blog. That's where you'll find my electronic discovery posts.

I'll recommend three posts to give you a flavor for my approach to EDD: "26 Electronic DIscovery Trends for 2008," "Electronic Discovery Trends and Blogs" and "The Electronic Discovery Continuum."

You will probably also enjoy the recent roundtable article I was part of called "The New Federal Rules on E-Discovery: The First 180 Days."

I've done a significant amount of writing and speaking on EDD issues over the past few years. My focus in EDD is on education. I do no EDD consulting and have tried to be an independent voice on e-discovery. I concentrate on speaking and writing, including writing white papers for EDD vendors.

I focus on three areas of e-discovery:

1. Trends.

2. Practical technology issues (e.g., metadata).

3. Client perspectives on EDD.

If you are new to this blog, I hope you find it valuable and consider subscribing to the blog's RSS feed. As I said, EDD is a just one part of the subject matter of this blog. I think you'll also find the rest of what I cover interesting enough to keep you returning.

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

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Technorati tags: legal technology electronic discovery

Posted by dmk at 10:19 PM | Comments (0)

October 23, 2007

How About 3 EDD Trends Instead of 26?

I had a couple of inquiries about my post yesterday "26 Electronic Discovery Trends for 2008."

They basically said, "of the 26, which ones do you think are the most important?" A fair question, and one that I answered in my presentation, as you will see if you look at the slides from the presentation in which I mentioned these trends. I realize that 26 is way too many, but, in part, I used that many to give a sense of the Singularity.

Here are the three that I want to highlight.

1. The most important one, to me, is the "EDD Gap" – the growing gap between the lawyers and law firms that "get" EDD and those that do not. That's the one that I think will have the most impact over time.

2. The most interesting one, to me, is "EDD in the Cloud." By "cloud," I mean cloud computing. As data is processed, stored and handled in the cloud, traditional assumptions will no longer apply and new issues will arise.

When I started to work on this list of new trends, I mentioned what I planned to do to Tom Mighell. Tom mentioned that he hadn't seen much really new in terms of EDD trends and I told him that I'd come up with something new for him. That's a bigger challenge than you might think. First,Tom is so knowledgeable that it's difficult to come up with something that he considers "new."Second, he has the habit of including the notion of "meaningful" as part of determining whether he would accept a trend as being new. For example, my mention of the Singularity probably would not pass with Tom because it's too theoretical and not practical enough. I decided that if I had 26 items on my list, I had a chance of getting Tom's approval of at least one. I picked "EDD in the cloud" as the first one to run by Tom,and I got the thumbs up. We might talk about these trends in a future podcast.

3. The one I'll watch most closely is the trend toward "technology counsel" as an evolution beyond the litigation support manager role. It also plays a part in the EDD Gap trend.

By the way, the reference in trend #24 about standards is illustrated by the announcement today of the EDRM XML standard for the e-discovery industry.

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

Get your legal technology information by audio. Check out The Kennedy-Mighell Report Podcast.

Technorati tags: legal technology electronic discovery xml edd gap trends technology counsel cloud

Posted by dmk at 09:43 PM | Comments (0)

October 22, 2007

26 Electronic Discovery Trends for 2008

I greatly enjoyed getting the opportunity last week to give the keynote presentation at the 2007 Lexis Concordance Partners in Excellence. It was a great group of people and I learned a lot about Concordance, its resellers, and related products. I was especially intrigued by the MindTalent Reader / HeadCram program and expect to write about it soon.

I used the presentation as a way to look at some of what I saw coming in the next year or two in electronic discovery. I mentioned 26 trends to consider for 2008 and beyond. These are trends I'm thinking about and, although the list is extensive, I would not say it s complete. I offer a summer of the list to get you thinking about what we might be facing in the near future of electronic discovery. A discussion starter, if you will. These ideas will find their way into my future EDD presentations.

Electronic Discovery Technology Trends for 2008 and (Most Importantly) Beyond

1. EDD as The Tail, Not the Dog - Records Management, Not EDD, is the Driver

2. Underestimating Lawyer Inertia

3. Moving Beyond Metadata and Documents - What is a Document Anymore?

4. Unpredictable Court Decisions - If You Don’t Educate Judges, Judges Will Educate You

5. Technology Outpaces Rules - Problems with Old and New Technologies

6. Changing the Focus to Reasonable Processes and Procedures

7. Data Explosion

8. Court-, Client-, Vendor-, Regulator-, or Lawyer-driven? Are Lawyers the Chokepoint?

9. The New Role of Technology Counsel

10. Unintended and Unexpected Consequences

11. EDD Information Overload and Information Underload - Is It Even Possible to Keep Up with All of This?

12. EDD in the Cloud - Web 2.0, Virtualization, and Beyond

13. The EDD Gap - Some Firms Get It and Many Firms Do Not

14. Who is the EDD Buyer Today and Tomorrow? Who Makes the Call?

15. Will We Reach EDD 2.0 Before Most Get to EDD 1.0?

16. The Coming Singularity – Kurzweil: Does the Pace Only Increase and the Complexity Only Become More Complex (Faster)?

17. The Continuing Shakeout - Expansion from Nontraditional Players

18. Hosted Services and SLAs - Negotiated Agreements

19. Eliminating the Humans? Automated Review and What Belongs in the Human Domain?

20. New Search Frontiers - Foreign Languages, Images, Audio, and Video

21. Unstructured Data - Google Expectations?

22. Outsiders Moving In – Non-EDD Players

23. EDD Goes International - What Happens When Data Located Around the World?

24. Best Practices and Standards – Standards Boards and Guidelines?

25. Integration and Platforms - Open vs. Closed?

26. Collaboration and Workflow – Project Management Gets Bigger

In the presentation, I compared the list above to the 10 items I discussed in my 2006 - 2007 EDD presentations:

1. Records Management, not EDD, is the Driver for Most Clients

2. Toward the One-Stop Shop (or the EDD General Contractor?)

3. Metadata Makes Headlines

4. The Coming Vendor Shakeout

5. Client-Driven and Court-Driven

6. Ethical Wildcards

7. Easy or Scary? Are We Making This Too Hard? Building on What We Know and Analogies

8. Project Management - EDD is All About Project Management

9. Litigation Support Managers – High Growth Area

10. One Big Thing That Must Happen – Communication - Who Must Be Talking to Each Other?

I've also put an edited version of my presentation slides up on Scribd.com, if you'd like to see the whole presentation.

For those of you who like to think about these topics (and especially those of you who have to make decisions and take actions about them), I also recommend some recent articles: Monica Bay's "Defuse Fear and Disarm EDD Vendors" part 1 and part 2 (excellent ideas and quotes, although I disagree with the tone of the title - EDD vendors are some of my favorite (and most knowledgeable) people in the EDD field); Browning Marean's "E-Discovery Looks Like Risky Business" (I note that both Browning and I use Kurzweil's notion of the Singularity); and the roundtable article "The New Federal Rules on E-Discovery: The First 180 Days."

There's much to think about in EDD as we approach the end of 2007.

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

Get your legal technology information by audio. Check out The Kennedy-Mighell Report Podcast.

Technorati tags: legal technology electronic discovery edd e-discovery trends

Posted by dmk at 08:01 PM | Comments (3)

October 15, 2007

Electronic Discovery Trends and Beyond Bullet Points

I'm giving a keynote presentation tomorrow on electronic discovery trends at a conference of electronic discovery vendors. This audience is different from my usual audience of lawyers and that has allowed me to take some creative new approaches to the topic.

I was fiddling with the introduction this evening and went back to Cliff Atkinson's approach outlined in his essential book for presenters, Beyond Bullet Points. He has a great exercise to help you organize your introduction. I worked through the exercise and was pleasantly surprised with what came out of the exercise. It's a little long and doesn't fit the recommended template, so I'm not sure that I'll use the entire thing, but I thought I'd post it here, in part to help me get it fixed in my mind by typing it out.

Let me know what you think and whether this intro makes you interested in the presentation that will follow it.

The December 2006 amendments to the Federal Rules of Civil Procedure were supposed to "change everything" about electronic discovery. As we approach the first anniversary of the amendments, the impact is probably not what anyone expected and the electronic discovery industry is caught between two polar opposite forces. On one side is the relentless, accelerating pace of technological change, especially as it impacts data, and the acceleration growth in volume and variety of data. On the other side is the stubborn reluctance of the legal profession to take more than baby steps toward dealing with data and EDD issues. Call it the irresistible force meeting the immovable object.

You, me, and everyone else in the EDD and lit support industry are caught up in and trying to navigate safely the waters of the in-between, without being swept into the whirlpools of Charybdis or eaten by the multi-headed monster of Scylla, for those who had an ancient Greek lit class in college. We know it as being caught between a rock and a hard place.

Let's face it, we struggle to keep up-to-date and have enough actionable information to deal with either force, let alone both at once. If there are opportunities, how do we recognize them and what to do we do to make them happen? Are we at a time of great opportunity, as many believe, or have we reached a crossroads where we must choose new directions, recognizing that what has served us well before might no longer be the right course?

There's no doubt that we want to deal with both forces successfully and profitably, and helping our customers help their customers and clients. We know that we cannot slow the pace of technology, no matter how much lawyers wish that that could be. That means that we need to find ways to bring lawyers further into the world of e-discovery than they have shown themselves to be comfortable. Or, perhaps, determine new roles for lawyers and others within this system.

How do we get from here to there? Working together - beginning with the conversation we start today.

It's a little too literary and I'd like it to be more conversational than "written," but I like the way the exercise has helped me focus on my themes and my story for the presentation. I highly recommend Atkiinson's book and the exercises in Chapter 2 in particular for your next presentation.

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

Get your legal technology information by audio. Check out The Kennedy-Mighell Report Podcast.

Technorati tags: legal technology electronic discovery trends presentation beyond bullet points

Posted by dmk at 10:22 PM | Comments (0)

October 08, 2007

Electronic Discovery Trends and Blogs: Thinking Aloud about Information Overload and Information Underload

The smartest decision I've made in my blogging career (other than starting this blog) was the decision I made a couple of years ago NOT to start a blog on electronic discovery.

I had the notion then that there was a need for a blog that focused on the actual technology and practical issues in e-discovery, not case law, rules and law-related news. I had the probably misguided notion that I could do exactly that. There were only a few EDD blogs around then.

I had a conversation at the time with Julia Wotipka about what she was planning at DiscoveryResources.org (a sponsor of this blog) and about Mary Mack's about-to-be-launched blog, Sound Evidence. I realized that I could contribute more to the EDD world with the Thinking E-Discovery column I've written with Tom Mighell and Evan Schaeffer on the DiscoveryResources.org site.

Instead of starting a new blog, I simply created an electronic discovery category on this blog with an archive into which all EDD posts get saved. It now contains around 70 posts on e-discovery topics that I've tagged to that category, all available in one place. It was designed to work more or less hand-in-hand with the set of electronic discovery resources on my website (on the "must get updated soon" to-do list).

Over time, I subscribed to the RSS feeds of E-discovery blogs as they've arrived on the scene. There are some excellent ones, and I'd single out Rob Robinson's Information Governance Engagement Area blog and Sharon Nelson's new Ride the Lightning blog as ones that I especially enjoy. To those who know me (and my tradition of the Blawggies), it's no surprise that I have a lot of respect for the EDD blogs that have been around for a long time.

I'm giving a presentation next week that will be an update (and a rethinking) of the Electronic Discovery Trends presentation that I've given over the last few years. That's the one where I first had my "electronic discovery 2.0" epiphany early on the morning before I gave it and wanted to rewrite the whole thing, but decided against it. I'll add some development of those ideas and a few new things to the presentation next week, but that's not the focus of this post.

As I have been researching the presentation, I've been paying attention to the posts on EDD that have been showing up in my newsreader and noticing several new EDD blogs. I was also reading Bob Ambrogi's excellent new article on EDD resources and comparing it to the article "EDD-ucating Yourself on Electronic Discovery" about EDD resources that Tom Mighell and I wrote last year, just to get a feel for the changes in the resources that have occurred in the last year. And I've also been noticing the increase in the number of EDD-related press releases I get by email lately - I must be on a lot of lists.

On a couple of days last week, I saw at least 50 items each day in my email and newsreader alone.

Now, e-discovery is a hot topic and I want to stay informed, but I guess I'm not convinced that there are 50 "news" items a day on the topic.

In other words, is getting 50 or more items a day the functional and practical equivalent of getting no items a day? At what point are you trying to drink from a firehose?

The interesting aspect of the phenomenon is that each individual blog or resource is great in its way, but, in the aggregate, they delivery something overwhelming. For me, it's even more overwhelming because I see the same case summaries and press releases in several places. One EDD article might get posted about, often excerpted, in several places over a period of time. If you follow my Google Reader Shared Items. you'll note that I'll sometimes share the same underlying item several times because I'm not sure whether it's a new item or one I've seen before.

I'm sure that people who get other print and email newsletters and publications on electronic discovery get even more information and duplication than I do.

I'm curious about how others are coping with this EDD information overload.

I've written and spoken before about the combination of information overload and information underload. In fact, my post on info underload is the post from this blog used in TechnoLawyer's BlawgWorld.

As I research my EDD presentation, I realize that I'm experiencing a classic example of information underload. I have mountains of information about EDD, yet it is very difficult to put my hands on information that's most relevant to my task at hand. The noise-to-signal is quite high. I have some strategies I use, but the problem seems to have increased lately.

Anyway, that might be my problem more than it is your problem, but I'm curious to hear if others are experiencing the same problem.

But back to my original point . . .

I'm now thinking that it was a smart move for me not to start a new e-discovery blog for several reasons, especially as events have turned out, but I still think that there's an attractive niche for an e-discovery blog that focuses on the technology and practical aspects of EDD with a unique voice and a focus on education, and that posts a few items a week. I think of Craig Ball's award-winning EDD column and how it might translate into a blog or Sharon Nelson's new blog as possible examples.

I also think that there's a place for a blog with a unique voice that steps back and offers perspective and analysis on developments in EDD a couple of times a week, rather than simply reporting and excerpting new cases and articles. For example, I like when Rob Robinson offers the occasional analytical post.

In the past couple of weeks, there have been a number of new EDD blogs that have gone live. The one that's gotten the most attention has been the Law.com EDD Update blog, with a splashy launch and some well-known Law.com-related names in electronic discovery. I subscribed to the feed immediately and was surprised by the sheer number of posts each day. Although it's seemed to have tapered off a bit, this blog really added to the duplication I experienced because it had a general coverage, multiple voices, and posts about press releases and announcements that I was getting elsewhere. On the other hand, if you are not following any other EDD blogs, it's a pretty good place to start (even though I always hesitate to recommend a blog before it's been around for a while). I'd generally suggest that people start with the Information Governance Engagement Area or the Electronic Discovery Law blog, as two examples, or some of the others Tom and I listed in our article.

At the same time, I noticed the launch of Mark Reichenbach's On the Mark blog. It's interesting to compare and contrast. On the Mark has a single voice and shows a personality even in its first few posts. There's a sense of perspective and analysis, and opinion more than just reportage. It's caught my interest, as did Sharon Nelson's blog did for the same reasons. It's worth noting, however, that some believe that the single-voiced blogs are losing ground to group blogs these days - I sure hope not. I've grown to like Dave Winer's definition of a blog as "the unedited voice of a person."

Those reading e-discovery blogs have a bit of a dilemma. How do you sort out what blogs to read and where to begin? Do you want general or specific blogs, analysis or news? How many posts, even if duplicated info, are too many? I don't have the answer, but am interested in what other people are doing?

Those starting EDD blogs have a larger dilemma. What direction do you go? Will your EDD blog be a case of "carrying coals to Newcastle" in already crowded blawgspace? What is your uniqueness and who is your audience?

We're past the early days of blogging when the few legal bloggers all knew each other and would (seriously) feel that if a legal blogger started a blog in a certain topic area, you probably would stay away from that area. There's a lot more to think about these days than ever before.

I'm fascinated to see how this stage in the evolution of law-related blogging plays out.

Adding a simple category for electronic discovery posts was the best approach for me, since I had an established blog. As I always say, let's see a thousand flowers bloom and see what all works.

I'll be curious to see next year, when Tom and I update our EDD resources article and/or Bob updates his, how much changes in the course of the next year.

In the meantime, I expect to be writing more about information overload and information underload. I found today two fascinating posts that address the notion of information underload and some of the other ideas I touch upon in this post that I highly recommend for further reading if this subject interests you.

The first is Robert Scoble's "Content Commodities" (money quote: "So, now that we’re awash in great blogs and other news, what does that all mean?"). Robert mentions his linkblog - my Google Reader Shared Items can be found here, to give you an idea of what he is referring to.

The second is Dave Pollard's "The Short Shelf Life of Information (and the Long Life of Memes)," which struck me as one of the most important and thought-provoking blog posts I've read in a while. It covers some similar topics as this post of mine, but touches on knowledge management, blog archives , and much, much more.

The money quote:

The only sustainable value you bring to an organization is what you show and teach and inspire in other people you work with.

Pollard's post gets my highest recommendation.

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

Read the blog posts and RSS feed items I find most interesting on my new linkblog or subscribe to its RSS feed High volume, but lots of things I find interesting and so might you.

Technorati tags: legal technology information underload electronic discovery edd e-discovery resources blogs edd 2.0

Posted by dmk at 08:12 PM | Comments (1)

August 13, 2007

Electronic Discovery Trend to Watch: Technology Counsel

Ron Friedmann's post, "Why Specialists Should Manage E-Discovery," provides an excellent introduction to and arguments for the use of specialized lawyers dedicated to managing electronic discovery efforts. It also points to Ron's recent white paper, "4 Ways an eDiscovery Attorney Can Make Your Firm More Successful." I highly recommend the post and the white paper.

The money quote (from the white paper):

[Fullbright & Jaworski's Laurie Weiss] notes that the translation between law and technology is key. “E-discovery lives in the space between law and technology,” she said. “And mistakes happen in that vacuum. Our e-discovery and information management practice is working to fill that vacuum.”

When I speak about trends in electronic discovery, I highlight the growing role of litigation support managers in the everyday practical aspects of electronic discovery. The time of the litigation support manger has definitely arrived.

The arrival of eDiscovery attorneys makes great sense to me, but, as Ron notes, we are in the early stages of the development and evolution of this role.

Some have also described a similar or perhaps complimentary notion of "technology counsel." I say complimentary because I've seen technology counsel talked about more in the sense of being part of a corporate law department than in the outside law firm. I've been meaning to point to the Technology Counsel blog, another excellent resource from Fios that offers coverage of this area.

Let me quote from a post on the blog on the role of the technology counsel:

Technology Counsel is both an externally facing and internally focused position that requires a strong grasp of the connection between law and technology and its effect on the corporation. This position requires an experienced legal mind as well as a strong technical background. Furthermore, the position necessitates a firm understanding of internal enterprise resources, project management, project lifecycle, and the ability to function as a resource on high-profile and high-exposure investigations, regulatory events and litigation.

Internally, the Technology Counsel (or its designate) will provide guidance on current legal trends and requirements, as well as offer legal assistance on corporate technical processes and procedures as they relate to the application of law, particularly electronic discovery processes, and the application of technology, such as content management systems, email archiving systems, VOIP systems and the like.

The first post on the Technology Counsel blog gave some more details on the technology counsel role and who might fill it:

Do you fluently translate between legal and technology? If you answered yes, you may very well be a technology counsel. Corporations nationwide are searching high and low to find these remarkable (only because I am one too) individuals to lead the charge. If you are a technology counsel, a lot of responsibility falls on your shoulders and you are soon going to be a very popular person. If you are searching for a technology counsel, look closely and carefully. These people are becoming more popular than a water fountain in the Sahara.

As an aside, I must admit that when I read descriptions of technology counsels and eDiscovery attorneys I do get an eerie feeling that the descriptions are of, well, me. However, I've generally seen the arrival of these types of positions to be a ways down the read, in part because the adoption of electronic discovery has been so slow (see "The New Federal Rules on eDiscovery: The First 180 Days" for details).

With Ron's post and the presence of the Technology Counsel blog, I now am feeling that the arrival of these types of roles in which a premium is placed on being able to understand, work, and be comfortable in the intersection of law and technology is closer that I had been thinking. It's an EDD trend to watch, and I recommend Ron's white paper as a great starting point to begin your thinking about this trend. I'll be doing a presentation in October on e-discovery trends and technology counsels will definitely find a place on one of the slides.

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

Read the blog posts and RSS feed items I find most interesting on my new linkblog or subscribe to its RSS feed.

Technorati tags: legal technology technology counsel ediscovery attorney electronic discovery edd Law2.0 <general counsel white paper

Posted by dmk at 08:12 PM | Comments (1)

August 01, 2007

Electronic Discovery: Six Months after the FRCP Amendments

Amendments to the Federal Rules of Civil Procedure became effective in December 2006 with expectations that they would constitute a sea change in electronic discovery practices in the US. Has that actually happened?

In The New Federal Rules on Electronic Discovery: The First 180 Days, John Tredennick, Craig Ball, Joe Kashi, Sharon Nelson, Browning Marean and I have a roundtable discussion about the real-world impact of these rule changes. It is informative and it will make you think. We deal with the changes we've seen (and haven't seen), native file production, state court developments, and then check our crystal balls for predictions.

There are many choices for the money quote in this excellent article, but let me give my money quote award to John Tredennick, who says:

As the volumes of native files continue to mount, there is little chance of going back to paper discovery. There aren't enough trees in the forest for one thing, let alone enough printers to spit out the paper. And, our clients would go broke trying to manage the process. No, electronic discovery is here to stay and paper discovery is on the way out. That means new techniques will have to be developed to handle the mountain of electronic content and lawyers will have to get comfortable with the fact that they will not be able to review every document.

The article is part of an excellent new issue of the ABA Law Practice Management Section's new webzine Law Technology Today, of which I am a member of editorial board. I invite you to check out the entire article because you will be rewarded with some useful, practical articles and great information.

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

Read the blog posts and RSS feed items I find most interesting on my new linkblog or subscribe to its RSS feed.

Technorati tags: legal technology FRCP electronic discovery EDD e-discovery

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

June 29, 2007

FRCP And MetaData - Avoid The Lurking E-Discovery Disaster

An excerpt of a recent white paper I wrote for e-discovery vendor Workshare has been published as an article in Metropolitan Corporate Counsel magazine and is available online here.

The article, "FRCP And MetaData - Avoid The Lurking E-Discovery Disaster," takes a look at how document metadata is addressed by the recent amendments to the Federal Rules of Civil Procedure relating to electronic discovery.

The money quote:

The new rules do not set up requirements, regulations or specific guidelines for the handling of metadata and specific metadata issues. However, they clearly leave no place for organizations and their legal teams to hide when it comes to metadata. The rules clearly bring the consideration, discussion and handling of metadata to the surface in every case, and eliminate any argument that metadata is not a part of modern discovery practice.

I suspect that most, if not all, readers of this blog already knew that, but I'm always surprised by how slowly lawyers in general are reacting to this changing reality.

And, yes, I will write white papers on a selective basis for legal technology (and other) vendors.

[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 metadata white paper

Posted by dmk at 06:53 AM | Comments (0)

May 09, 2007

FRCP and Metadata: E-Discovery White Paper

Two of the hottest issues in electronic discovery are metadata and the recent amendments to the Federal Rules of Civil Procedure. It's no surprise that one of the most interesting places in electronic discovery is at the intersection of metadata and the amendments.

Workshare, a leading e-discovery and legal discovery vendor, has just released a new white paper called "FRCP and Metadata: Avoiding the Lurking e-Discovery Disaster" that surveys this important territory, with an emphasis on the practical and a focus on the metadata management and preparation needs of organizations. Outside counsel has not taken a leadership role in metadata and EDD preparation and guidance, so it's incumbent on those charged with dealing with these issues inside organizations to take charge of this issues. The white paper has practical tips, useful charts, and suggested steps you should take. Download the white paper here.

Admittedly, I might be a little biased toward the author, who is Dennis Kennedy. Yes, that's me. Seriously, though, I enjoyed getting the chance to write the paper, work with the good people at Workshare, and to learn about the very interesting products Workshare has for addressing metadata management and other e-discovery matters.

As I wrote the paper, I became especially intrigued by their notion that we are evolving from a first generation of "metadata scrubbing" to a second generation of "metadata hygiene." It's a useful metaphor, and places the emphasis on dealing with information as a process.

I recommend the white paper (it's a free download) and welcome your feedback.

As some readers may already know, I have written a number of white papers for legal technology vendors in the past year or so. I enjoy writing white papers. To answer a frequent question I get, yes, I am available to write a limited number of white papers and welcome vendor inquiries on potential white paper projects.

[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 metadata electronic discovery workshare white paper frcp edd

Posted by dmk at 09:03 PM | Comments (0)

Electronic Discovery in Simple Auto Accident Cases

Lawyers who resist the very notion of electronic discovery often use the "simple" auto accident as an example of a case where electronic discovery is not required. I usually give a few counter-examples, but find that I do not persuade many of the lawyers who have this point of view.

The CNET.com article "Is your car spying on you?" by Robert Vamosi just might open a few eyes and cause lawyers to rethink how pervasive electronic discovery is really becoming.

The money quote:

Since 2000, most domestic automobile manufacturers, namely General Motors (GM) and Ford, have been quietly installing what are technically called Motor Vehicle Event Data Recorders (MVEDR).

You don't need to be a meteorologist to see which way the EDD wind is blowing.

The article is also a must-read for the discussion of privacy, criminal investigation, insurance, and other issues raised by these devices.

[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 06:59 AM | Comments (0)

April 29, 2007

E-Discovery Roundtable Podcast/Transcript Covers Important Territory

If you'd like to get a good survey of the big picture and trends in electronic discovery from a variety of perspectives, let me recommend that you check out a new podcast (and downloadable transcript) that Xerox has posted on the Big I, little t Blog. It's a fascinating discussion that I was invited to participate in, but, unfortunately, unfortunately was not able to attend.

Here's a representative sample from the transcript:

Mike Maziarka: It seems to me that something that we haven’t touched on is that there’s also employee training that’s necessary here. That, you know, I think part of this is we’ve become reliant on tools such as email as a conduit for communication rather than a truly what it is, a document creator. And that I think training needs to happen in organizations to say realize that when you use email and when you use some of these tools, you are creating a document that, you know, if you don’t want that to be read at some point in the future should never be created to begin with. And it’s not just true of email, but also IM is another area that we really haven’t touched on today that as you start to use these tools, you’re creating a record of something that has happened. And I think that that’s something that organizations are also going to have to address is we’ve become very reliant on these tools and maybe we need to back-off a little bit to the degree to which we use them.

Xerox's Craig Freeman certainly asks some excellent questions that the rest of us should be look for answers to. There need to be many more of these kinds of conversations. The blog offers a place for continuing the discussion through comments. Highly recommended for both the content on this topic and an example of how companies can use blogs effectively.

My only quibble is that I wish that the podcast was available as a downloadable mp3 file, but providing the transcript is an excellent idea. [UPDATE: Thank you Xerox for making the mp3 download link available at the podcast link.]

Speaking of roundtables, it's always interesting to go back to the granddaddy of all electronic discovery roundtable articles, A Gold Mine of Electronic Discovery Expertise: A Conversation Among Veterans of Electronic Discovery Battles, and see how it has stood the test of time as it approaches its third birthday. Quite well, I think. I've been toying with the idea of revisiting that article and doing a roundtable with the same people and adding even more experts. Let me know if you might be interested in reading a new version of that article or becoming one of the participants.

[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 roundtable

Posted by dmk at 08:02 PM | Comments (1)

April 04, 2007

Impact of Windows Vista on Electronic Discovery

As we wait for the wave of adoption of Windows Vista to wash over the computer landscape, we have a little time to contemplate the impact of Windows Vista on electronic discovery. Does anyone think it won't make lawyers jobs in electronic discovery even more complicated.

Litigators might start their reading on the subject with Craig Ball's "Microsoft Brings an Altered Vista to EDD." Follow that up with Jeff Beard's "Vista Shadow Copies -- Helpful to Users, Even More to EDD Recovery?" Both will give you a good start to thinking about Vista's impact on EDD. It's always good to plan ahead.

Hmmm, I wonder if "shadow copies" will get more attention on 2008 than metadata.

Electronic discovery is an ever-changing universe. What will be the roles for lawyers who won't or can't keep up with developments?

Craig Ball also talks a bit about Vista and EDD in a very good edition of the Lawyer2Lawyer podcast on Electronic Discovery Misconceptions.

[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 windows vista edd 2.0 litigation 2.0

Posted by dmk at 08:49 PM

March 29, 2007

The Vital Role of Depositions in Electronic Discovery

Check out the new Thinking E-Discovery column, "Incorporating EDD into Your Depositions - the 5Ws of EDD Depositions" from Evan Schaeffer, Tom Mighell and me, on the great DiscoveryResources.org site (a sponsor of this blog).

It's partly a little celebration of the publication of Evan's book, Deposition Strategies & Checklists, but it's primarily a unique, simple and practical exploration of the idea of how to use non-electronic techniques - deposition questions - to be successful in electronic discovery. I mainly ask the questions and Tom and Evan offer up a ton of useful advice and tips. Good stuff.

The more that you can treat EDD as evolution rather the revolution, the better off you will be. For now.

[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 deposition thinking e-discovery

Posted by dmk at 09:39 PM | Comments (0)

March 14, 2007

The Electronic Discovery Continuum - Accelerating Complexity

I've been thinking about electronic discovery lately, in large part because we've been working on the LexThink "Litigation 2.0" event. Expect more details soon and please contact me or Matt Homann and we'll get you on the mailing list.

I've also just finished a new "Thinking E-Discovery" column with Evan Schaeffer and Tom Mighell that will appear on the excellent DiscoveryResources.org website (I'm so pleased that DiscoveryResources.org is a sponsor of this blog, because I am a big fan of the site and appreciate the high quality of information collected there). The column will interest many lawyers - I haven't yet seen an article that covers the topic we've chosen. That's called a teaser. That word might also apply to the previous paragraph.

But here are two things that caught my attention today that illustrate two points I make in my EDD presentations.

1. The concepts are easy, but the details can get complicated very quickly. Yes, we all know that digital information today can be stored in a variety of places, and that you need to extend your net to capture that information. However, it will often surprise people to find where that data is stored, often right under our noses, and how something once invisible becomes so obviously an issue once someone points it out to us.

Today's example is copiers and the tip comes from David Ma's techblawg in a post called "from the 'another security headache' department" that highlights a Wired article on the storage capabilities of copiers.

The basic point: many digital copiers contain hard drives. That shouldn't be a surprise, but who really gives it much thought. Ma and Wired point out the security (and privacy) issues, but it's apparent that copiers should be added to the list of data sources to be considered and explored in electronic discovery.

2. There are so many tools and vendors in EDD that even if you make it your business to keep up with the industry, it is extremely difficult and I wonder how EDD newbies even know where to start.

Today's example comes from my favorite EDD blog, Rob Robinson's Information Governance Engagement Area, in a post called "13 Tools for eDiscovery."

Here's a simple test to help you see where you fall on the EDD continuum. Read the list of 13 tools. See if you can determine the differences between each of the tools and when you might use one rather than another. Consider how you would determine what other tools compete with each of these and how you might evaluate how to choose one tool over another. Now decide if the phrase in my title, accelerating complexity, is apt. My guess is that it is.

It's the practical implications of issues and questions such as these that I'd like to delve into at LexThink Litigation 2.0 with others who really want to understand where we are going and how best to get there. Let us know if you are interested in joining us and tell us about the topics that you are losing sleep over so we can be sure that they are on the agenda and the people you'd most like to hear speak about these topics

And on a related note, as a final thought for this post, check out JP Rangaswami of the Confused of Calcutta blog's "more musings on the opensourcing of process" - the most thought-provoking post I've seen lately, with very interesting implications for the legal, litigation,and e-discovery processes.

[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 litigation 2.0 LexThink! electronic discovery unconference Law2.0 e-discovery EDD

Posted by dmk at 08:50 PM | Comments (0)

February 13, 2007

AICPA's Top Ten Technology Initiatives - Where's the EDD?

If you've ever heard me speak about electronic discovery, you know that I always suggest that EDD is a small piece in a much larger puzzle or records management and compliance, and that others, especially other professional service providers, do not place the same emphasis and priority on EDD that lawyers do. I also conclude that there's something lawyers can learn by viewing EDD in that larger context and through the eyes of others.

Here's an excellent example. Take a look at this article on the American Institute of Certified Public Accountants list of Top Technology Initiatives for 2007. It's interesting to compare this list to my recent article on legal technology trends for 2007 (although, in fairness, I was trying to make a realistic trends that would actually happen, not an aspirational list of what should happen).

Information security tops the list (for the fifth straight year), and my search of the article finds not even one mention of electronic discovery.

However, and this is the key message, the list includes no less than five items that are part of the bigger records management framework into which electronic discovery fits: compliance, IT governance, controlling information distribution, archiving and retention, and content management.

EDD is a big issue, but it's only part of a huge set of issues. The legal profession needs to take that they see the whole forest and not just the electronic discovery trees.

The AICPA list gives an instructive look at another perspective and, as such, I recommend it to your attention.

[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 EDD 2007 AICPA trends

Posted by dmk at 12:40 PM | Comments (0)

January 25, 2007

The Biggest Unanswered Questions in Electronic Discovery

Ron Friedman does a great job of highlighting the biggest unanswered questions in electronic discovery today in a post called "Future (Pending??) E-Discovery Landmines?"

Here's the way I've phrased the issue: What will "documents" mean in a world where almost all information is held in gigantic databases? That might mean huge enterprise databases and database applications (e.g., SAP) or the world of Web 2.0 (the web as a set of database apps on the biggest database there is).

Interestingly, Ron, Tom Mighell and I recorded a webcast on electronic discovery last fall that hasn't yet been released (for reasons outside our control) where we touched on this topic for a few minutes. Ron, in his post, has done a great job of introducing and exploring the topic.

If you thought the move from paper discovery to electronic discovery was difficult, you ain't seen nothing yet.

Read Ron's post.

[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 databases Law2.0

Posted by dmk at 07:53 PM | Comments (1)

January 17, 2007

Ernie's e-Filing Primer

PDF files and Adobe Acrobat have become essential tools in every lawyer's practice, especially for litigators. PDF has gradually become a standard in both electronic filing and electronic discovery.

One of the best uses of training time and dollars for lawyers would be classes on using Acrobat. (There are other PDF creation tools, of course, but, as I like to say, do you want to take a risk that you'll be in front of a judge trying to explain why a court couldn't open your PDF file created with a free or cheap tool?)

One good example of what to learn is how to optimize file sizes. I've long been surprised when people create gigantic PDF file. I like to slim down PDF files whenever I can - people with dial-up connections and not much room on their hard drives appreciate it.

My friend, Ernest "Ernie the Attorney" Svenson has a great side blog that every lawyer who deals with PDFs should be reading. The blog is called PDF for Lawyers, and I especially recommend his recent post "With E-filing the file-size matters," which, among other things, delves into the problems that large PDF file sizes can cause.

It's an eye-opener in many ways, not the least of which in that it discusses a standard practice that actually surprised me because it goes so much against the grain of the move from analog to digital. Let me quote Ernie's description of this practice:

[W]hen they create a pleading to be filed electronically they follow this process:

Print out word processing document
Physically sign the last page where the signature line is
Scan the document back in to create a PDF
Upload the resulting PDF into the e-filing system

Well, I learn something new about the ways lawyers use technology every day.

The good news is that Ernie has some useful ideas for much better ways to use PDFs. He also explains the practical dangers of not knowing how to use this essential tool for lawyers.

I highly recommend Ernie's post.

Then take a look at the other posts on the PDF for Lawyers blog, move on to Rick Borstein's Acrobat for Legal Professionals blog. Jim Calloway lists some great Acrobat resources here. The serious student can move on to PDFZone.com and subscribe to the PDF World email newsletter. And don't forget about David Masters' classic, The Lawyer's Guide to Adobe Acrobat, Second Edition (ABA Publishing link; Amazon link

And, please, please, please, don't do that print out and scan back to PDF thing ever again.

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

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

Technorati tags: legal technology pdf pdf training e-filing electronic discovery

Posted by dmk at 08:21 PM | Comments (0)

December 12, 2006

A Handy Electronic Discovery Slide Chart

There has certainly been a flurry of frantic press releases and stories about electronic discovery since the new amendments to the Federal Rules of Civil Procedure took effect on December 1. Probably a few too many of them have a certain breathless, sky-is-falling tone to them that I don't think is very helpful.

As I say in my electronic discovery presentations, the concepts in the new rules are simple, but the details in actual practice can get complicated. However, you do need to understand the basics to move forward.

Let me recommend a free little tool that I've found quite helpful in learning about the new amendments.

It's called the Stratify Quick Guide to the Revised FRCP from one of the leading e-discovery vendors, Stratify. It's a simple, handy slide chart that offers a summary of the main rule changes (five of them) on one side, and practical tips on how to prepare on the other side. Quite useful.

David Bayer of Stratify tells me that the Quick Guide has proven to be very popular and, just in time for the holidays, Stratify has ordered up a second printing of the guide. Request your copy here.

Once you get a handle on the basics, you'll be ready to calmly dive deeper into the topic and I suggesting putting aside the frantic press releases and starting with the article Tom Mighell and I wrote called "EDD-ucating Yourself About Electronic Discovery."

[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 amendments quick guide

Posted by dmk at 09:37 PM | Comments (0)

November 02, 2006

Podcast: New E-discovery Rules in the Federal Courts

The latest stop on my recent electronic discovery speaking tour was at the deservedly highly-praised Coast to Coast podcast on the Legal Talk Network, one of the longest-running legal podcast series.

The podcast is now available and here's the description:

On December 1, 2006, new amendments to the Federal Rules of Civil Procedure will take effect and change how civil cases will be tried forever. In this Coast to Coast we discuss the e-discovery changes, what the impact will be for corporate America and how companies can prepare themselves before the new rules take effect. Join Law.com bloggers and co-hosts, J.Craig Willams and Robert Ambrogi as they get insight into the world of e-discovery from the experts, Michele C.S. Lange, Esq., staff attorney in the Electronic Evidence Services group at Kroll Ontrack Inc. and Dennis Kennedy, well-known lawyer and legal technology consultant based in St. Louis, Missouri. Don’t miss this program!

What a great group to work with! A big thank you to everyone at Coast to Coast, especially Kate Kenney, for inviting me.

If you would like to get a good overview on what you need to know about electronic discovery in the context of the upcoming amendments to the FRCP, this podcast is a great starting place. Michele is certainly one of the most knowledgeable people you will find on EDD issues and Bob and Craig did their usual great job of asking questions that focused on the issues that should be on the minds of lawyers as December 1 approaches.

If you haven't yet experimented with listening to podcasts, or don't yet understand what the whole podcast thing is about, this episode of Coast to Coast will be a great place to get introduced to the podcast phenomenon. Even better, subscribe to the Coast to Coast RSS feed and you'll get automatic notice of new programs.

[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 podcast

Posted by dmk at 09:19 PM | Comments (1)

October 24, 2006

Electronic Discovery on my Mind

I had a great time this morning recording a panel discussion with Tom Mighell and Ron Friedmann on the new amendments to the Federal Rules of Civil Procedure and the changes they will bring to electronic discovery. Thanks to Toby Younis of Merrill who came up with the idea and will soon put the discussion up on the Merrill website. Ron moderated with insightful questions and added some great comments. Tom had his usual excellent insights and I offer my usual non-traditional perspective - there's a lot to think about. If you are a litigator, I hope that you have started to put your thinking cap on.

I'll also be presenting a seminar session tomorrow on the new amendments and trends in electronic discovery.

I must admit that my initial reaction to the amendments was that there didn't seem to be much there. In fact, I didn't even single them out as a specific trend in my EDD trends presentations earlier this year, covering them as just a part of "court-directed pressure to change." Over the past few months, I've come to see how these amendments will likely prompt a sea change in how law is practiced in the U.S. Let's face it, most lawyers have successfully avoided electronic discovery until now, but things are about to change drastically. Or, at least as drastically as anything in law is likely to change.

I'll post a link when this roundtable is available.

[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 02:07 PM | Comments (0)

October 19, 2006

Litigation 2.0

Litigation 2.0. So it begins.

I told the audience at my presentation on electronic discovery trends last June at the Legal Tech West Coast conference that on the morning of my presentation I had a bit of an epiphany about where electronic discovery was going as it moved toward its next evolutionary stage. I sketched out a few notes that morning on where I saw it going. Then I had a near "Jerry Maguire" moment and, until my better judgment prevailed, nearly scrapped my prepared presentation and rewrote something new called "Electronic Discovery 2.0."

I set aside the notes and haven't yet returned to them, although you will pick up some of the ideas here and there in my recent writings on electronic discovery. They are, to me, some of the most interesting ideas on legal tech that I've had, but haven't yet written about.

Litigation 2.0

In the last few days, however, these ideas have come back to me with renewed life. In part, that's because of a conversation I had with John Thickett of the Tusker Group about their approach to outsourcing electronic discovery work and processes, and the implications of that outsourcing. In part, it comes from podcasts I've listened to featuring Andy Kessler, the author of The End of Medicine (podcast link), and C.K. Prahalad (podcast link).

But, mainly, it's from the recent conversations Matt Homann, JoAnna Forshee and I have had about the next public LexThink! conference, which have focused on the topic of a new kind of conference on electronic discovery.

Litigation 2.0

In keeping with the LexThink approach, we wanted a conference that was innovative and different, that was both intensely practical and allowed people to consider the big picture and deeper implications. Ideas moving to action.

I kept pushing us to look at what was happening in the trenches. Let's face it, the most interesting things happen at the points where different fields intersect and with the people working at those intersections. To me, that's the world of litigation support and litigation support managers – right at the point of intersection of IT, client concerns and the practice of law.

So, we've been turning over that idea and working it into form.

Litigation 2.0

Yesterday, we decided that this area would be the focus of the next public LexThink conference in early Spring 2007.

We absolutely did not want to do another electronic discovery conference that academically covered Zubulake and the new amendments to the Federal Rules of Civil Procedure. There's plenty of room for those and many of them are quite good. But that's not our territory.

We want to explore what the changing environment means for people who need to make decisions and get things done in the real world and have excellent insight into where all of this is taking us. It's best to focus on these topics in ways that help people do their work better, make their lives easier, and help them learn together and form communities with people facing the same issues.

That's a discussion that has to happen. And it needs to involve lit support managers (in law firms and corporations), lit support and electronic discovery vendors (the tool makers), the helpers and consultants, the clients, judges, and lawyers too. I've long wanted to participate in that discussion, but now I believe that we can facilitate it as well.

Litigation 2.0

As usual, the discussion came down to deciding on a name that was big enough and broad enough (and short enough) to hold what we wanted. Using "electronic discovery" or "lit support" is too limiting. We've always had the idea of "summit" floating around this project, but, yesterday, even that didn't feel right.

It's a big change in the process of happening – not necessarily moving into new territory but recognizing that the territory we inhabit has already begun to change. Think of "paradigm shift" in the classic Thomas Kuhn sense of the term.

Announcing Litigation 2.0 – the conference, the concept and the conversation.

Details to come.

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

This post brought to you by LexThink!(R) - The Legal Unconference. Ask us about private LexThink retreats and conferences for your firm, business or organization. Coming soon – a new public LexThink event. Watch for details.

Technorati tags: legal technology Litigation 2.0 LexThink! electronic discovery unconference Law 2.0 litigation support management

Posted by dmk at 07:24 PM | Comments (1)

October 18, 2006

Revisiting the Land of Legal Metadata

There's a new edition out of the Thinking E-Discovery column Tom Mighell, Evan Schaeffer and I write over on the ever-excellent DiscoveryResources.org site.

In this column, called "Metadata Revisited: Recent Developments, Correcting Common Misconceptions and Analyzing the Florida Approach," Evan and I give Tom a break to prep a trial while we revisit the murky netherworld of lawyers' reactions to metadata, especially the unusual approaches taken by the Florida Bar. We have some fun with the issue and try to teach some basics about metadata, help you avoid common metadata misconceptions, and offer some ways for you to deal with metadata issues a little better.

If the column piques your interest in electronic discovery, check out our previous columns and then take a run over to the new column Tom and I wrote about our favorite Internet resources for electronic discovery called "EDD-ucating Yourself About Electronic Discovery."

As a note, all of my blog posts on electronic discovery may be found in the electronic discovery category archive on this blog.

As I've mentioned before, Tom and I do some speaking on electronic discovery topics.

[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 metadata

Posted by dmk at 08:34 PM | Comments (0)

October 10, 2006

EDD-ucating Yourself About Electronic Discovery

The newest issue of the ABA's Law Practice Today webzine is where you'll find an article Tom Mighell and I wrote called "EDD-ucating Yourself About Electronic Discovery." (A minor problem with the byline might be fixed by the time you read this.)

In the article, Tom and I give you a long list, organized by categories, of the best Internet resources we have found on electronic discovery. It should be a handy one-stop reference that will be a great starting place for finding information about electronic discovery, including the new amendments to the Federal Rules of Civil Procedure. Tom and I assembled this list in connection with the recent presentation we gave on electronic discovery.

There's a lot happening in the world of electronic discovery and it is vital to keep up-to-date.

The money quote from our article:

Conclusion: There's a heckuva lot to learn about electronic discovery. If you are feeling a little overwhelmed by EDD, there's good reason for that feeling. However, the good news is that there are tons of very high quality free resources on EDD easily reachable via your browser. Spend some time exploring this links and you'll become well-"edducated" about EDD.

Based on a quick Google search, we believe that this article is also the first use of the term "edd-ucated" in connection with electronic discovery education. We may regret that later.

As usual, there's a lot of great stuff in this issue of Law Practice Today, but I definitely recommend Craig Ball's "Hitting the High Points of the New e-Discovery Rules," another in a series of excellent electronic discovery articles Craig has written this year.

[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 10:00 PM | Comments (0)

September 19, 2006

The Puzzling Resistance of Lawyers to Electronic Discovery

My recent comments about teaching electronic discovery to lawyers seem to have touched a nerve. I've had a number of people get in touch with me about the questions I raised. In addition, my friend and e-discovery guru Sharon Nelson raised two other important questions about EDD in a comment, namely:

1) Will there be a shake-out between those law firms (especially among the big boys) that are well-prepared to deal with electronic evidence and those that are not?

2) Will there be an awakening by corporate clients that they need to assess their own litigation readiness with respect to e-evidence AND that of their outside counsel?

I had a great conversation today about the role of litigation support managers in all this (very, very important) and what I call the puzzling resistance of lawyers to electronic discovery.

It raised another question for you to consider, as I have been for a while, but, as yet, with no good answer. I'm surprised by the passivity of litigators, traditionally a group known for aggressiveness, when it comes to electronic discovery.

Here's the question:

Does the passivity and reluctance we see in litigators an indication that protecting the quantity of billable hours, maintaining the status quo and staying in the comfort zone have become more important than winning cases?

I'll raise the question for discussion, but, believe me, I'm not the only one who has raised this issue in the past year.

Lots of good questions out there on this topic. What are your favorites? Perhaps there would be some interest in doing a LexThink event that delves into these electronic discovery questions, especially one with a focus on the role litigation support managers and electronic discovery lawyers will play in the process. If that interests you, let me know – we're working on putting together some future LexThink events.

[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 11:30 PM | Comments (3)

September 14, 2006

Educating Lawyers About Electronic Discovery

I just returned from Washington, DC, where Tom Mighell and I presented a daylong seminar on electronic discovery for a large legal department. Yes, that's the Tom Mighell of The Kennedy-Mighell Report podcast.

I've been thinking a lot lately about how best to teach lawyers about electronic discovery. It's not like you can avoid the topic. Like many lawyers, I get invitations to seminars on electronic discovery by mail or email nearly every day, especially with the December 1, 2006 effectivedate for the new amendments to the Federal Rules of Civil Procedure rapidly approaching.

Unfortunately, there's a certain sameness to most of the EDD seminars I see. I had a lawyer tell me a few months ago that he was going to scream if he went to another electronic discovery seminar where speakers went on and on about Zubulake. I know the feeling.

I've been wanting to take a very different approach. I've done a presentation a couple of times this year on trends and predictions in electronic discovery, which is innovative and challenges people to think in some new ways about electronic discovery. It's been gratifying to see how well-received that presentation has been.

I want to focus on the practical aspects of EDD, giving lawyers just enough learning about the technology so that they know how to recognize the key issues and ask the right questions. As usual, I'm more interested in applications (how you apply the new rules and technology to the issue in front of you) more so than learning academically about recent case law and abstract theories about the new rules. The concepts in EDD are easy; the devil truly is in the details.

And I wanted to present the topic with a litigator with experience who can also explain technology in a way that lawyers understand, and one who can explain the rules, the cases and the practical issues. Tom is perfect for that role and is an excellent presenter.

Our presentation, called "Electronic Discovery: The Basics and Beyond, had four parts: EDD/technology 101; the new rule; practical tips for the real world; and trends/predictions. In my mind, this is exactly what lawyers want and need to know at this point. My sense for this was confirmed as we started the session by heaing what all the lawyers in the room hoped to learn. We had everything they mentioned covered.

I was pleased with the discussion the presentation started and how we had given the lawyers in the room a good foundation and a vocabulary on which they could base that discussion.

As I tell people, my interest in electronic discovery is really one of education. I have no interest or angle in consulting or other projects. I like to teach lawyers about this subject, as does Tom, to help them think about it and address the challenges and point them to ways they can improve their practices.

So,this latest presentation was fun and rewarding. As I was telling Tom, it would be great if we could do some more of these together. I suspect we will. Let us know if you'd like to hear more about the seminar and whether it might work for your legal department or law firm.

As I prepared for the seminar, I was struck by how complicated these issues really are and the profound implications electronic discovery raises for us. Think about these three questions, which have rolled around my head for the last few days:

1. Is electronic discovery so complicated that it will drive most disputes to arbitration and other forms of alternative dispute resolution?

2. Will corporate clients and vendors working on records management "disintermediate" lawyers and limit the role of lawyers in the discovery process to as small a sliver as they can?

3. Will the response of lawyers to electronic discovery and the complexity of electronic discovery add enough additional burden to our court system to effectively break it?

[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 09:51 PM | Comments (1)

August 14, 2006

Old Computer Security Lessons from New Electronic Discovery Stories

Bob Ambrogi does a nice job of summarizing the recent story about issues arising out of Microsoft Outlook, security patches, LexisNexis's Applied Discovery tools, and the ability to see or not see certain data in certain instances. It's an important story from a number of angles.

First of all, the response letter of Scott Nagel of Applied Discovery is required reading to provide a context for the story and deserves to be as publicized as the original article. There is a big difference between email that is erased and email that is unseen, but still exists and is easily recoverable. The devil is always in the details.

It's important to get the full story and all the facts out. Too often, I hear stories about flaws in software programs and it turns out that the real issue is "operator error." In other cases, there may be problems in the software. In other cases, problems arise because of odd configurations, outdated programs and computers infected with viruses and malware.

I have no basis to form any opinion on this story involving Appllied Discovery and will wait until the investigation concludes before making any judgments. My point in this post lies in a completely different direction than the substance of the Applied Discovery issue.

I do, however, want to make one very important point. As both Nagel and Craig Ball point out, Microsoft released patches for what seems to have caused the glitch or problem perhaps as long ago as in 2004.

With zero day exploits becoming more common, it is just plain crazy for law firms (or anyone else) to be running versions of Windows and Offices that are not current on security patches. As a quick example, read this article I found today called "Hackers hunting for unpatched Microsoft computers."

In the last week alone, there have been a good number of critical security patches for both Windows and the Mac OS.

If you or your firm is not installing critical security updates, you are not only inviting and begging for attacks, you have also highly increased the odds that your computer has been compromised with malware. Having some apparently readily-resolvable e-discovery problems may be the least of your concerns.

The cavalier approach to security updates referred to in these stories causes me much more concern than the e-discovery angle of the story.

I wrote the concluding chapter to a book on information security from the ABA called "Information Security for Lawyers and Law Firms." I closed the chapter and the book with this quote from computer expert Fred Langa:

"Just as drivers who share the road must also share responsibility for safety, we all now share the same global network, and thus must regard computer security as a necessary social responsibility. To me, anyone unwilling to take simple security precautions is a major, active part of the problem."

I'm not sure how much longer we can tolerate having share the Internet with law firms who are years behind in installing security patches. I'm also finding it difficult to muster much sympathy for them when they run into problems that appear to stem from these lax practices.

Rather than over-focusing on the Applied Discovery story, you might better spend your time with a trip here, after a stop 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 electronic discovery security patches applied discovery

Posted by dmk at 08:25 PM | Comments (0)

June 23, 2006

A Primer on Proper PDF Redaction

I see that once again material that someone thought they had redacted in a PDF file has been easily exposed (story here). This happens with enough frequency that it's good to remind people that you really need to understand and follow specific directions if you want to redact materials in PDF files.

Fortunately, Adobe's Rick Borstein has done an excellent job of explaining exactly what you need to do if you want to do this type of redaction in posts here (be sure to read the comments) and here. Rick has done a great job of explaining how best to use Adobe Acrobat in the legal profession on his blog and elsewhere.

If you do any kind of redaction, you must read Rick's blog posts. There's no need for you to be featured in the next newspaper article on this type of mistake.

By the way, since a reasonable first step to take before attemting to redact a PDF would be to Google "redacting PDFs" and the first result there at the time of this post is one of Rick's posts, and you'll also find some other good resources, it is surprising that these stories are still occurring.

[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 pdf redaction redaction electronic discovery

Posted by dmk at 07:17 PM | Comments (0)

June 07, 2006

"Electronic Discovery 2.0" - My EDD Predictions Slides from LegalTech West Coast 2006

I gave a presentation yesterday on trends and predictions in electronic discovery at the LegalTech West Coast conference. I was very pleased by the response the presentation received and the number of people who asked if I would make copies of the slides available.

I've made a three-to-a-page handout view of the slides available as a PDF here (PDF 400+K).

Yesterday morning, I woke up and had a flood of new ideas on EDD and where it's going and came perilously close to revamping the entire presentation. You'll see on the slides where I added some handwritten ideas. In fact, I had a near "Jerry Maguire moment" before I came to my senses and decided that it was far better to stick with the original presentation, although I did float a number of my new ideas during the presentation yesterday.

The new ideas can be summed up in a shorthand version by the phrases "electronic discovery 2.0" or "EDD 2.0," which, if I am to believe Google, are terms which I am apparently the first to use in this way. (By the way, I'm not planning to trademark them a la the recent "Web 2.0" brouhaha, but it would be nice to give me a little attribution credit if you use the terms - and now maybe I can be like Denise Howell of "blawg" coinage fame and be known for introducing a new term.) My ideas here evolve from the Law 2.0 concept I 've written about on this blog and on the Between Lawyers blog.

I'll be writing and, I hope, speaking more about these ideas in the near future. Thanks again to my friends at Caselogistix for bringing me to LegalTech and giving me the chance to give this presentation.

I had a great time at LegalTech West Coast, but have little time to write about it because I'm off to speak tomorrow at the Missouri Solo and Small Firm Conference.

However, I must point you to my friend Marty Schwimmer's fabulous issue of Blawg Review where he raises some very pointed and fundamental questions and ponders how lawyers should help people understand fundamental legal issues in the public debate. I highly, highly recommend that you read it and think carefullly about what Marty has to say and the questions he's asking. As someone Marty asked some of the questions he raises and who answered "I don't know," even though I tried to find some of the answers, I take Marty's commentary very seriously. It's not easy to find answers to these questions. I'm disappointed to hear that some people saw Marty's questioning as a political screed - it's clearly not and the post strikes me as quite non-partisan - these are basic questions no matter what party is in power - rather than a "proper" way to do a Blawg Review. I read every word of it and was grateful for the links he provided. It's really good work. Marty raises fundamental questions about what it means to be a "nation of laws" - I'm not sure that there are many more important questions we should be trying to answer. Think about it.

Download EDD presentation slides 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 electronic discovery electronic discovery 2,0 EDD 2.0 Law2.0 slidespresentation

Posted by dmk at 08:07 PM | Comments (2)

May 31, 2006

Electronic Discovery Predictions and Trends Presentation at LegalTech WestCoast 2006

Thanks to the very nice people at Caselogistix, I'll be speaking at the LegalTech Westcoast 2006 show on the afternoon of June 5 about electronic discovery trends and predictions. The panel for this presentation consists of me, so you'll get a lot of my favorite ideas, for better or worse. I guarantee I'll give you plenty of things to think about.

This presentation will be an update of the presentation I gave back in January at LegalTech New York that was one of my best-received presentations, so I'm excited to get to give it again. There will be changes from the earlier version. In fact, quite a bit is changing in the world of electronic discovery these days.

If you are attending the show, it'd be great if you would attend my session and say hello. I'll be around the show as well and don't have much in the way of specific plans. If there's a group of bloggers who might like to get together, let me know and we can get the word out. Otherwise, I'll probably focus on seeing what's going on with vendors these days.

After LegalTech, I'll give two presentations at the always great Missouri Solo and Small Firm Conference - one on email management and information overload (and the role of blogs) and the other on inexpensive technology choices for litigators (where I'll get the chance to co-present with my friend Bob Wiss from CaseSoft).

Then . . . I looked at my calendar and saw that I have no other presentations scheduled for the near future. Of course, that means that I should be reminding you that this is a GREAT time to schedule me to speak for your group or event. However, I must admit that it's nice to have a little break from speaking this summer.

In any event, I hope to see you in Los Angeles or Missouri next week. Be sure to say hello if you see me.

[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 03:07 PM | Comments (0)

May 15, 2006

DIY Electronic Discovery

Feeling brave? Maybe it's not quite like DIY brain surgery or DIY rocket science, but maybe a lawyer might try his or her hand at do-it-yourself electronic discovery.

A great new article from computerforensics and electronic discovery expert Craig Ball called Do-It-Yourself E-Discovery raises the important question of when and how you might want to deal with certain parts of electronic discovery matters yourself.

In Craig's article, the example is email and .pst files. Craig looks at a number of software tools before deciding on dtSearch. He invites others to suggest other options, with all due warnings about understanding the "chain of custody," spoliation and other evidentiary issues inherent in any DIY approach. Do not underestimate these issues. You must understand the risks (see the quote from Craig below).

Note that you might also obtain the forensically-sound copy you need and then have a second copy prepared that you will use these DIY tools on to screen the copy without compromising the evidence of the other copy.

I suggest taking a look at some free and inexpensive tools and some tools you may already own - the X1 search tool, Adobe Acrobat 7 (import the PST files into Outlook and then use Acrobat to save the folders as PDF files to work with) or the free Copernic Desktop search tool,. You might even try to import the PST file and then export it out of Outlook into an Access file. There may be other creative options. I'm looking forward to hearing about them.

Remember that (1) you might get the opposing party to agree to using these simple and cheap tools and get a judge's approval as an alternative to full-blown approaches in appropriate cases, (2) these tools might help you see whether use of more expensive and more elaborate tools will be needed, or (3) you might use these tools for other screening purposes.

As Craig says:

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats.

"Guard the chain of custody," I want to warn. "Don't mess up the metadata! Leave this stuff to the experts!"

But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, "Sorry, the courts are closed to you because you can't afford e-discovery experts."

This is an intriguing, potentially quite important, topic that deserves some serious thought and attention. I congratulate Craig for raising the topic and look forward to the discussion it raises. For example, see Evan Schaeffer's post 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 electronic discovery do-it-yourself

Posted by dmk at 03:22 PM |