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 | Comments (0)

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.

Register 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: 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.

Register 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: 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/)]

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 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/)]

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: 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/)]

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: 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/)]

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: 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/)]

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: 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/)]

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: 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/)]

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.

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.

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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.

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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/)]

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.

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/)]

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.

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/)]

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.

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/)]

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.

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/)]

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.

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)]

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.

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/)]

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.

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/)]

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.

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/)]

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.

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/)

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.

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/)]

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.

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/)]

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.

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/)]

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.

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.

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 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