You are on page 1of 31

Dennis Kennedy on Electronic Discovery

Dennis Kennedy
DennisKennedy.com LLC
1276 Bridle Road
St. Louis, MO 63119
dmk@denniskennedy.com
(314) 963-9798
http://www.denniskennedy.com
Blog: 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 ...............25

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

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

© 2005, Dennis Kennedy


contact: dmk@denniskennedy.com or (314) 963-9798

Unexpected Benefits of Electronic Discovery

In some ways, we are in the “Perry Mason” era of electronic discovery in the minds of many
lawyers. You hear a lot of talk about using electronic discovery to find the “smoking gun” email
or 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 the
search 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 has
made them more efficient. They can reduce the time they need to speed on mundane matters and
free 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 days
when the same work would have required months and an army of associates in the past. We are
seeing more and more examples today of what many lawyers have long hoped computer
processing would bring to them.

2. Cost Savings. Time savings also mean cost savings. One example I know involved a
discovery process that was estimated to take six months and cost $500,000 in legal fees. Using
LEXIS’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 two
key things that would probably have been overlooked if the manual process had been used. Do
your clients hate to see you charging them for copies by the page as you copy and recopy the
same documents? Lawyers are finding many new ways to cut costs and save money as side
benefits of electronic discovery.

3. Effectiveness. Many lawyers also point out that electronic discovery makes them more
effective. 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 be
missed. Because electronic discovery requests can bring in massive amounts of data, it becomes
imperative to consider carefully what information you really want to deal with before you make
the request. Some litigators say that moving away from a standard or routine approach not only
saves 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” that
becomes an information tsunami.

4. Collaboration. Electronic discovery, by its nature, requires collaboration between lawyers


and their clients, lawyers and their experts, lawyers and the courts, and even lawyers and their
opposing counsel. Electronic discovery poses large and difficult issues, both legal and
practically. Good people are sincerely working to address these issues in ways that make sense. I
find the people working in electronic discovery to be generous and helpful, and willing to listen
and work together. Now, that’s not always the case, of course, but electronic discovery will offer
you the chance to work more closely with clients and others.

© 2005, Dennis Kennedy 2 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

5. Better Client Service. The likely consequence of electronic discovery is improved client
service. 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 to
alternative fee arrangements because of new efficiencies, and simply moving cases faster will all
make you more appreciated by your clients.

6. Technology Catalyst. Some firms are finding that electronic discovery becomes the catalyst
for the move to today’s level of litigation technology. When faced with oncoming electronic
discovery, a smart law firm will step back and look at the entire litigation practice. If you need to
upgrade hardware, software or infrastructure for electronic discovery needs, then it just makes
good sense to consider putting together the whole litigation technology platform. If you have
your discovery information in electronic form, then you can readily use it with presentation
technology 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 electronic
discovery project you dreaded turns into the catalyst that turns your firm into a state-of-the-art
litigation practice. As the say, every problem is also an opportunity.

7. Better Organization. Some lawyers also report that electronic discovery has the unintended
consequence of making them more organized in the presentation of their cases. Being able to
work electronically, especially with some of the litigation software available today, results in a
more 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 are
plenty of solid singles you can hit and they will add up to some great victories for you.

© 2005, Dennis Kennedy 3 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Computers and Copies - Is Every Step You Take Traceable?


As you learn about computer forensics, your perspective begins to change in some important
ways. You start with the idea that information can be hidden and deleted. Before too long, you
begin to question whether any information can ever be truly deleted or hidden from a well-
trained computer forensics expert or even from someone who knows where to look.

Is every step you take on a computer traceable? I've talked with a good number of computer
forensics experts and law enforcement officers who insist that the answer is yes.

The reason is only partly due to their tools and skills. Perhaps more important is the way
computer programs create many copies of the same data, a variety of logs and caches, and other
duplicate versions of files. Knowing how this happens, what data is copied and where it is stored
can help you be much more effective in looking for electronic evidence and identifying the files
you need.

Why Lawyers Need to Learn Basics of Document Storage


While lawyers don't need to become computer experts, a familiarity with the ways computer
software, especially Windows, handles and stores data will greatly increase your effectiveness in
conducting electronic discovery. I'm not talking about learning about zeroes and ones and
electromagnetic principles. My focus is on what happens when you save files or log on and log
off a computer network.

There are three important areas for lawyers to have a basic understanding of these processes,
each of which will help them to effectively handle electronic discovery.

1. Understand What Happens Automatically.


First, you want to have a basic understanding of the types of copies, logs and other files that any
number of programs might create automatically. It's not as simple as it seems when you click
"save" on the file menu. Temporary files, old versions, backup copies and other files containing
copies of the document or information about it may be created. Log information, journals and
other information about documents also might be created automatically. I'll be giving you a few
examples later in this article.

2. Understand Where to Look and Where to Expect to Find Information


Second, if you understand the processes, you will better understand the places to look for
information that might seem to be hidden. Perhaps more important, you will develop a good
sense for the richest, high value targets for the types of information you need. By effectively
targeting this information, you can streamline your efforts, make very productive first passes at
electronic data and, in some cases, put a great deal of pressure on the opposing party by
identifying damaging information early in the discovery process.

3. Appreciate the Difficulty of "Deleting" Evidence


Third, it is important for you to understand how truly difficult it is to delete files or to modify

© 2005, Dennis Kennedy 4 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

files without leaving copies of the original versions of the files. When you appreciate the
processes that someone who wants to hide all traces must contend with, you will find it much
easier to counsel and convince your clients to resist the urge to cover their tracks.

Windows Makes Many Copies of Everything


Let's talk about Microsoft Windows. It's a good example for us because its use is so universal.
Windows doesn't do anything all that different from any other operating system, network
software or other complex program. It make lots of copies and stores them all over the place.

1. Why Windows Makes Lots of Copies of Everything


I want to emphasize that making lots of copies is not another piece of some vast Microsoft
conspiracy to rule the world. Most of the copies serve to make life easier for the user. Cached
items make Internet browsing faster. Backup copies allow us to undo errors, recover from
malfunctions and generally work more efficiently. Logs and journals serve similar purposes. The
ability to keep a record of versions, authors, revisions and timestamps also enhance our use of
the computer.

All of this largely occurs automatically in the background without the need for our input. As with
many things in computing, with each advantage comes an equal and opposite disadvantage. In
this case, Windows creates many ways for our steps to be traced.

2. Example: Internet Browsing History


As an example, let's turn to something we are familiar with – browsing on the Internet. Think
about your use of your browser to view this presentation. In what ways might you be leaving
traces of every web page you visited from the time you opened the browser until the time you
close it?

Let's start with the easy ones. If you like a page and want to return to it, you might create a
favorite or a bookmark. Your browser is also likely to create a history folder that keeps a record
of every page you visited today, this week or even this month. Some web pages place a small file
called a cookie on your hard drive to identify you when you return to the page. Your browser
will also keep copies of the files and graphics on each page you visit in a cache or temporary
Internet files folder. Each of these files and copies are made to improve your Internet experience.

These files are kept in folders that might be hidden, but, even if they are not hidden, their
locations are not obvious. There may even be multiple locations of the same information. You
can delete them, but they may remain in your recycle bin. Even if you delete them from the
recycle bin, there is an extremely important file called the index.dat file that keeps a record of
them.

If you take one thing from this article, it should be the importance of the index.dat file, or files,
as there may be several of them, as a treasure chest in tracking behavior on the Internet. If you
try to delete the index.dat file, you will find that you can't - at least not without special tools. In
most cases, this file will unlock the secrets of a user's Internet adventures. If someone has gone
to the trouble of altering or deleting it, it should raise a red flag.

© 2005, Dennis Kennedy 5 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

But, that's not all. Copies of web pages and other information might be found in your "Recent
Documents," and various log files. Your regular data backups may keep copies. Other programs,
include spyware, may also be recording copies of documents or even keystrokes. Your browser's
autocomplete feature and other options may also be keeping a record of pages you visit. It takes a
lot of tweaking of settings to keep your browser from making all kinds of copies and recording
information about your activities.

This information is the easy stuff that a knowledgeable person can find before turning to
computer forensics tools. If you haven't already done so, take some time to learn about what
information is being recorded about your web surfing. It's a good example and it gives you a
flavor for what might be happening in other programs.

3. Network Effects and Implications for Finding and Producing Electronic


Evidence
I always like to stress the notion of "network effects." Consider the copying and record-keeping
that takes place behind the scenes on a stand-alone computer. On a networked computer, those
processes are multiplied simply as part of the necessary administration of a network. Add to that
backup processes, security and tracking measures and a variety of other systems, and you will
see the potential for huge numbers of copies. Now imagine trying to find and delete all of them
successfully.

Standard Approaches to Finding Information


How might you take advantage of the information that is routinely stored and copied in the
background by today's computers? First and foremost, you should use your understanding of the
processes to help you construct your standard approaches to finding information. Not all cases
require every tool in the advanced electronic arsenal.

1. Starting Points
Consider the processes I've outlined as you start to screen and evaluate cases. How do people use
their computers? What programs do they use? What are the default processes? What might you
learn quickly about your client's data files or the opposing party's files that can get your case off
to a roaring start or even ramp up the pressure for a settlement?

It's surprising how many people do not realize that deleted files remain in the Recycle Bin. If you
get a copy of a Recycle Bin in your request for production, take a look at the Recycle Bin folder
for any user. Evidence of clumsy attempts to delete files may allow you to ask for sanctions or
provide leverage to negotiate a favorable settlement.

2. High-impact Targets
Use your knowledge about likely duplicate copies and other automatically recorded information
to identify and go after potentially high-impact targets. Records of Internet activities may be vital
in certain types of cases. Evidence of renamed files or earlier versions may lead to essential
information. The better you understand the programs someone uses and the processes that are
likely to be in effect, the better focused your discovery will be.

© 2005, Dennis Kennedy 6 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Here's an important lesson to learn. Maybe it's the Perry Mason thing, but computer forensics
and electronic discovery often are described as ways to find the "smoking gun." Maybe you will
be one of the lucky ones who can do that.

If you talk to the lawyers, judges and others with experience in electronic discovery, however,
the talk is rarely about "smoking guns." Instead, you hear about efficiency, streamlining cases,
getting to the heart of the matter quickly and similar terms. Understanding why there might be
high-impact targets can turn your discovery efforts into a rifle shot rather than a shotgun blast.

3. What Can Be Found Without Computer Forensics Magic


Keep in mind that the information I talked about can be uncovered without special tools or
computer forensics magic. Think in terms of ways to screen evidence, find the easy stuff and
even ways to keep costs down before resorting to a full-blown forensics investigation. Working
with a forensics consultant, you may well be able to put together a limited price, limited scope
look at the most likely targets and use that information to determine whether further detailed
investigation is required or whether it does not make much sense to spend the money if results
are unlikely. In addition, finding embarrassing information relating to either side of the case may
help move the case to a quick resolution.

Conclusion, Tips and Action Steps


Even if it doesn’t make sense to become a computer forensics expert, it does make sense to learn
some of the basic elements of data storage and their implications for electronic discovery. Today,
we looked at simple, yet not widely known concept – that computers create many copies of files
and data in files – and explored the significant implications those processes may have. Even a
basic understanding may help you do a much better job in the discovery process.

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

First, try to locate the history, cookies and temporary Internet files folders on your computer.
Take a careful look at what is there.

Second, locate the index.dat file on your computer. Try to delete it and see what happens. Then
read an article or two about the index.dat file and what it does.

Third, review your standard electronic discovery requests for production and see if you can
improve them based on what you've learned in this article.

Is every step you take on your computer traceable? It may well be. What are the implications for
your practice?

© 2005, Dennis Kennedy 7 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

The Mysterious World of Metadata


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.

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.

© 2005, Dennis Kennedy 8 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

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.

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.

© 2005, Dennis Kennedy 9 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

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.

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.

© 2005, Dennis Kennedy 10 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

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 better to be embarrassed in private than it is to be embarrassed in public. If you


don't get metadata, metadata will get you.

© 2005, Dennis Kennedy 11 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

The Many Places to Discover Data


Today, you can make a mistake either being too broad or too narrow in your electronic discovery
requests. Lawyers are struggling with the scope of electronic discovery and determining where to
look and what to request. Because requesting “everything” electronic is an approach that will get
you into trouble with judges, let's consider where people store their data these days and the
implications for electronic discovery. It’s not just the office PC and its hard drive anymore.

The Old View


To the extent that electronic discovery has been around long enough that we can talk about "old
views" and "new views," let's take a look at what the "old view" of looking at electronic data.

The old view is a simple one, with a limited focus. It reflects an almost nostalgic view of
computing that, unfortunately, does not reflect today's realities.

There are three major elements of this traditional approach: (1) emphasis on data on hard drives,
(2) consideration of a limited number of file types and places data might be kept, and (3) what I
call a document-centric approach. Let's' consider each in turn.

1. Emphasis on Hard Drives


Many lawyers think of electronic data as data that is physically located on one or more hard
drives. For them, getting the hard drive or its contents is the primary goal in electronic discovery.
Today's networked environments challenge that assumption in many ways.

2. Limited Number of Places and Types of Files


In the old view, lawyers considered a limited range of places to look for files – primarily where
hard drives are located – and also a limited number of types of files – the common word
processing, email and spreadsheet formats.
In the simple example, a lawyer would look for relevant data on the hard drive of a company's
network server, the hard drives of certain desktop computers and perhaps the hard drives of some
laptop computers. In some cases, floppy disks or CDs would be considered. The focus of the
investigation would be on files with common formats.

3. Document-centric Approach
Under the old view, there is a close analogy with the paper world. The emphasis is on documents
and structured data worked on by humans.

The Current Views


The contemporary view reflects a changing world where networks are everywhere and the notion
of "systems" precludes simple ideas like focusing on devices or hard drives. There is an
expansive and expanding concept of where data are stored and the types of file formats that may
come into play. Finally, the analogy of the paper world has begun to break down, especially as
audio and video files become more common.

© 2005, Dennis Kennedy 12 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

1. Focus on Networks and Extended Notion of "System"


The one computer, one hard drive model has little application in the current world of networking.
People tend to work at one or more nodes on one or more networks. With a network user name
and password, I can work anywhere at any time using a growing number of devices. In the
"software as services" model, the notion of using a program locally disappears and a user might
not even save data on a local hard drive. In fact, he or she may be using a device that doesn't
even have a hard drive. It's a world of networks, often overlapping networks, that changes and
evolves, operated and maintained by many different providers.

2. A "Many Worlds" View - Growing Number of Places Data is Stored


Where might we find data stored today? We have what I call a "many worlds" approach to data
storage. It creates a nightmare for IT departments at many companies, and it also changes the
electronic discovery model. There may be multiple network servers, backup servers and even
disaster recovery centers. We have laptop computers, PDAs, cell phones, convergent devices,
iPods, digital cameras and other ways to access and store data. Home computers routinely hold
work-related information. We've moved from a world of floppy disks and CDs to one of DVDs,
flash drives, memory cards, portable hard drives, memory sticks and other places data are
regularly kept. Online workspaces, Internet backup services and other service providers may also
store key data.

3. Moving Beyond Paper Concepts - Versions and Backups, Audio, Video


and IM
The analogies to the paper world and documents are starting to break down. We see increasing
use of audio, video and instant messaging. Documents may exist in many versions. Studies
suggest that 93% of the documents businesses create today will never be printed. Today's
difficulties include determining what electronic version is the original and what electronic
version is the final version. The classic document-centric approach simply does not work any
more.

Developing Strategies
The evolution in computing requires changes in how you approach electronic discovery. In
simplest terms, you want to adopt strategies that recognize the realities of how people and
businesses work with and store data in our networked world.

There are three key questions that you will want to ask yourself to help you arrive at an
appropriate strategy.

1. How much or how little data do I want to request?

2. What are the best places to look for data in the case at hand?

3. How can I be sure that I do not miss or overlook rich data targets?

© 2005, Dennis Kennedy 13 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

1. Goldilocks Approach - Not Too Much and Not Too Little


Most lawyers use one of two traditional approaches to electronic discovery – ask for everything
or, most commonly, ask for nothing. Increasingly, judges will not tolerate the former and clients
and malpractice insurance carriers will not tolerate the latter.

I recommend the Goldilocks approach – not too much, not too little, but just right. There will be
a range of middle ground approaches in every case. Your job is to kind a place in that range that
works best for that case.

In this respect, as in many others, it is important to see electronic discovery not as some new and
independent process, but as simply a subset of good discovery practices. Asking the same
questions, determining the context and understanding how information is created, managed and
stored will be valuable components of your strategy. You'd like to get as little information as you
need to work with and still have all the information you need for your case.

2. Targeting the Most Likely Places


What are the best places to look for data these days? It depends on the case that you have. A one
size fits all approach probably will not work today, if it ever really did so.

Consider how the organization works with its data. If you are looking at key individuals, you will
want to find out how these individuals actually work. Do they email copies of documents to
themselves to work on? Do they use a laptop or PDA? Do they burn CDs or DVDs? Do they use
a USB flash drive? In the latter case, trying to discover a laptop’s hard drive while neglecting a
flash drive may well cause you to miss key information. Look for the devices that people use to
transfer data from machine to machine.

Consider the term “network” in an expansive sense. There may be multiple servers in multiple
locations. There will be network backups, and there may well be archives, storage servers, off-
site backup and even full disaster recovery installations that mirror the actual network setups. I
marvel at anyone who thinks that they can be certain of deleting every copy of a document in
that type of setting. Even then, unused or discarded hard drives may well retain the data
originally stored on them, potentially making it available for retrieval.

3. Not Overlooking Rich Targets


A danger today is overlooking rich data targets. You might overlook likely places, ask the wrong
questions, not follow-up on answers you get or simply be unaware of technology developments.

Some lawyers use dated wording in their requests for production. One danger is to request only
“magnetic storage devices,” because CDs and DVDs are “optical storage devices.” You really
have to pay attention to developments in technology. Who would have thought about iPods, cell
phones, Blackberries, home network servers, and even Internet storage sites as repositories of
key data even a year or so ago? What might be next?

If you work hard at trying to understand how organizations and people work with and store data,
you can identify rich targets. For example, many people today use USB flash drives and MP3
players to transfer data from computer to computer. These drives will often contain the

© 2005, Dennis Kennedy 14 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

information a person considers most valuable or early drafts of documents. Do you request
copies of what's on these devices?

Conclusions, Tips and Action Steps


I want to help you open your eyes to the myriads of ways people store and transport data today.
You will want to keep on top of these issues for three reasons. First, you want to know what to
ask deponents so that you can tailor your requests so that you have a higher likelihood of finding
the documents and data you want from an opponent. Second, you want to protect your client
when complying with poorly drafted requests from opposing counsel. Third, you want to be able
to explain to a judge why your requests are reasonable and likely to produce relevant evidence.
A good exercise for you to do today is to take a close look at all of the places you store your
data, write them down on a list and determine whether you would find all of that data using your
current electronic discovery strategies. That simple exercise can be a real eye-opener.

© 2005, Dennis Kennedy 15 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Developing a Team Approach to Electronic Discovery


Electronic discovery is a team sport. It is also a process. Lawyers who are new to electronic
discovery struggle with simply getting a grip on what electronic discovery actually means,
especially when different people use the term to refer to different aspects of the process.

You will best understand your role when you understand the process. The role of the lawyer is
moving toward that of project manager or team leader. Unless you pay attention to the process,
however, you run the risk of being moved out of the coach's chair and well down the bench.

The Stages of Electronic Discovery


I've broken the process of electronic discovery into eight stages. My approach is meant to be
illustrative, not as definitive. It is designed to help you think about what you do in the process.

1. Understanding the Different Stages is Vital


You must be aware of the different stages because the lawyer's role may change in each stage
and different people may be involved in different stages.

2. My Approach to Describing the Stages


Here are the eight stages I like to consider:

Assessment. You, or someone else with experience and expertise, must look at and consider
the appropriateness, scope, approach and direction of e-discovery in your case, all within the
context of all other required discovery.

Project Management. Your normal litigation team is likely to add outside experts, vendors
and service providers to your core group of associates and paralegals.

Computer Forensics. Forensics involves the detective and technical skills and tools to find
information, recover data, establish the chain of custody and the like.

Conversion and Storage. You will always have an issue of how you will store that data. In
most cases, you are also going to have an issue of how you handle native files or convert files to
formats you can work with.

Records Management. Depending on the amount of data that you have, the number of people
who will be accessing the data, and the safeguards and other procedures you will require, you
may find that you need involve a vendor or service with expertise in managing huge databases or
other collections of data on an ongoing basis.

Search. I call the sixth step "Search," although you may prefer that it be called "Find." Search is
a step that people traditionally picture when they think about e-discovery.

© 2005, Dennis Kennedy 16 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Integration. No matter how sophisticated or simple your approach is, at a certain point you
want to incorporate your e-discovery work back into your standard litigation management tools.

Using E-Discovery for Trial Presentation Once we get information in a digital format, it
becomes easy to use it in a variety of ways.

3. What Needs to Be Done in Each Stage


Assessment. Assessment is an ongoing process as much as it is a stage. You want to make
electronic discovery fit into the whole discovery context and determine what you have and what
needs to get done.

Project Management. E-discovery places a premium on a litigator's people and project


management skills, which may not be your strengths. You may well rely on your computer
forensics person, software vendor or other consultant to put together a good team to work on
your case.

Computer Forensics. In some simple cases, you may not need the services of a computer
forensics expert, if you know what you are doing and chain of custody and other issues are
unlikely to arise. Although many people see the role of the forensics expert as the discoverer of
hidden or deleted data, I think that they play more valuable roles in helping you assess the richest
discovery targets and ensuring that evidence is properly handled. The past experiences of a good
computer forensicist may prove invaluable in helping you conduct smart and cost-effective e-
discovery.

Conversion and Storage. You see a wide variety of approaches today. There is a good
argument to be made for the Application Service Provider ("ASP") model. An ASP is a third
party who stores your information on its server and makes the information fully available to you
over the Internet by means of your browser. The benefits are that you do not have to purchase
and maintain hardware and software, the ASP takes care of security, backup and related matters,
the ASP will likely provide significant search and management tools, and everyone on your team
can access the data over the Internet from anywhere. There are important implications in each
approach that you must consider.

Records Management. With luck, your conversion and storage provider will also be the one
who can handle ongoing records management. However, especially in cases involving huge
amounts of data, you may find that the provider who could handle forensics and conversion
simply does not have the facilities or personnel to handle ongoing records management.

Search. At this stage, you are looking to dig into the electronic data that you have and find out
what is there. You might use simple search tools, look through directories by hand or use one or
more of the sophisticated tools. It will depend on the amount of data that you have, what you are
looking for, the potential ability of search programs to find data or patterns that humans might
overlook, and a variety of other factors, not the least of which will be your budget.

© 2005, Dennis Kennedy 17 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Integration. No matter how sophisticated or simple your approach is, at a certain point you
want to incorporate your e-discovery work back into your standard litigation management tools.
Your goal is ultimately to use your e-discovery results effectively in handling your case.

Using E-Discovery for Trial Presentation E-discovery materials may be easily


incorporated into PowerPoint slides or used in connection with the specialized trial presentation
software. It would be a shame to invest in the e-discovery process and neglect to use the
electronic data that you have to prepare compelling presentation materials for the judge and jury.

Who Plays What Role


Unless you step up to taking the lead role in electronic discovery, you should expect that other
vendors and your clients will be more than happy to begin to squeeze you out of the process.
This trend has enormous implications for the litigation practice.

1. No One Stop Shop


Here's a key point. Do not expect to find a one-stop shop for all electronic discovery purposes.
Almost all vendors will stick with what they do best and recommend or bring in other vendors
for different parts of the process. For example, most computer forensics firms will not handle
records management, and vice versa.

2. Matching Expertise to the Appropriate Stage and Tasks


You will want to match the right people to the right jobs. Watch out for over-reaching or any
place where someone is put in a position to do work outside of or beyond their expertise. It's a
cliché to say that a chain is only as strong as its weakest link, but that will be the case.

3. Putting Together a Team


Do you want to be a leader or a follower? How can you lead if you don't assemble the team
yourself? Someone will be taking charge of the team selection.

E-discovery reminds me of something management guru Tom Peters has said about the
"Hollywood model" of project teams. Much as in the production of movies, you will independent
experts assemble and re-assemble into teams for different projects based on different needs and
required skill-sets. Some may work together on a regular basis, much like a great director and his
or her cinematographer, but others may work together only every now and then. The idea is to
assemble the right team for the right project, based on their experience of working together.

Lawyer as Project Manager


Trial lawyers like to try cases. The skills and traits that make a great trial lawyer may prove
deadly in leading teams and managing projects. Management skills are so important in the
electronic discovery process that you should try to put ego aside and identify and use your best
project managers.

© 2005, Dennis Kennedy 18 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

1. Warning: Lawyers Cannot Do it All


If you look again at the eight stages, you'll see a single individual cannot master each and every
stage. I caution you to accept that and remember that you cannot do it all. You can learn enough
to mange each stage, but you will not be able to understand all of the details of each stage. You
will need to become comfortable with this idea.

2. Leading a Team
It may be "back to school" days for you. Lawyers are notorious for their poor people and people
management skills, as well as their feeling that they can know and do everything. There are born
leaders, but most leaders learn their skills. You are well-advised to take some training classes,
even to consider coaching or other exercises.

3. What Roles a Lawyer Wants to Keep


I maintain that there is a convergence of factors that will result in efforts to minimize the role,
and costs, of lawyers in the electronic discovery process. You can fight to win every battle or
you can try to be smart and win the war.

The major effort will be to relegate lawyers to administrative, tightly-defined work that is
required to be performed by lawyers under applicable practice of law definitions. If you want to
get a feel for these efforts, talk to estate planning lawyers in large law firms.

Your decision will be whether that's the type of work that you want to do or whether you want an
important seat at the decision-making table. It's the difference between the lawyer as technician
and the lawyer as advisor or counselor. You'll have to decide what you want and then consider
what approaches you want to take in each stage to move you toward the results you want.

Conclusions, Tips and Action Steps


Here are three action steps for you to try in the next few days.

First, outline the current stages you have in your existing electronic discovery projects. Compare
them to my list. Can you improve my list or are you missing key elements?

Second, pick an electronic discovery project. Who are the leader and manager of that project?
Does he or she know that? Does everyone else know that? Jot down three things that you would
like to see happen so that everyone understands what's going on in project management.

Third, take an estate planning lawyer to lunch. Ask him or her about how accountants, banks and
financial planners have changed the role of lawyers over the past ten years.

You will, however, want to take advantage of the experience, expertise and, perhaps most
important, connections of the providers you do use to create the appropriate team for your case.
In all cases, your job will be to learn as much as you can, asking all the questions you can, so that
you can be prepared as we increasingly and inevitably move to a world where e-discovery is the

© 2005, Dennis Kennedy 19 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

rule, not the exception. No matter what your approach is, it is vital that the lawyer's judgment be
exercised in each step of the process.

© 2005, Dennis Kennedy 20 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Determining When to Use Electronic Discovery

What is the current “lay of the land” in electronic discovery? I like to describe the current
electronic discovery scene as a movement toward the middle ground or to a happy medium.
Talking to any computer forensic or electronic discovery consultant invariably results in hearing
surprise at how rarely lawyers engage in electronic discovery. On the other hand, some lawyers
overcompensate by going way overboard on electronic discovery requests, angering opponents
and judges. You might think in terms of the Goldilocks and the Three Bears story: too much, too
little and just right. Unfortunately, it’s not that easy, because finding “just right” can prove to be
quite difficult.

Challenging Current Assumptions


Many lawyers see electronic discovery as a world only for big firms, big cases and big numbers
of documents. Are those assumptions correct? I don't think they are. In fact, if I were a litigation
client and found that my lawyers planned no electronic discovery, I’d look for new lawyers.

1. Big Firm Only?


Experts have long argued that technology can level the playing field for small firms and solos
going up against big firms. Electronic discovery fits that that model. In fact, electronic discovery
offers many advantages for smaller firms over traditional paper discovery methods, not the least
of which is the ability to store and carry all of the documents in your case on your laptop
computer or a CD. Computer forensics companies can and will work on budgets acceptable to
small firms.

2. Big Case Only?


What about family law cases? What about business fraud or partnership valuation disputes? In
what cases can you say for certain that email, address books and financial information or
spreadsheets are categorically not relevant?

3. Million Document Cases Only?


Consider the following:

1. A sexual harassment claim based on the sending of a few emails.

2. A divorce case where a spouse keeps records in Quicken or a spreadsheet.

3. A valuation dispute where a party keeps a spreadsheet with all kinds of financial "what if"
calculations.

In each case, there are only a few documents, but electronic discovery might pay huge dividends.

© 2005, Dennis Kennedy 21 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

EDD is a Subset of Discovery, Not a Separate Category


The one lesson that you must learn from this article is that electronic discovery is merely a subset
of discovery in general. If you think of electronic discovery in that context, you will do quite
well. If you treat it as a separate category, you run some large risks.

1. The Dangers of Treating Electronic Discovery as Optional


Many lawyers think of electronic discovery as an option to consider in certain cases. After
reading this article, you should resolve never to think in those terms again. Your overall
discovery approach in certain cases may not require production of electronic materials, but your
decision should be made in the context of determining what information you need, not whether it
is in electronic form.

The big danger in treating electronic discovery as optional is that you simply will miss relevant
information because of the process decision that you make. Can you seriously say that email is
irrelevant to your case?

A second fallacy of the optional approach is that it ignores the fact that when opposing counsel
goes after electronic data, you are in an electronic discovery posture, whether you want to be or
not. The sooner you start thinking about the electronic component of discovery and how you will
handle it, the better.

2. Email and Spreadsheets - You Think They Are Not Relevant?!

Let me harp on the topic of email and spreadsheets for a moment. You lose a case where you
have done no discovery of email. Assume that you later find yourself in the witness chair
answering a question about your "strategy" of not looking at the other side's email. How
comfortable do you feel?

I've heard plenty of arguments rationalizing the practice of not considering email in the discovery
process. I'm not convinced by any of them.

Similarly, many businesses live by spreadsheets. Do you routinely get those?

Are you relying on people to have printed out all important documents? Is that realistic when
studies suggest that 93% of the documents created today will never make it into print form?

3. Going Back to Basics - Where Do I Find the Most Important Relevant


Information
Let me say it again: electronic discovery should be seen as an essential component of discovery
in general. Some suggest referring to something called "modern discovery" to reduce the
emphasis on "electronic."

Some lawyers overcompensate by requesting everything imaginable, resulting in a variety of


problems. First, the sheer volume of what they receive may overwhelm them if they are not
prepared to handle it. Second, they often anger opponents and judges, while inviting a similar

© 2005, Dennis Kennedy 22 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

onerous request in return. Third, an overbroad electronic discovery request may get you
sanctioned.

The key point is always finding the most important relevant information. Electronic discovery
can force you to go back to the basics and ask this question. That's a good thing.

If Not Now, When?


I've heard many lawyers say that they simply haven't had an electronic discovery case come into
the office yet. I call this the "waiting for the right case" fallacy. It can be dangerous in many
different ways.

1. The Logical Fallacy of Waiting for the Right Case


You should recognize that when someone talks about not having the right case, they are treating
electronic discovery as a separate, optional mode of discovery. That will not work. It may mean
that they have missed important evidence in the cases they do have. It may mean that they are
neglecting to develop skills, procedures and contacts that will be necessary to handle the "right
case" when it comes in the door.

Perhaps most important, it means that they are inadequately prepared for when an opposing party
drags them kicking and screaming into the world of electronic discovery before they are
prepared.

Wouldn't it be a good idea to get your feet wet with some easy cases before that "right case" falls
into your lap? Of course, others might think that the right case has already come along, but you
hadn't recognized it.

2. Client Expectations and Demands


Have you talked with your clients about their expectations and what they consider appropriate in
electronic discovery? Well, wouldn't that be a good place to start?

Consider my opening comments. If, God forbid, I were involved in a litigation matter and my
lawyers were not planning to do any electronic discovery, I'd be looking for new lawyers. Expect
many business clients to feel the same way. Why are you trying cases with one hand tied behind
your back?

Business clients are increasingly concerned about the technology practices of their law firms,
especially in the area of records management. Sarbanes Oxley, HIPAA and other regulatory
requirements have emphasized these concerns. Clients will expect you to deal with their
information systems. They also will be reluctant to tolerate expensive, inefficient discovery
practices using the classic "throw a bunch of associates into a warehouse of paper documents in
cardboard boxes" approach. They want their law firms to show them better ways to do these
things that help them control costs.

© 2005, Dennis Kennedy 23 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

3. Preparing for the Inevitable


I've touched on the issue of the involuntary entry into electronic discovery. It's just a matter of
time before you are on the receiving end of a request for production of electronic data. Is an
answer that this isn't the right case for electronic discovery going to work?

How will you respond to that request? How will you produce and work with electronic data? Is
learning how to handle it on the fly the best approach? A burying your head in the sand approach
doesn't work well for ostriches, and it won't work well for you.

Conclusions, Tips and Action Steps


Here are three action steps for you to take in the next few days.

First, ask yourself if you are waiting for the "right case" to come along. Jot down the
characteristics that will allow you to know that you have found the right case. Decide whether
you are fooling yourself.

Second, pick up the file of case you are working on. Write down some of the things that you
might reasonably expect to find in email in relation to that case. Are you looking at email in that
case? Are there other cases where you might expect to find similar things?

Third, call a client and talk to them generally about the way they use and store data and what
there expectations in general are for electronic discovery and how they expect you to conduct it.
Take good notes, study them and develop a "to-do" list.

It's time to challenge your assumptions about electronic discovery and to develop some
strategies. Most important, however, it's time to treat electronic discovery as an essential
component of modern discovery, not as a separate, optional item for certain cases.

© 2005, Dennis Kennedy 24 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Seven Easy Ways for Law Firms to Throw Away Money on


Technology

Technology spending has grown to comprise 4 to 6% of the average law firm’s budget. The sad
story is that many law firms, despite their best plans and intentions, are throwing many of their
technology dollars down the drain.

I am talking about real money, not potential savings, not speculative productivity numbers, and
not “potential” new clients from web sites or “knowledge management” efforts. There are many
ways to toss away money on technology. How many of the following ways to waste your budget
apply to you?

1. Do not align technology projects with business goals. The results: projects that never get
completed or produce any benefit and diversion of dollars away from great projects to pet
projects.

2. Do not quantify and measure results. The results: projects with costs far greater than any
benefits and lingering projects on which the plug should have been pulled long ago.

3. Buy new software when you already own software that would perform the task you
require. The result: your losses compound as you add training costs for the new software to the
costs of the software.

4. Be unaware of all of the legal software alternatives. The results: paying too much for
software that sort of fits your needs when better options exist.

5. Do not explore volume licensing options and, in particular, new Microsoft licensing
options. The results: paying a higher price than necessary and, in the case of Microsoft products,
incurring unnecessary upgrade costs.

6. Have a technology committee without experience, expertise and a clearly-defined


mission. The result: even simple projects take years to make decisions about and IT staff
operates on its own.

7. Fail to educate your IT staff about your legal practice and the unique issues involved.
The results: ill-advised decisions, misdirected priorities and technology gaffes involving clients.

And these seven ways represent just the tip of the iceberg. You may also be putting money into
technologies already known to be on their way out, locking up your data in proprietary systems,
buying overpowered or underpowered hardware, paying insufficient attention to security and
antivirus issues, and creating difficulties in communicating with clients. You have to find a lot of
extra hours to bill to be able to toss away that kind of money. The best route, of course, is to take
a good hard look at what you may be doing wrong, refocus your efforts and save some of the
money you are wasting to use for technology that helps you.

© 2005, Dennis Kennedy 25 www.denniskennedy.com


contact: dmk@denniskennedy.com or (314) 963-9798

Dennis Kennedy – Biography


Dennis Kennedy (dmk@denniskennedy.com) is a well-known legal technology expert and
computer lawyer based in St. Louis, Missouri. He is a co-author of the column, "The Electronic
Discovers" on practical electronic discovery tips, techniques and developments at
DiscoveryResources.org. An award-winning author and a frequent speaker, he was named the
2001 TechnoLawyer of the Year by TechnoLawyer.com for his role in promoting the use of
technology in the practice of law.

His blog (http://www.denniskennedy.com/blog/) and web page,


(http://www.denniskennedy.com/) are highly regarded resources on technology law and legal
technology topics. He has recently collected one hundred of his articles in an e-Book called
“Dennis Kennedy’s Legal Technology Primer” and is one the founding members of the Between
Lawyers blog (http://www.corante.com/blog/) and LexThink!™ (http://www.lexthink.com).

Dennis is currently a member of the American Bar Association Law Practice Management
Section's Council and Webzine Board, and served on the boards for ABA TECHSHOW 2004
and 2005. He graduated cum laude from the Georgetown University Law Center in 1983 and
magna cum laude from Wabash College in 1980. Dennis was born and raised in Garrett, Indiana.

© 2005, Dennis Kennedy 26 www.denniskennedy.com


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

Many electronic discovery seminars are impossibly The seminar is divided into two sections. The first
technical or deal only with zillion dollar cases with covers some computer forensics fundamentals.
terabytes of information. This seminar focuses on The second takes a look at what electronic
the practicing lawyer who knows that electronic discovery will mean for you in your practice.
discovery is coming and wants to learn what he or
Part 1. Overview and Computer Forensics that
she realistically has to do to be prepared and take
Matter to Practicing Lawyers
advantage of opportunities.
• Paper Rules Collide with an Increasingly Digital World
Dennis Kennedy is highly regarded as an
• A Little Knowledge is a Whole Lot of Dangerous
electronic discovery authority who can explain the
topic in "ways that practicing lawyers can • Is Every Step You Take Traceable?
understand."
• Copies Everywhere – How Windows and Other
Programs Make Lots of Copies of Everything
This seminar is designed to make your transition to
electronic discovery easier. In this half-day • The Potentially Embarrassing World of Metadata
seminar, your group will receive a solid grounding • The Many Places Information is Kept Today
in the practical and technical issues that matter
most to litigators. Kennedy will highlight the key • Is a Computer Forensics Expert Always Required?
issues that you must understand to make a • Making Good Decisions About Computer Forensics
successful transition into an era of litigation where
electronic discovery becomes the norm, not the Part 2. Transitioning to Electronic Discovery
exception. • What is the Current Landscape in Electronic
Discovery? A Billion Dollar Business?
By the end of the seminar, you will have a good
understanding of: • It’s Not a Pretty Picture When Paper Rules and the
Digital World Collide, Is It?
• Basic tools and approaches used in electronic • When Should Electronic Discovery be Considered?
discovery and whether they apply to your cases • Strategic and Tactical Planning
• Offensive and defensive uses of electronic • It’s a Team Game – Making Good Decisions about
discovery and new opportunities Getting Good Help
• A solid set of simple strategies and tactics for • Observations and Predictions
taking your first (or later) steps into the daunting
• Best Tips and Action Steps
world of electronic discovery
---------------------------------------------------------
• Practical ideas for making your life easier,
winning more cases and keeping your clients Dennis Kennedy is a legal technology expert and
happy technology lawyer based in St. Louis. An award-winning
author and a frequent speaker, Kennedy has published
many articles on electronic discovery and
• Standard Package. Presentation, plus handout litigation technology topics. He co-authors
materials. $5,000 (plus reasonable travel fee, if a regular electronic discovery column
applicable) called "The Electronic Discoverers" at
DiscoveryResources.org and his
• Premier Package. Presentation, plus handout roundtable article, "A Gold Mine of
materials, extended question-and-answer Electronic Discovery Expertise," has been
period, right to audiotape and/or videotape widely recognized as one of the most valuable practical
session with license to use for your internal articles on electronic discovery. Kennedy graduated cum
business purposes. $10,000 (plus reasonable laude from the Georgetown University Law Center in
travel fee, if applicable). 1983 and has practiced law in large, medium and small
firm settings.
Terms: 50% of fee due with agreement, balance due on date of
presentation. 10% discount for full payment in advance. For a free preview of Kennedy's style and approach, visit his
online sessions at http://wwwmerillcorp.com/law/.

To Schedule a Seminar: Call (314) 963-9798 or email dmk@denniskennedy.com


For more information, visit http://www.denniskennedy.com.
Frequently Asked Questions About Dennis Kennedy’s Seminar:

Preparing for the New World of Electronic Discovery


Easing Your Transition from Paper to Electronic Discovery

Is this seminar for the advanced level or the I can talk about technology and how lawyers work. I
introductory level? leave the rules and cases for other presenters. If you
want to cover both topics in one day, I'd be happy to
Introductory. I take a very practical approach. The work with you to pair up with another presenter to
seminar is designed to give you a solid foundation on cover the substantive law issues. Of course, I'd want
which to build and a point from which you can learn to present in the morning.
what you need to learn with confidence.
You are known as a futurist and as someone who
I honestly think that lawyers and others with is ahead of the curve on legal technology. Should
advanced technology skills will learn a significant that concern me?
amount, but you will see from the description that the
sessions are geared to the introductory level. Of course it should. However, I'm better known as
someone who understands and can explain what
What audiences is this seminar designed for? technology can do to help lawyers in the actual
practice of law. The focus of this seminar is entirely
This seminar is intended to be a private seminar for a practical, except for a few minutes when I'll take a
law firm, corporate legal department, law firm gentle look into the crystal ball, but even that is done
litigation department or other business or with the implications for lawyers, not for technology,
organization. in mind.

In the classic situation, your attendees would gather If you want to hear me talk about futurist and
in a conference room setting first thing one morning advanced legal tech issues, you will certainly have
and the seminar would run until lunch time. If you plenty of other opportunities. That's not what this
bring me some lunch, I'll happily answer questions all seminar is about. This seminar is designed to TEACH
through lunch and until I am ready to go to the airport you about electronic discovery, with a focus on the
or you are ready to kick me out, whichever comes technology issues you must understand.
first.
What will I learn by the end of this seminar?
This is not meant to be a presentation I would do at a
public seminar, although it could be adapted for that First, I think that you'll learn that, while this subject is
purpose. difficult, it is not impossible, and you certainly capable
of starting to take the steps you need to manage
Just to confirm: you will be coming to our these issues. You'll get a good sense of perspective
location to provide this seminar, right? and direction.

Yes. This seminar is designed to be one that "comes By the end of the seminar, you will have a good
to you" not one where you come to it. understanding of:

Are you talking about the technologies of • Basic tools and approaches used in electronic
electronic discovery or the rules and cases? discovery and whether they apply to your cases

I've attended presentations that try to cover both the • Offensive and defensive uses of electronic
technology and the rules and, frankly, it creates discovery and new opportunities
information overload. It's too much to cover both • A solid set of simple strategies and tactics for
topics and it will overwhelm you. taking your first (or later) steps into the daunting
world of electronic discovery

To Schedule a Seminar: Call (314) 963-9798 or email dmk@denniskennedy.com


For more information, visit http://www.denniskennedy.com.
• Practical ideas for making your life easier, topics for the past two years. I have written a national
winning more cases and keeping your clients column on practical electronic discovery issues for
happy the past year. I speak on a national basis, have done
webinars and other Internet audio programs on
electronic discovery for the past year and was the
Who should attend? track leader for the electronic discovery track at the
American Bar Association's TECHSHOW 2005.
Everyone in your firm, department or organization
who will be involved in electronic discovery. Does What makes you better than other companies
that mean all lawyers, young and old? Yes. doing this?
Paralegals? Yes. IT staff? Absolutely! Executives and
decision-makers? Yes. Secretaries and I’m interested in TEACHING you about these topics.
administrative staff? Yes. Outside vendors you work Everyone who is familiar with me and my work tells
with? Yes. me unequivocally that no one can explain the
practical technology issues involved in electronic
One of my messages is that electronic discovery is a discovery to lawyers better than I can. I've now heard
team game. Your whole team will benefit from this that enough that I've even started to believe it.
seminar and the follow-up discussions it will
engender. Seriously, though, I've seen and heard lots of
seminars on electronic discovery. I find almost all of
Why are you providing this seminar? the presentations too esoteric, too technical and too
impractical. If I'm saying that presentations are too
I think it will help many people who are struggling technical, then you know that there's a problem for
with the onslaught on electronic discovery issues. It the average lawyer.
pains me to see a state of affairs where very few
lawyers understand even the basic technology issues I've also been a lawyer for more than twenty years. I
involved in electronic discovery, judges struggle with tell you honestly what I think, based on my
electronic discovery issues with little guidance from experiences and my knowledge of the electronic
lawyers, electronic discovery vendors with great discovery industry. If I don't know the answer to your
products and services cannot sell these products and question, I'll tell you "I don't know" and see what I can
services to suspicious lawyers who have insufficient find out for you. I don't bluff – experienced trial
understanding about them, clients are over-charged, lawyers know instantaneously when someone is
under-served and poorly represented because bluffing. I respect your work, your practice, your time
lawyers avoid or lack the capability to perform and your clients, and want to help you have an easier
electronic discovery, and the legal system continues time, win more cases, have happier clients and enjoy
to get gunked up with even more delay. If I can do practicing law.
even a little bit to help prevent what appears to me to
be an electronic discovery freight train headed for a Finally, providing this seminar is my only dog in the
wall from happening, I think I'll have made a major electronic discovery hunt. I have no plans to do any
contribution to the legal system. consulting or provide other services. I know many
people in the EDD business and am happy to refer
In other words, I have talked to a lot of great, highly you to the ones I think are best. I've got no other
professional lawyers who are desperately trying to angle than providing you with your money's worth for
learn what they need to know about electronic this seminar and helping you learn what I think you
discovery and have become increasingly concerned need to learn to get going on electronic discovery
that they will be able to do so. They struggle with the right now. This seminar is all about EDUCATION.
first steps and forming the foundation from which to
learn more. I can help them with this. What do attendees of your seminars say about
you?
How long have you been doing this?
After I present on these topics, lawyers say to me
I have been giving well-received and highly-regarded that I've given them exactly what the things they
presentations on legal technology and litigation wanted to know and, I think this is the most important
technology topics for nearly ten years, averaging thing, I've given them a few concrete action steps that
around one presentation per month over that time. I they can do to get started. The subject seems like
have done presentations on electronic discovery

To Schedule a Seminar: Call (314) 963-9798 or email dmk@denniskennedy.com


For more information, visit http://www.denniskennedy.com.
one that they can master and they are not is too expensive. That's OK – I can't win them all. On
overwhelmed by the idea of completing converting the other hand, if you don’t get a solid understanding
their practice over a weekend or facing disaster of electronic discovery, you won’t be winning many of
(which is one way this topic is presented to lawyers – your future cases either. I’ll let you decide.
I prefer a kinder and gentler approach – a solid
nudge, if you will, not a big push toward a cliff). Based on the programs I've seen and heard, you will
get an excellent value. If you choose the
What does the seminar cost? audiotape/videotape option, you will be able to reuse
the seminar internally as much as you wish. That's a
• Standard Package. Presentation, plus handout very cost-effective approach.
materials. $5,000 (plus reasonable travel fee, if
applicable) My pricing is based on the delivery of the seminar,
not the number of attendees. If you have more
• Premier Package. Presentation, plus handout attendees, the price-per-attendee will drop.
materials, extended question-and-answer period,
right to audiotape and/or videotape session with Unlike many other seminars, I'm coming to your
license to use for your internal business location and you and your colleagues are not
purposes. $10,000 (plus reasonable travel fee, if traveling to an off-site seminar. Factor in the relevant
applicable). travel and other cost savings and the more efficient
use of time and I think you will see good value in my
• Terms: 50% of fee due with agreement, balance approach.
due on date of presentation. 10% discount for full
payment in advance. Are CLE credits available for this seminar?

Note: As part of the introduction of this seminar, I will Based on my experience in this industry and
give you a 10% discount if you book a seminar before involvement with other seminars, I believe that this
September 1, 2005 (regardless of when seminar is seminar will qualify for CLE credit in most, if not all,
actually given). jurisdictions. I will work with you to ensure that we
take appropriate steps to secure CLE credits.
What do you mean by "reasonable travel fee"? Because I'll provide a substantial amount of handout
materials, I don't anticipate too many difficulties in
Whatever we can agree on in advance will be arranging for CLE credit, but, as anyone who is
reasonable for travel. I'll fly in the day before the involved in continuing education will tell you, the rules
presentation and fly out the afternoon or evening of can be a little quirky.
the presentation. I'll require one night in a reasonably
good and convenient hotel, coach airfare is fine with Will attendees be receiving substantial handout
me, ground travel and parking and other out-of- materials?
pockets we agree on. If you buy the premier
package, I'll probably waive the travel fee. If I can Hmm, you must not be familiar with the number of
schedule two or more presentations when I travel to pages in my usual sets of handout materials. I'm well-
your location, I'll reduce the airfare to a pro-rated known for providing lengthy handouts. In fact, if you
amount. I'm simply looking to cover my expenses, not email me, I'll send you a 26-page PDF collection of
to turn travel into a "profit center." If travel expenses some of my writing on electronic discovery for free.
were not such a variable, I'd simply charge a flat fee
and pay for my own travel. I don’t think that's fair to May I invite my clients and staff?
my local customers, so I'm charging for travel fees.
I thought you'd never ask. The pricing is per
Is this the most cost-effective education option presentation, not per attendee. For me, the more the
for me? merrier. I would encourage you to invite your clients
to help them get on the same page with you about
I think that you are asking: isn’t this a lot of money for electronic discovery and find better ways for you to
a seminar? Sure it is. If I can't help you understand work together.
the value that you get, you will probably decide that it

To Schedule a Seminar: Call (314) 963-9798 or email dmk@denniskennedy.com


For more information, visit http://www.denniskennedy.com.
How can I sample what the seminar will be like or I really don't make product or service
get a preview? recommendations in the seminar and my own
personal sense of integrity wouldn't let me shill for a
You won't believe how easy this is. Go to the Merrill vendor, service or product I don't think will help my
Corporation's On-Demand Seminars page at audience, so I honestly believe that you don’t have
http://www.merrillcorp.com/law/ and listen to one (or anything to worry about from me on this issue. But
I'm glad you asked and I'll be more than happy to
more) of my webinars for free. Also, email me with a answer any questions you have on this topic.
request for my free PDF collection of electronic
discovery materials and I'll email you a 26-page Will you do a custom program for us?
sampler of my electronic discovery articles that will
give you a good idea of my approach. I'm happy to discuss this option, but my intention is
really to provide the seminar that I have described. I
How can I learn more about you? will certainly tailor it to your situation, but it would be
a rare thing for me to create a custom presentation
Read my website and blog for you. As I said, I'd be happy to talk with you, but it
(http://www.denniskennedy.com). Read some of my certainly would not be at these price points.
many articles. Ask people in the legal technology field
about me. Call me up and ask me whatever you How can I be sure that this is the right program
want. for me?

Will you be the person delivering the seminar? Ultimately, you can't. We'll talk about your needs,
what you want and what this seminar provides. If
I'm the only one here. Yes. You ordered the seminar there is a good match and you can get comfortable
because you wanted me and it's me that you will get. with me and my approach, we'll work together
happily. If there isn't a good match or you can’t get
Are you or this seminar allied with any electronic comfortable with me, this won’t be the right program
discovery vendor? for you and I'll be happy to try to recommend
someone else who can provide what you want. If I
I know many people in the electronic discovery don't think it's a program that will work for you, I won't
vendor world and I think the world of them. In fact, try to talk you into buying it.
some of my friends think that I know everyone in the
legal tech vendor world, which isn’t even close to Will you provide a money-back guarantee?
true. These relationships give me a unique insight
into the marketplace and a great knowledge of what I would like to be able to do that. If you can help me
is available and from whom. come up with a way to provide a money-back
guarantee in a way that makes sense and is fair to
Aside from modest holiday gifts, the occasional ad or both of us, then I'll be happy to give you that
sponsorship on my website or blog (e.g., Fios and guarantee. I really have no doubt that you'll get your
CaseSoft), review programs and service accounts money's worth.
and other things of that nature, I'm not allied in any
material way with any EDD vendor. That may change How do I schedule a seminar?
in the future, but I work very hard at making sure any
material financial relationships are disclosed. It is Now that's the question I was looking for. Call me at
possible that a vendor might hire me to perform this (314) 963-9798 or email me at
seminar for customers, potential customers, user dmk@denniskennedy.com and we can talk about
groups or the like, but that would be disclosed before your needs and whether this seminar will work for
the presentation. you and get the seminar onto our calendars.

To Schedule a Seminar: Call (314) 963-9798 or email dmk@denniskennedy.com


For more information, visit http://www.denniskennedy.com.