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Dennis Kennedy on Electronic Discovery

Dennis KennedyDennisKennedy.com LLC1276 Bridle RoadSt. Louis, MO 63119dmk@denniskennedy.com(314) 963-9798http://www.denniskennedy.comBlog: http://www.denniskennedy.com/blog/

Table of Contents

Unexpected Benefits of Electronic Discovery.................................2

Computers and Copies - Is Every Step You Take Traceable?..........4

The Mysterious World of Metadata.................................................8

The Many Places to Discover Data................................................12

Developing a Team Approach to Electronic Discovery..................16

Determining When to Use Electronic Discovery...........................21

Seven Easy Ways for Law Firms to Throw Away Money

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25

Dennis Kennedy – Biography........................................................26

Preparing for the New World of Electronic Discovery..................27

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Unexpected Benefits of Electronic Discovery

In some ways, we are in the “Perry Mason” era of electronic discovery in the minds of manylawyers. You hear a lot of talk about using electronic discovery to find the “smoking gun” emailor the single bit of data that breaks a case. While there are some great stories along these lines,they are not everyday occurrences in day-to-day world of electronic discovery. Focusing on thesearch for the “smoking gun” may cause you to overlook some of the many other benefits of electronic discovery, many of which fall into the “better, faster, cheaper” category.

1. Efficiency.

Many electronic discovery veterans tell us that using electronic discovery hasmade them more efficient. They can reduce the time they need to speed on mundane matters andfree up more time for higher-level activities. There are plenty of examples of millions of documents being put together in databases and being processed for discovery in a matter of dayswhen the same work would have required months and an army of associates in the past. We areseeing more and more examples today of what many lawyers have long hoped computerprocessing would bring to them.

2. Cost Savings.

Time savings also mean cost savings. One example I know involved adiscovery process that was estimated to take six months and cost $500,000 in legal fees. UsingLEXIS’s DolphinSearch tool, the same work was done in three weeks, at a third of the cost(primarily software fees), and the supervising attorney felt that the software found at least twokey things that would probably have been overlooked if the manual process had been used. Doyour clients hate to see you charging them for copies by the page as you copy and recopy thesame documents? Lawyers are finding many new ways to cut costs and save money as sidebenefits of electronic discovery.

3. Effectiveness.

Many lawyers also point out that electronic discovery makes them moreeffective. I mentioned that some of today’s search tools can actually find relevant documents by“pattern recognition,” “machine learning,” and “conceptual search” that might otherwise bemissed. Because electronic discovery requests can bring in massive amounts of data, it becomesimperative to consider carefully what information you really want to deal with before you makethe request. Some litigators say that moving away from a standard or routine approach not onlysaves them from being overwhelmed, but it also results in more focused and effective discovery.They target what they need from the beginning rather than risk a “fishing expedition” thatbecomes an information tsunami.

4. Collaboration.

Electronic discovery, by its nature, requires collaboration between lawyersand their clients, lawyers and their experts, lawyers and the courts, and even lawyers and theiropposing counsel. Electronic discovery poses large and difficult issues, both legal andpractically. Good people are sincerely working to address these issues in ways that make sense. Ifind the people working in electronic discovery to be generous and helpful, and willing to listenand work together. Now, that’s not always the case, of course, but electronic discovery will offeryou the chance to work more closely with clients and others.

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5. Better Client Service.

The likely consequence of electronic discovery is improved clientservice. This means better client relationships and better long-term business prospects. Part of this will arise out of the need for increased teamwork. Passing cost savings to clients, moving toalternative fee arrangements because of new efficiencies, and simply moving cases faster will allmake you more appreciated by your clients.

6. Technology Catalyst.

Some firms are finding that electronic discovery becomes the catalystfor the move to today’s level of litigation technology. When faced with oncoming electronicdiscovery, a smart law firm will step back and look at the entire litigation practice. If you need toupgrade hardware, software or infrastructure for electronic discovery needs, then it just makesgood sense to consider putting together the whole litigation technology platform. If you haveyour discovery information in electronic form, then you can readily use it with presentationtechnology in the courtroom. Real-time transcription, audio and video are short steps away.Rethinking your litigator’s needs for hardware (Laptops, Tablet PCs, wireless networking,PDAs) also makes sense in this context. Add CaseMap into the mix and suddenly the electronicdiscovery project you dreaded turns into the catalyst that turns your firm into a state-of-the-artlitigation practice. As the say, every problem is also an opportunity.

7. Better Organization.

Some lawyers also report that electronic discovery has the unintendedconsequence of making them more organized in the presentation of their cases. Being able towork electronically, especially with some of the litigation software available today, results in amore streamlined, persuasive and creative presentation of a case, something that pleases judge, jury and client.Don’t limit your view of electronic discovery to the home runs and smoking guns. There areplenty of solid singles you can hit and they will add up to some great victories for you.