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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about legal technology at Dennis Kennedy’s Legal Technology Central page.
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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 (https://www.denniskennedy.com/blog/)]
Learn more about legal technology at Dennis Kennedy’s Legal Technology Central page.
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