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 welltrained 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 www.denniskennedy.com

5

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, offsite 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 ediscovery. 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 technical or deal only with zillion dollar cases with terabytes of information. This seminar focuses on the practicing lawyer who knows that electronic discovery is coming and wants to learn what he or she realistically has to do to be prepared and take advantage of opportunities. Dennis Kennedy is highly regarded as an electronic discovery authority who can explain the topic in "ways that practicing lawyers can understand." This seminar is designed to make your transition to electronic discovery easier. In this half-day seminar, your group will receive a solid grounding in the practical and technical issues that matter most to litigators. Kennedy will highlight the key issues that you must understand to make a successful transition into an era of litigation where electronic discovery becomes the norm, not the exception. By the end of the seminar, you will have a good understanding of: • Basic tools and approaches used in electronic discovery and whether they apply to your cases • Offensive and defensive uses of electronic discovery and new opportunities • A solid set of simple strategies and tactics for taking your first (or later) steps into the daunting world of electronic discovery • Practical ideas for making your life easier, winning more cases and keeping your clients happy • Standard Package. Presentation, plus handout materials. $5,000 (plus reasonable travel fee, if applicable) • Premier Package. Presentation, plus handout materials, extended question-and-answer period, right to audiotape and/or videotape session with license to use for your internal business purposes. $10,000 (plus reasonable travel fee, if applicable).
Terms: 50% of fee due with agreement, balance due on date of presentation. 10% discount for full payment in advance.

The seminar is divided into two sections. The first covers some computer forensics fundamentals. The second takes a look at what electronic discovery will mean for you in your practice. Part 1. Overview and Computer Forensics that Matter to Practicing Lawyers
• Paper Rules Collide with an Increasingly Digital World • A Little Knowledge is a Whole Lot of Dangerous • Is Every Step You Take Traceable? • Copies Everywhere – How Windows and Other Programs Make Lots of Copies of Everything • The Potentially Embarrassing World of Metadata • The Many Places Information is Kept Today • Is a Computer Forensics Expert Always Required?

• Making Good Decisions About Computer Forensics

Part 2. Transitioning to Electronic Discovery
• What is the Current Landscape in Electronic Discovery? A Billion Dollar Business? • It’s Not a Pretty Picture When Paper Rules and the Digital World Collide, Is It? • When Should Electronic Discovery be Considered? • Strategic and Tactical Planning • It’s a Team Game – Making Good Decisions about Getting Good Help • Observations and Predictions • Best Tips and Action Steps --------------------------------------------------------Dennis Kennedy is a legal technology expert and technology lawyer based in St. Louis. An award-winning author and a frequent speaker, Kennedy has published many articles on electronic discovery and litigation technology topics. He co-authors a regular electronic discovery column called "The Electronic Discoverers" at DiscoveryResources.org and his roundtable article, "A Gold Mine of Electronic Discovery Expertise," has been widely recognized as one of the most valuable practical articles on electronic discovery. Kennedy graduated cum laude from the Georgetown University Law Center in 1983 and has practiced law in large, medium and small firm settings.
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 introductory level? Introductory. I take a very practical approach. The seminar is designed to give you a solid foundation on which to build and a point from which you can learn what you need to learn with confidence. I honestly think that lawyers and others with advanced technology skills will learn a significant amount, but you will see from the description that the sessions are geared to the introductory level. What audiences is this seminar designed for? This seminar is intended to be a private seminar for a law firm, corporate legal department, law firm litigation department or other business or organization. In the classic situation, your attendees would gather in a conference room setting first thing one morning and the seminar would run until lunch time. If you bring me some lunch, I'll happily answer questions all through lunch and until I am ready to go to the airport or you are ready to kick me out, whichever comes first. This is not meant to be a presentation I would do at a public seminar, although it could be adapted for that purpose. Just to confirm: you will be coming to our location to provide this seminar, right? Yes. This seminar is designed to be one that "comes to you" not one where you come to it. Are you talking about the technologies of electronic discovery or the rules and cases? I've attended presentations that try to cover both the technology and the rules and, frankly, it creates information overload. It's too much to cover both topics and it will overwhelm you. I can talk about technology and how lawyers work. I leave the rules and cases for other presenters. If you want to cover both topics in one day, I'd be happy to work with you to pair up with another presenter to cover the substantive law issues. Of course, I'd want to present in the morning. You are known as a futurist and as someone who is ahead of the curve on legal technology. Should that concern me? Of course it should. However, I'm better known as someone who understands and can explain what technology can do to help lawyers in the actual practice of law. The focus of this seminar is entirely practical, except for a few minutes when I'll take a gentle look into the crystal ball, but even that is done with the implications for lawyers, not for technology, in mind. If you want to hear me talk about futurist and advanced legal tech issues, you will certainly have plenty of other opportunities. That's not what this seminar is about. This seminar is designed to TEACH you about electronic discovery, with a focus on the technology issues you must understand. What will I learn by the end of this seminar? First, I think that you'll learn that, while this subject is difficult, it is not impossible, and you certainly capable of starting to take the steps you need to manage these issues. You'll get a good sense of perspective and direction. By the end of the seminar, you will have a good understanding of: • • • Basic tools and approaches used in electronic discovery and whether they apply to your cases Offensive and defensive uses of electronic discovery and new opportunities A solid set of simple strategies and tactics for taking your first (or later) steps into the daunting world of electronic discovery

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, winning more cases and keeping your clients happy

Who should attend? Everyone in your firm, department or organization who will be involved in electronic discovery. Does that mean all lawyers, young and old? Yes. Paralegals? Yes. IT staff? Absolutely! Executives and decision-makers? Yes. Secretaries and administrative staff? Yes. Outside vendors you work with? Yes. One of my messages is that electronic discovery is a team game. Your whole team will benefit from this seminar and the follow-up discussions it will engender. Why are you providing this seminar? I think it will help many people who are struggling with the onslaught on electronic discovery issues. It pains me to see a state of affairs where very few lawyers understand even the basic technology issues involved in electronic discovery, judges struggle with electronic discovery issues with little guidance from lawyers, electronic discovery vendors with great products and services cannot sell these products and services to suspicious lawyers who have insufficient understanding about them, clients are over-charged, under-served and poorly represented because lawyers avoid or lack the capability to perform electronic discovery, and the legal system continues to get gunked up with even more delay. If I can do even a little bit to help prevent what appears to me to be an electronic discovery freight train headed for a wall from happening, I think I'll have made a major contribution to the legal system. In other words, I have talked to a lot of great, highly professional lawyers who are desperately trying to learn what they need to know about electronic discovery and have become increasingly concerned that they will be able to do so. They struggle with the first steps and forming the foundation from which to learn more. I can help them with this. How long have you been doing this? I have been giving well-received and highly-regarded presentations on legal technology and litigation technology topics for nearly ten years, averaging around one presentation per month over that time. I have done presentations on electronic discovery

topics for the past two years. I have written a national column on practical electronic discovery issues for 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 track leader for the electronic discovery track at the American Bar Association's TECHSHOW 2005. What makes you better than other companies doing this? I’m interested in TEACHING you about these topics. Everyone who is familiar with me and my work tells me unequivocally that no one can explain the practical technology issues involved in electronic discovery to lawyers better than I can. I've now heard that enough that I've even started to believe it. Seriously, though, I've seen and heard lots of seminars on electronic discovery. I find almost all of the presentations too esoteric, too technical and too impractical. If I'm saying that presentations are too technical, then you know that there's a problem for the average lawyer. I've also been a lawyer for more than twenty years. I tell you honestly what I think, based on my experiences and my knowledge of the electronic discovery industry. If I don't know the answer to your question, I'll tell you "I don't know" and see what I can find out for you. I don't bluff – experienced trial lawyers know instantaneously when someone is bluffing. I respect your work, your practice, your time and your clients, and want to help you have an easier time, win more cases, have happier clients and enjoy practicing law. Finally, providing this seminar is my only dog in the electronic discovery hunt. I have no plans to do any consulting or provide other services. I know many people in the EDD business and am happy to refer you to the ones I think are best. I've got no other angle than providing you with your money's worth for this seminar and helping you learn what I think you need to learn to get going on electronic discovery right now. This seminar is all about EDUCATION. What do attendees of your seminars say about you? After I present on these topics, lawyers say to me that I've given them exactly what the things they wanted to know and, I think this is the most important thing, I've given them a few concrete action steps that they can do to get started. The subject seems like

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 overwhelmed by the idea of completing converting their practice over a weekend or facing disaster (which is one way this topic is presented to lawyers – I prefer a kinder and gentler approach – a solid nudge, if you will, not a big push toward a cliff). What does the seminar cost? • Standard Package. Presentation, plus handout materials. $5,000 (plus reasonable travel fee, if applicable) Premier Package. Presentation, plus handout materials, extended question-and-answer period, right to audiotape and/or videotape session with license to use for your internal business purposes. $10,000 (plus reasonable travel fee, if applicable). Terms: 50% of fee due with agreement, balance due on date of presentation. 10% discount for full payment in advance.

is too expensive. That's OK – I can't win them all. On the other hand, if you don’t get a solid understanding of electronic discovery, you won’t be winning many of your future cases either. I’ll let you decide. Based on the programs I've seen and heard, you will get an excellent value. If you choose the audiotape/videotape option, you will be able to reuse the seminar internally as much as you wish. That's a very cost-effective approach. My pricing is based on the delivery of the seminar, not the number of attendees. If you have more attendees, the price-per-attendee will drop. Unlike many other seminars, I'm coming to your location and you and your colleagues are not traveling to an off-site seminar. Factor in the relevant travel and other cost savings and the more efficient use of time and I think you will see good value in my approach. Are CLE credits available for this seminar? Based on my experience in this industry and involvement with other seminars, I believe that this seminar will qualify for CLE credit in most, if not all, jurisdictions. I will work with you to ensure that we take appropriate steps to secure CLE credits. Because I'll provide a substantial amount of handout materials, I don't anticipate too many difficulties in arranging for CLE credit, but, as anyone who is involved in continuing education will tell you, the rules can be a little quirky. Will attendees be receiving substantial handout materials? Hmm, you must not be familiar with the number of pages in my usual sets of handout materials. I'm wellknown for providing lengthy handouts. In fact, if you email me, I'll send you a 26-page PDF collection of some of my writing on electronic discovery for free. May I invite my clients and staff? I thought you'd never ask. The pricing is per presentation, not per attendee. For me, the more the merrier. I would encourage you to invite your clients to help them get on the same page with you about electronic discovery and find better ways for you to work together.

Note: As part of the introduction of this seminar, I will give you a 10% discount if you book a seminar before September 1, 2005 (regardless of when seminar is actually given). What do you mean by "reasonable travel fee"? Whatever we can agree on in advance will be reasonable for travel. I'll fly in the day before the presentation and fly out the afternoon or evening of the presentation. I'll require one night in a reasonably good and convenient hotel, coach airfare is fine with me, ground travel and parking and other out-ofpockets we agree on. If you buy the premier package, I'll probably waive the travel fee. If I can schedule two or more presentations when I travel to your location, I'll reduce the airfare to a pro-rated amount. I'm simply looking to cover my expenses, not to turn travel into a "profit center." If travel expenses 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 my local customers, so I'm charging for travel fees. Is this the most cost-effective education option for me? I think that you are asking: isn’t this a lot of money for a seminar? Sure it is. If I can't help you understand 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 get a preview? You won't believe how easy this is. Go to the Merrill Corporation's On-Demand Seminars page at http://www.merrillcorp.com/law/ and listen to one (or more) of my webinars for free. Also, email me with a request for my free PDF collection of electronic discovery materials and I'll email you a 26-page sampler of my electronic discovery articles that will give you a good idea of my approach. How can I learn more about you? Read my website and blog (http://www.denniskennedy.com). Read some of my many articles. Ask people in the legal technology field about me. Call me up and ask me whatever you want. Will you be the person delivering the seminar? I'm the only one here. Yes. You ordered the seminar because you wanted me and it's me that you will get. Are you or this seminar allied with any electronic discovery vendor? I know many people in the electronic discovery vendor world and I think the world of them. In fact, some of my friends think that I know everyone in the legal tech vendor world, which isn’t even close to true. These relationships give me a unique insight into the marketplace and a great knowledge of what is available and from whom. Aside from modest holiday gifts, the occasional ad or sponsorship on my website or blog (e.g., Fios and CaseSoft), review programs and service accounts and other things of that nature, I'm not allied in any material way with any EDD vendor. That may change in the future, but I work very hard at making sure any material financial relationships are disclosed. It is possible that a vendor might hire me to perform this seminar for customers, potential customers, user groups or the like, but that would be disclosed before the presentation.

I really don't make product or service recommendations in the seminar and my own personal sense of integrity wouldn't let me shill for a vendor, service or product I don't think will help my audience, so I honestly believe that you don’t have anything to worry about from me on this issue. But I'm glad you asked and I'll be more than happy to answer any questions you have on this topic. Will you do a custom program for us? I'm happy to discuss this option, but my intention is really to provide the seminar that I have described. I will certainly tailor it to your situation, but it would be a rare thing for me to create a custom presentation for you. As I said, I'd be happy to talk with you, but it certainly would not be at these price points. How can I be sure that this is the right program for me? Ultimately, you can't. We'll talk about your needs, what you want and what this seminar provides. If there is a good match and you can get comfortable with me and my approach, we'll work together happily. If there isn't a good match or you can’t get comfortable with me, this won’t be the right program for you and I'll be happy to try to recommend someone else who can provide what you want. If I don't think it's a program that will work for you, I won't try to talk you into buying it. Will you provide a money-back guarantee? I would like to be able to do that. If you can help me come up with a way to provide a money-back guarantee in a way that makes sense and is fair to both of us, then I'll be happy to give you that guarantee. I really have no doubt that you'll get your money's worth. How do I schedule a seminar? Now that's the question I was looking for. Call me at (314) 963-9798 or email me at dmk@denniskennedy.com and we can talk about your needs and whether this seminar will work for 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.

Sign up to vote on this title
UsefulNot useful