Handout for

Electronic Discovery: Times are Changing, Are You Ready?
For Concordance Partners in Excellence Conference October 16, 2007

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

Table of Contents
Why Aren't More Lawyers Doing Electronic Discovery? .................................. 2 The New Federal Rules on E-Discovery: The First 180 Days (Excerpt)............ 7 Unexpected Benefits of Electronic Discovery .................................................. 9 The Many Places to Discover Data................................................................. 11 Developing a Team Approach to Electronic Discovery................................... 13 Determining When to Use Electronic Discovery ............................................ 17 Practical Tips for Evaluating E-Discovery Vendors and Providers ................. 20 An Electronic Discovery "Cheat Sheet".......................................................... 24 EDD-ucating Yourself About Electronic Discovery......................................... 27 Dennis Kennedy............................................................................................. 31

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Why Aren't More Lawyers Doing Electronic Discovery?
Dennis Kennedy (DK): I read yet another article recently that pointed to the discovery of email in the Microsoft antitrust case as the "wake-up alarm" for lawyers on electronic discovery. Does that mean lawyers have been hitting the snooze alarm on electronic discovery for the last five or six years? Even the most enthusiastic advocates of electronic discovery techniques will tell you that electronic discovery is used in perhaps 1% or 2% of all cases. That raises our question for today: why aren't more lawyers doing electronic discovery? First of all, do we all basically agree with the 1% to 2% figure? Evan Schaeffer (ES): Some lawyers might be doing electronic discovery without even realizing it. How? Even though their eyes might glaze over when you ask them about "electronic discovery," their opponents might be giving them electronic data in printed form in response to their typical discovery requests. That's the rule in Illinois, for example, where a party served with a request for production is required to produce "all retrievable information in computer storage in printed form." Does it work like that in Texas, Tom? Tom Mighell (TM): First, to answer Dennis' question: according to the ABA's Legal Technology Resource Center's 2004-2005 report, 73% have never received a request for electronic discovery, while 11% receive two or less per year, 9% receive 3-11 requests per year, and 6% receive them monthly. So I think it's bigger than 1-2%. But Dennis, I have problems with the premise of your other question: it may not be that more lawyers aren't doing electronic discovery, it might instead be that electronic discovery is not a relevant part of many cases (as I'll discuss further below). As far as Texas goes, Evan, I think you're right - most attorneys will ask their clients for printed rather than electronic copies of documents, because that's the way it always has been done. (DK): Well, the LTRC report gives us some data, but it's self-reported and not as scientific as anyone would like. Note, too, that the question asked what requests were received. Let me turn
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the question on its head. It's worth discussing whether the 1% to 2% figure might actually be an accurate reflection of the cases that should involve electronic discovery. It won't surprise anyone that I think that 1% or 2% would be a high number for the cases that should NOT involve electronic discovery, but you guys are out there working in the trenches. Do you have some sense of what percentage of cases probably should involve some kind of electronic discovery these days? (ES): Basic electronic discovery-e.g., a set of written discovery and a deposition to discover the scope of an opposing party's electronic information-should be done in almost every case in which the opposing party creates and stores relevant information electronically. These days, wouldn't that describe most litigated cases? It certainly exceeds 1% to 2% by a wide margin. (TM): I think the key phrase is "relevant information." In my limited litigation practice I have now (3 cases), although my clients may have information stored on computers, it's not even remotely relevant to the case. I have a dram shop case (did the bar overserve the driver?), a wrongful death case involving a baby falling from the second floor of a townhouse (was the railing constructed in 1969 in violation of the building code?), and a personal injury case involving an accident in a scrap metal yard (did the crane move too fast?) - no relevant electronic discovery to be had here. Your question assumes that personal injury litigation is similar, discovery-wise, to commercial litigation cases, and many times it's just not. Personal injury plaintiffs are almost never going to have relevant electronic information, and I'd say at least half the time the defendants won't have relevant electronic documents either. (DK): That's a fair point. Perhaps I'm too simpleminded on all of this, but I don't understand why you'd ever want to limit yourself to just looking at paper. How would a lawyer make the decision that the other side's email was categorically not relevant to your case? In today's personal injury cases, you can imagine that instant messages or email could be relevant or at least something that might be interesting. So much of what we do is electronic these days. I think I'd fire a law firm


that told me that they wanted to try a case on the basis of paper discovery alone. However, I am the non-litigator in this group. (ES): There's a cost factor to consider, of course. If I'm up against General Motors, I'd be foolish to serve a blanket request asking to see all of its email. If I limit the scope of my request to email that was highly relevant to the issues in the lawsuit, cost would still be a factor. It might be very expensive to locate particular relevant emails among the universe of email at General Motors. Despite these reservations, Dennis, I still agree that it would be foolish to categorically omit consideration of emails in any particular case. (TM): We're all in agreement on this one. I think electronic discovery should be a consideration in every case a lawyer has, but there are of course other considerations - cost, universe of documents, and a theme I'll be trumpeting throughout this article: whether the electronic documents contain information relevant to the litigation. (DK): So, why aren't more lawyers doing electronic discovery? I suspect that the answer is, in large part, simply inertia. The legal profession is inherently conservative and slow to change. For better or worse, lawyers are comfortable with the current system of sorting through banker's boxes of documents and they know what to expect. The billable hours model certainly fits the current paper-based approach. Our natural tendency to resist change explains a lot. It's hard to change ingrained processes. (ES): I think you're onto something there when you talk about the "comfort" of doing things the old way. As someone who's done plenty of document review, I tend to think it's much easier to quickly grasp the meaning and significance of a printed document than a document being displayed on a computer screen. There's something about being able to grasp a document in your hand that adds to your comprehension, especially when that document, after being electronically generated, was meant to be circulated as a printed, paper document. And when you can't hold the documents-when you must put your faith that a computer search has yielded everything that's relevant, for example-

that can also create anxiety in lawyers who, like me, were trained to review paper documents. (TM): Part of what we have been talking about in this roundtable series is the complete paradigm shift electronic discovery represents in the way litigation is conducted. It's more than just the comfort level attorneys feel in holding a paper document; it's getting attorneys to even think in terms of electronic documents. Until a lawyer gets a case that makes that switch flip on, he or she may not even consider the possibility. (DK): Fear of change, or fear of the unknown, is related to, but somewhat different from, resistance to change, or inertia. Electronic discovery takes many lawyers well outside their comfort zone. Moving from paper discovery to electronic discovery might take a lawyer from feeling that he or she is an expert to feeling that he or she is a total novice. I don't think that enough people acknowledge the fact that moving to electronic discovery is scary stuff. (ES): You're right about that. Moving to electronic discovery requires a new vocabulary and a new set of procedures that incorporate technical concepts that are completely foreign to many lawyers, even those who consider themselves to be "computer literate." Unless those foot-dragging lawyers are pushed towards electronic discovery, they will be very reluctant to learn it on their own. (TM): Are we all agreeing again? I think I have a reasonably good hold on electronic discovery, but sometimes just hearing "MD5 Hash" and "deduping" makes me glad to be working with a knowledgeable vendor. Lawyers these days are hearing (from me, among others) that they could be liable to their clients if they don't know how to properly use the technology they have; it's understandable if they are reluctant to undertake an entirely new level of education in legal technology. (DK): Let's face it, the choice of electronic discovery tools and services is overwhelming. It's not like you run out and buy an electronic discovery program. There are niche and subniche software tools. You might often find that, while you thought you needed a program, someone is trying to sell you on a hosted Internet

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service. These are new and difficult-tounderstand concepts. Vendors are selling you hard and they have a tendency to lapse into jargon and stress the importance of features that lawyers don't really understand. It's a difficult market to assess and lawyers have good reason to be wary about buying expensive tools and services they don't understand. There's also no question that we will see a shake-out and consolidation in the vendor market over the next year. (ES): Vendors often add an additional layer of confusion and uncertainty. "Do I really need that," a lawyer might think, "or is someone just trying to sell me something?" (TM): And how do you know which vendors are reputable? Nowadays, copy services are now advertising that they are also "electronic discovery vendors" because they need to compete - but their services are often far below those offered by the major EDD vendors. I think some companies may take advantage of attorneys who don't know much about the business. (DK): You both have asked the questions that should be on every litigator's mind. However, just because the market for tools and services is confusing doesn't mean that lawyers should be let off the hook. If you want to represent your clients well, you simply have to get up to speed on this stuff. And that brings me to another impediment to lawyers adopting electronic discovery. They do have to educate themselves and that education is not a simple and quick process. There is a lot to learn. Realistically, it might take hundreds of hours of time to become reasonably knowledgeable - by that I mean knowledgeable enough that opposing counsel and judges really think you know what you are talking about. I think that the best trial lawyers routinely put that much time and more into getting better at their craft and, for them, it will simply be a matter of making electronic discovery the focus of their self-improvement efforts. But the amount of education is a daunting issue, don't you think? (ES): It certainly is. And it's another cost factor. But is the area of electronic discovery really so complicated that it will take "hundreds of hours" to get up to speed? It's something that those of us who discuss electronic discovery should be

careful about, because we don't want to send the wrong message--that electronic discovery is impossible to learn, for example. What do you think, Tom? (TM): Gee, when Dennis said "hundreds of hours" I just heard thousands of lawyers running for the door. I think a lawyer who wants to be completely immersed in the subject may well spend that amount of time reading or in classes, but I suspect the average lawyer will require far less time to become familiar with the concepts. A carefully-crafted one (maybe two) day seminar, along with competent supporting materials, should be enough to get most lawyers going on electronic discovery. (DK): I'll stick to my guns on what it takes to become knowledgeable, but agree with you on what it takes to become familiar. I'm still surprised at lawyers who don't seem to want to reach even the level of "familiar." I look at the common villain. As the minimum billable hours quotas at many firms moved past the 2,000 hour mark, it became harder for lawyers to squeeze in large amounts of continuing education. There's a vicious cycle there. Economics also pay a role in the resistance of lawyers to electronic discovery. It's the old billing-by-the-hour conundrum. If one of the promises of electronic discovery is that it makes the discovery process more efficient, then it presumably reduces the number of hours billed to a case, which has a negative economic impact. This results in what I believe is called a "negative incentive" for lawyers to move to electronic discovery. By the way, and we'll discuss this in a future column, I think that analysis of the economic impact of electronic discovery is too narrow and short-sighted and misses some of the actual benefits of electronic discovery. (ES): While I used to work on a billable hour basis, I'm usually paid these days on a contingency fee basis. In other words, I invest my own time and money in a case and don't get paid legal fees unless I'm successful. That's a model that's common among plaintiff's lawyer. Under that model, it makes sense to be as efficient as possible in prosecuting cases. Of course, the initial investment of time and money to get up to speed about electronic discovery will

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still be a roadblock. But there's no "billable-hour disincentive" for plaintiffs' lawyers. (TM): Speaking for the defense bar, I can say the billable hour block is a big problem; I am constantly frustrated at lawyers who do not take pro bono cases, become involved in local bar associations, or even market their practices because of the almighty billable hour. That's why electronic discovery education needs to be pitched a little like tort or tax reform education: it's a necessary evil to get up to speed on new ideas, but once it's over the benefits in time saved will become more apparent. (DK): Another factor, which Tom and I have personally discussed throughout the course of this year, is that many lawyers honestly believe that many cases are not suitable for electronic discovery and that electronic discovery is overkill or inappropriate in those cases. I think that you can reasonably reach this conclusion for some cases, but I'm not convinced that you can reach that conclusion for the overwhelming majority or even all of your cases, as many lawyers seem to be doing today. However, I do believe that you can make the analysis on a caseby-case basis and, after a full discussion, convince your client that trying a case without electronic discovery is appropriate. I think you do want to have that discussion and buy-in from your client, because their assumptions about what you are doing may be very different from what you are doing. Obviously, if I'm your client, you are going to have a hard time convincing me to forego electronic discovery. (ES): You'd actually be an easy client to deal with. The real problem occurs in those cases in which there is no alternative to electronic discovery but the client is still resistant. As a plaintiff's lawyer, I've never been involved in this sort of conflict since I'm generally paying the costs myself, at least initially. But for civil defense lawyers, I'd think that sort of attorneyclient conflict would be quite a problem. What would you do, Tom, if electronic discovery was necessary to defend a case but a client refused for cost reasons? (TM): If a client refused to pay for the costs of electronic discovery (and no avenues of appeal were available up the decision-making chain),

just about the only thing I could do would be to confirm the client's refusal in writing. CYA, I believe it's called. (DK): But, Tom, I'm not sure that enough lawyers are even getting to the CYA level. More important, I'm just not sure that clients are getting what they bargained for when they hire lawyers today. I must have been asked a hundred times this year why lawyers aren't moving into electronic discovery. Here's my most blunt answer: because their clients don't penalize or punish them for not doing so. You can do all the seminars, white papers and studies that you want, but we won't see anything more than incremental change until clients start firing law firms that don't do electronic discovery and hiring law firms and hiring law firms that do. I don't think I can be more blunt about it. (ES): Perhaps it will take a general awareness among litigants that electronic discovery is the way to win-or lose-cases. I'm thinking along the lines of more horror stories like the ones you've been highlighting in these columns. I hope I'm never the central figure in one of those! (TM): Dennis, I have to ask this question: who is asking you why lawyers aren't moving into electronic discovery? If it's lawyers, then they should be answering the question themselves. If it's non-lawyers (which = clients), then they should be asking their own lawyers this question. I'm just not convinced that clients will fire their attorneys for not doing electronic discovery as often as they will for not providing a good result at a (usually) reasonable price. That won't happen until there's more tangible evidence that, as Evan says, EDD wins or loses cases. (DK): Vendors, clients, journalists, a judge or two. As a last thought, I wanted to bring up something that has puzzled me about lawyers' limited use of electronic discovery. No, it's not the malpractice issue, which we can save for another day. Regular readers know that I'm the radical of the group and I like to ask simple, basic questions. I thought litigators wanted to win cases - and I consider favorable settlements as big wins. If electronic discovery can give you an edge, and in some cases a substantial one, why aren't lawyers using it? That's the question I

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think clients will be increasingly starting to ask and then demanding answers. (ES): Yes, it can give you an edge, but some lawyers might fear it comes at too great a risk. "If I'm overzealous about electronic discovery," a lawyer might think, "my opponent will turn the tables on me and require the same things of me in triplicate." Perhaps it's a mistaken case of mutually assured destruction. (TM): Agreed, but look at all the reasons a lawyer might not use electronic discovery: 1) it's not relevant to the case, 2) it can be costprohibitive, 3) lawyers are more comfortable working with paper, 4) unfamiliarity with EDD, 5) techno-phobia, 6) the learning curve, and 7) client refusal to pay. For some lawyers, it may be a combination of some or all of these reasons. The challenge - one that I hope we will continue to address in these columns - is to make all of these reasons meaningless, by educating lawyers about electronic discovery.
Dennis Kennedy (dmk@denniskennedy.com) is a wellknown legal technology expert and technology lawyer based in St. Louis, Missouri. An award-winning author, he has written extensively on electronic discovery and other legal technology topics and also speaks frequently on these matters. His website (www.denniskennedy.com) and blog are highly-regarded resources. Evan Schaeffer is a class action and mass torts lawyer based in the St. Louis metropolitan area. His firm is Schaeffer & Lamere, P.C. Schaeffer's weblogs are The Illinois Trial Practice Weblog and Evan Schaeffer's Legal Underground. Tom Mighell (tmighell@swbell.net) is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson, P.C. in Dallas. He is the author of the Internet Legal Research Weekly, and the Internet research weblog Inter Alia, an Internet legal research weblog.

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The New Federal Rules on E-Discovery: The First 180 Days (Excerpt)
From article originally published in the July 2007 issue of Law Technology Today (http://lawtechnologytoday.com)

was working on my taxes and seeing those notices in the instructions about paperwork reduction and the encouragement to e-file my return. ... 3. What tips can you offer people contemplating native productions? Avoid them at all costs? How can you keep control of documents when you produce them in native format? Dennis Kennedy: It's all about understanding what's there, what you need, and how information is carried within documents today. The more you understand, the better you can do. As Craig notes, if you don't use native file formats, you get less information. However, that might be OK for many reasons - cost, efficiency, et al. If you are prepared when you "meet and confer," you can tailor your production to what makes sense. It might make sense to do a "blended" production, using TIFFs, PDFs and native file formats. If you know what you need and understanding what native file format is, you can work out optimal ways to handle the data you have. It all boils down to whether the information is "relevant," and I think it will be harder to argue that the metadata and other information in ESI are categorically not relevant. Let me echo Sharon's comments on Bates stamping. In the future, we will often be looking at databases rather than "documents" and lawyers might find that the concept of Bates stamping breaks down when you consider database records that don't have page numbers or have other characteristics of word processing or other document files. 4. What do you see in your crystal ball for the next 6-12 months? Will electronic discovery shift into high gear or stay the same as now? Dennis Kennedy: As with most technologyrelated developments, we overestimate the shortterm impact and underestimate the long-term impact. The tectonic shift in the way that litigation is practiced and, more importantly, how disputes are resolved, has already started, but its true impact is several years away. Developments in database technology, records management, archiving and storage, and other factors will

Questions 1. Well, it's been 6 months since the new rules took effect. Has anyone seen any difference? Dennis Kennedy: My mailbox and email inbox continue to fill up with a stream of announcements for seminars about the impact of the new rules. While there are certainly a lot of educational opportunities and articles out there, I don't hear many lawyers saying that they are actually involved in e-discovery on a daily basis. My sense is that there is a slow growth across the board, with a few pockets, primarily in complex litigation and in certain geographic areas, where EDD is becoming more common than before the rule changes, but they are probably some of the areas that were already seeing EDD before the rule changes. I'd say that some of the decisions of courts in the last month or so might give more urgency to the process. ... 2. The new rules speak of native productions. That used to be the exception rather than the rule. What about now? Dennis Kennedy: I noted earlier this year when the US Justice Department delivered boxes full of printouts of emails to Congress that we had a good idea of where we were in the evolution of EDD. Think about it. You take emails in digital form, print them out, box them up, ship the boxes, unpack the boxes, and then, probably, scan the emails as TIFF images so they can be looked at in an electronic format. While there are nuances in the debate about native file formats, I'll keep using this example to people in hopes that someone can tell me that that is a logical process with a straight face. Or maybe they'd let me see how they explain the costs of that process to their clients. At the time I was reading about the Justice Department printing out the emails, I

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ultimately play a greater role in the development of electronic discovery than the current rule changes will. The law always struggles to keep current with technology. You can never go wrong by predicting that lawyers will be slow to adopt new technologies, so I believe that electronic discovery will stay a fairly sleepy area in the next 6 - 12 months, but we've already seen, and will continue to see, courts sounding the wake-up alarm. Lawyers, in general, are still hitting the snooze button, but while many sleep late, the real story will be in the gap that those who have already moved into the world of electronic discovery have created and will widen in the next 6 - 12 months. That "EDD gap" will become a growing story in the 21st century practice of law. See the complete panel discussion (highly recommended) at: http://www.abanet.org /lpm/ltt/articles/vol1/is5/ TheNewFederalRulesonE-Discovery.shtml

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Unexpected Benefits of Electronic Discovery
In some ways, we are in the “Perry Mason” era of electronic discovery in the minds of 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 dayto-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 tidal wave. 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. That’s not always the case, of course, but electronic discovery will offer you the chance to work more closely with clients and others. 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

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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.

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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. 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

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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? 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.

© 2007, Dennis Kennedy


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 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.

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

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,

© 2007, Dennis Kennedy


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. 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. 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.

© 2007, Dennis Kennedy


1. No One Stop Shop Here's a key point. Do not expect to find a onestop 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. 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

© 2007, Dennis Kennedy


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 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.

© 2007, Dennis Kennedy


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. 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

© 2007, Dennis Kennedy


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 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. 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?

© 2007, Dennis Kennedy


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 "todo" 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.

© 2007, Dennis Kennedy


Practical Tips for Evaluating E-Discovery Vendors and Providers
By Dennis Kennedy, Evan Schaeffer and Tom Mighell (March 2006)

might be as important as learning about their product and service offerings? (ES): If there's going to be a shakeout and consolidation, it's all the harder to choose an ediscovery vendor. No one wants to get into the middle of a big project only to learn that they've hired an e-discovery vendor that's about to get lost in a reshuffling. I think I'd be looking for firms with a history and proven track record, at least until we see who's still standing after the shakeout and consolidation you're predicting. (TM): I think that's right -- there are a good 1015 companies that are well-known in the industry that would be good choices -- except maybe for some solo and small law firms. Maybe your best bet would be to hire an EDD consultant who has an eye on what's happening among the companies, and who can recommend the best fit for your firm and the particular electronic discovery project. (DK): Well, I've concluded that you actually have to develop some strategies and some tactics to learn about this industry and what you need to do. First and foremost, you really want to educate yourself about the industry, who the players are and, most important, what they do best. Unfortunately, I have not found this to be an easy process. (ES): There's just such an overwhelming amount of information. That's why a proven track record is so important to me. If I'm looking for a vendor for a new project, I can rely on the ones I've used in the past or, failing that, use one I know has handled a project similar to the one I'm facing. I hope I don't sound too cynical, but it saves me from having to wade through all the puffery on vendor websites. I'd much rather rely on personal recommendations. (TM): I'm the same, but as you know, our firm still has yet to receive an electronic discovery request. When that first request does come in, I have a short list of the companies that I will call, but I have to admit I'm still overwhelmed by it all. Are there companies that are a better fit for my firm out there, and I just don't know about them? (DK): As Tom knows from being around me at LegalTech, I get frustrated by the number of

Dennis Kennedy (DK): Tom and I recently attended the LegalTech conference in New York. Not surprisingly, we spent a lot of time visiting with and learning about the electronic discovery vendors there. By some counts, e-discovery and litigation technology vendors comprised almost a third of the vendors. I've been hearing consistently lately as many as five thousand (5,000) companies describe themselves as being in the e-discovery sector. It's no wonder we get confused and feel overwhelmed. Or maybe I'm the only one who feels that way. How about you guys? Evan Schaeffer (ES): 5,000 companies? Wow. Since one of our themes in these columns has been the reluctance of many lawyers to embrace e-discovery, it makes me wonder how all those companies are managing to keep busy. Or are more lawyers embracing e-discovery than we thought? Tom Mighell (TM): I'll be the one to say that many lawyers are still not embracing ediscovery. I think the explosion of EDD companies comes from the need to be competitive. I know a number of companies in Texas that used to be called "copy services" -but during the past year they have re-imagined themselves as providing e-discovery services. Unfortunately, many of these companies probably don't know as much about EDD as they should. (DK): It's also reasonable to expect that we'll see some shakeout and consolidation among the ediscovery vendors. If it's confusing now, I expect it to become even more confusing in the short term. Perhaps by the end of 2006, we'll see the overall picture come into better focus. You'll definitely want to monitor the new stories to see what develops. Who would have thought that monitoring what is going on with the companies

© 2007, Dennis Kennedy


vendors who say that they are "full-service" ediscovery companies. While there may be a few companies evolving into that category, I'm not convinced anyone is a truly "full-service" provider in this category. I'm always asking companies to level with me and tell me what they do best. With patience and persistence, I can get them to tell me. My free advice to everyone in the industry is that the phrase "full-service" needs to be banished for a while and more effort dedicated to educating the market about what options they have. (ES): Too bad those companies probably won't take your advice, thinking that dropping the "fullservice" label might give their competition a leg up. What they don't realize is that lawyers are drawn to firms that tout their strengths in a way that differentiates them from the rest of the pack. (TM): I have two different takes on this -- I think that several of the biggest EDD companies can probably get away with calling themselves "FullService" providers; now whether they can adequately provide all of those services is another question. But interestingly, my experience in meeting with vendors lately has been exactly the opposite -- so many of them provide "niche" service providers, offering one particular service; I'm having trouble keeping track of all of them. (DK): Let me back off just a bit from my position about full-service providers. I am intrigued by the idea that some providers can become "ediscovery general contractors." Much like when you build a new house or put an addition on your house, you hire a general contractor who selects the carpenters, electricians, plumbers and other skilled laborers. You rely on the experience and expertise of the general contractor. I can see the same thing happening, over time, in e-discovery. (ES): That's a good model. Rather than trying to get your mind around the entire field yourself, you can rely on a trusted expert to do it for you. It's the "trusted" part of the equation that's most important. Finding an expert seems easy, but finding an expert you can rely on? Now that I think about it, I haven't had much luck with building contractors either.

(TM): Both of your responses raise a question for me -- is the "general contractor" an e-discovery provider or a consultant -- or could it be either? I'd almost rather have a consultant to help select e-discovery providers -- someone who can (hopefully) objectively tell me which providers would be best for my particular project. On the other hand, a vendor might have business arrangements with "subcontractors," which might lead to less impartial recommendations. (DK): I really want to emphasize that finding and evaluating vendors is difficult and confusing. Our message in this column is that if you feel confused, there are good reasons for that, and that the e-discovery vendors should be focusing on educating the market. It should not surprise anyone that I like the educational approach Fios has taken with the DiscoveryResources.org site on which this column appears. What other resources do you guys like? (ES): I have a number of places I visit from time to time in order to get educated. I favor the sites where I can tell at a glance that the information is being provided objectively-- that is, not as part of a sales pitch. It's not that I mind the sales pitch, but I don't like it when it's disguised as something else. (TM): I second Dennis on DiscoveryResources -I subscribe to the RSS feed, so I am kept up-todate on the latest EDD articles that are published on the site. I also read e-discovery articles on Law.com's Legal Technology page (www.law.com/jsp/ltn/index.jsp); many of those articles, and others, can also be found in Law Technology News. (DK): The best tactic I can think of is to break the e-discovery process into its components and stages. George Socha and I wrote an article which we broke the process into eight separate, but related, stages. You can find it at www.discoveryresources.org/ 04_om_electronic_discoverers_0411.html. Break the process into the steps that make sense to you. Then, evaluate your needs in each stage and create a shopping list and checklist for questions to ask vendors. You really want to, as lawyers like to say, "compare apples to apples" when finding and evaluating tools and services.

© 2007, Dennis Kennedy


(ES): E-discovery projects can often seem completely overwhelming. If it's not enough that the terms and concepts are often difficult and unfamiliar, there's the cost component too-whether you're getting all the value you can from each dollar you spend on e-discovery. (TM): And that's where having a "general contractor" can really come in handy. Comparing "apples to apples" can get confusing; if I'm evaluating different tools and services, I may find that there are 4 or 5 vendors that fit my needs. A general contractor or consultant who really knows the difference would be helpful in telling me the best service for that particular component, both in terms of cost and service. (DK): I want to mention two practical tactics that every lawyer should be considering. The first is looking for interoperability in whatever products and services that you select. You want to move data in and out of the different software and services you use, and generally to share the information you have between the programs you use. As an example, CaseMap and perhaps twenty other programs allow you to use a "Send to" menu item to easily move information between programs. That will give you a lot of flexibility even if there are many changes in the industry. (ES): Being able to port data from application to application is essential, as is retaining the data in a format that will continue to be easily accessible. I speak from experience. Even now, I have a lot of data specific to ongoing cases-generally, mass torts that have been going on for years--that I can't get to without firing up old computers. While ten years isn't a long in the lifetime of some mass torts, it can be several lifetimes for computers. If I don't find the time to convert some of that old data into a format that's at home on my new machines and applications, I'm going to risk orphaning it completely. (TM): I think that as time goes on, more and more applications will be offering this type of interoperability -- we're definitely seeing a lot of service providers who recognize the value in being able to work with other applications. This will in turn build goodwill with the consumers who buy the product. I am never happy when a

vendor tells me that their software won't play with the other software I already have. (DK): The second practical tip I want to mention relates to an area that many law firms simply do not pay enough attention to. That's reviewing the software licenses and services contracts they sign. They will want to learn what acronyms like SLA (service level agreement) mean and have a good understanding of what is going on in the contracts they sign. They will especially want to consider exit strategies, termination provisions, confidentiality, and all terms covering the return of data and transition of data to other service providers. Watch out for "standard" contracts. (ES): I definitely fall into the "don't pay enough attention to it" category. But I promise to start now. And I'll know where to turn next time I'm confused about an SLA. (TM): Licenses? Contracts? Huh? Seriously though, Dennis -- what do you mean when you say "standard" contracts? How's the average lawyer to know what a "standard" contract for ediscovery services means? I suspect the answer may lie in that consultant I have been mentioning throughout this discussion. (DK): Let's save those questions for another day. We learned a lot at LegalTech - mainly that there's a huge amount left to learn. Tom and I wanted to say thank you to Julia Wotipka and Mary Mack of Fios for their hospitality and treating a group of lawyer bloggers (including Tom and me) to a great breakfast at Norma's. They did require that we not order the famous $1,000 omelet at Norma's. We missed you at that breakfast, Evan. (ES): You knew I would have wanted that omelet. As I always say, no price is too steep for a good egg. (TM): Well, no omelet should have caviar on it, either :-) The breakfast was great fun -- no one should miss a breakfast at Norma's if they are in NYC.
Dennis Kennedy (dmk@denniskennedy.com) is a wellknown legal technology expert and technology lawyer based in St. Louis, Missouri. An award-winning author, he has written extensively on electronic discovery and other legal technology topics and also speaks frequently on these

© 2007, Dennis Kennedy


matters. His website (www.denniskennedy.com) and blog are highly-regarded resources. Evan Schaeffer (eschaeffer@riverbendlaw.com) is a class action and mass torts lawyer based in the St. Louis metropolitan area. His firm is Schaeffer & Lamere, P.C. Schaeffer's weblogs are The Illinois Trial Practice Weblog and Evan Schaeffer's Legal Underground. Tom Mighell (tmighell@swbell.net) is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson, P.C. in Dallas. He is the author of the Internet Legal Research Weekly, and the Internet research weblog Inter Alia, an Internet legal research weblog.

© 2007, Dennis Kennedy


An Electronic Discovery "Cheat Sheet"
DEFINITIONS Electronic Discovery - The management of discovery matters in connection with litigation using software and electronic tools to produce, manage and work with (1) traditional paper documents (including paper documents that have been converted into a digital form (e.g., by scanning)) and/or (2) data and documents that exist only in a digital or electronic format. Document – Since at least 1970, Rule 34 has included "electronic compilations" as part of the definition of document. Metadata – Data "about" data. As a practical matter, data that is associated with electronic document files, often without the knowledge of the creator of the document. The two most common categories of metadata are "system metadata," which includes system-related information about a file (creator, location, last saved, et al.) and "application metadata," which may included "track changes" information in Microsoft Word documents, history of revisions, comments, et al. Native File Format – Documents in the original format in which they were created without any conversion to another format. Example, an Excel Spreadsheet in the .xls format. PST – The standard format for the file containing a user's email used by Microsoft Outlook. PDF (Portable Document Format) – The standard format of files created by Adobe Acrobat which preserves the way a document looks when it is printed. Increasingly popular as the standard format used in electronic discovery. TIFF – (Tagged Image File Format) – A longused format for scanning paper as a digital image. Becoming less popular as PDF use increases. Tends to produce large file sizes. Computer Forensics – The scientific investigation of digital media and digital files to gather, preserve, analyze and document electronic information to establish a factual basis and evidentiary foundation for court review.

Image a drive – Creating a replica, "mirror" or "clone" of all contents of a hard drive that can be used as evidence (different from simply copying data files) Image vs. OCR – Paper documents may be scanned either as an electronic image (like a fax machine produces) or as a file in which the words are recognized and usable as a word processing document (OCR or optical character recognition). Image scanning is increasing popular. The Sedona Guidelines and Principles – Extremely influential discussions of electronic discovery issues and basic principles and approaches developed under the aegis of The Sedona Conference (www.thesedonaconference.org). For more definitions of key e-discovery terms, see The Sedona Conference Glossary For EDiscovery and Digital Information Management (available for download at http://www.thesedonaconference.org/ publications_html?grp=wgs110) RULES Key Federal Rules of Civil Procedure Relating to Electronic Discovery Issues Rule 16(a, b, c, f) – Pretrial conferences, scheduling and management, including preservation orders Rule 26 – Production and protection of case information, including protective orders and "meet and confer" requirements Rule 30 – Depositions Rule 33 – Interrogatories Rule 34 – Production of documents and inspection Rule 37 – Sanctions Rule 53 – Masters IMPORTANT DEVELOPMENT – On April 12, 2006, U.S. Supreme Court unanimously approved changes to certain Federal Rules of Civil Procedure relating to electronic discovery (changes effective December 1, 2006). There will be revisions and additions to Rules 16, 26, 33,

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34, 37, and 45, as well as Form 35 and some conforming changes to other rules. Highlights include: Requires early meetings to address e-discovery issues, mandates discussion of e-discovery issues, distinguishes between electronically stored information and "documents", and creates a "safe harbor" that protects a party from sanctions for failing to provide electronically stored information lost because of the routine operation of the party's computer system. (see http://www.uscourts.gov/rules/newrules6.html#c v0804) TWO E-DISCOVERY CASES EVERY LAWYER KNOWS (OR MUST KNOW) Zubulake v. UBS Warburg, LLC (I – V) – Five decisions in one case that have been extremely influential in setting standards for electronic discovery, including establishing grounds for cost recovery, responsiveness guidelines and other practical issues. All five decisions are important, but pay special attention to Zubulake IV (220 F.R.D. 212 (S.D.N.Y. 2003)) and Zubulake V (2004 WL 1620866 (S.D.N.Y. July 20, 2004)), which address the granting of adverse inference requests for failure to preserve relevant data and a lawyer's duty to monitor how a client handles data preservation. Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. (2005 WL 674855 (Fla.Cir.Ct. Mar., 23, 2005)); (2005 Extra LEXIS 94) – Granting of $1.45 BILLION summary judgment because Morgan Stanley "deliberately and contumaciously violated numerous discovery orders” brought the reality of e-discovery sanctions home to many lawyers and their clients. Other E-Discovery Cases? There are two excellent Internet resources where electronic discovery case summaries are being collected: Preston Gates' Electronic Discovery Case Database (https://extranet.prestongates.com/ eDiscovery/) and Sensei Enterprises' Electronic Evidence Case Digest (http://www.senseient.com/case_search.asp) STAGES IN EDD (with examples of products and services)

Assessment. Determine the appropriateness, scope, approach and direction of e-discovery in your case, all within the context of all other required discovery. (EDD consultants, project managers, litigation support tools (e.g., CaseMap) Project Management. Establish leadership and add outside experts, vendors and service providers to your core group of associates and paralegals. (EDD consultants, project managers, service divisions of EDD vendors) Computer Forensics. Find information, recover data, establish the chain of custody and the like through scientifically valid processes. (Computer forensics experts, EnCase and other forensic tools) Conversion and Storage. How you will store the data? Will you use native file formats or convert files to formats you can work with. (Imaging and service bureaus, Adobe Acrobat, specialized EDD software tools) Records Management. Do you need to involve a vendor or service with expertise in managing databases or other collections of data? (Databases, hosted data repositories and specialized EDD services) Search. You may prefer to call this stage "Find." Use search tools to determine what you have conduct your review. (Enterprise and EDD search tools (e.g., DolphinSearch, Attenex, Recommind and others) Integration. Incorporate your e-discovery work back into your standard litigation management tools. (Litigation database tools (Summation, Concordance, CaseLogistix) and litigation management tools (CaseMap) Presentation. Information in a digital format can be used by a variety of presentation tools. (PowerPoint, TrialDirector, presentation services) THREE BIG RISKS IN NOT DOING EDISCOVERY RIGHT Spoliation – Destruction of evidence that can lead to negative inferences about why the evidence was destroyed.

© 2007, Dennis Kennedy


Non-compliance/sanctions – Failure to fully comply with electronic discovery requests can lead to sanctions. Missing key evidence – Failing to find or consider evidence that might change the outcome of a case. THREE FACTS TO KEEP IN MIND It is extremely difficult to delete all copies of everything. The act of turning on a computer changes files and may cause serious evidentiary issues. Judges' tolerance for lawyers not knowing basic technology issues is decreasing. THREE PRACTICAL TIPS IN ELECTRONIC DISCOVERY Use "paper" analogies – ask "What would happen if this were paper?" Develop the litigation support manager position in your firm and pay attention to trends in this area. Cooperate with clients and opposing counsel to make the process easier, more effective and cheaper. THREE IMPORTANT RECENT DEVELOPMENTS Records management and compliance issues (rather than e-discovery) is becoming the main driver for corporate efforts to deal with electronic data. Approval of amendments to Federal Rules of Civil Procedure shows that electronic discovery has "officially arrived" and can no longer be downplayed or ignored. Consolidation and mergers among electronic discovery vendors has begun and will likely make vendor selection even more confusing in the short-term.

© 2007, Dennis Kennedy


EDD-ucating Yourself About Electronic Discovery
by Dennis Kennedy and Tom Mighell (October 2006)

definition and some useful starter links. Expect the information for this entry to grow and become more valuable over time. KenWithers.com (http://www.kenwithers.com) is the home page of EDD expert Ken Withers and is loaded with useful information and resources. We especially recommend Ken's list of links at http://www.kenwithers.com/links/index.html. ARMA International (http://www.arma.org) – This association for Information Management Professionals offers loads of great information on electronic records, compliance, and risk management. Note: you’ll have to pay for most of the publications offered here. Federal Judicial Center's List of Resources for Civil Cases (http://tinyurl.com/r95we) collects useful resources and forms as well as linking to a similar collection of resources for criminal cases. Computer Forensics Resources (http://www.abanet.org/lpm/lpt/articles/ slc06051.html) covers the companion topic of computer forensics. Every lawyer who deals with electronic discovery must have a basic understanding of the underlying technologies. This "Strongest Links" article by Dennis Kennedy from June 2005 has the links you need to become a veritable CSI Computer Forensics Expert. Okay, maybe not. Socha Consulting (http://www.sochaconsulting.com/) is the home page of George Socha, one of the premier experts on digital discovery. His yearly electronic discovery survey is a must-read for anyone who wants to understand the scope of the EDD industry and the companies involved. His 2006 EDD Survey (http://www.sochaconsulting.com/ 2006survey.htm) was recently released. You can also find information there about the Socha Electronic Discovery Reference Model Project. Electronic Discovery Resources (http://www.denniskennedy.com/reso urces/legal-tech-central/edd.aspx) is Dennis Kennedy's collection of helpful links on a variety of EDD issues, including his. His blog posts on EDD can be found at http://www.denniskennedy.com/archives/ cat_electronic_discovery.html and a PDF of his slides from his presentation on EDD Trends can

It was back in July 2004 (http://www.abanet.org/ lpm/lpt/articles/slc07041.html) when Tom published the first Strongest Links article on the subject of electronic discovery as part of an influential EDD-themed issue of Law Practice Today. Since that time, the electronic evidence landscape has changed considerably, and EDD is more important that ever. We thought it would be a good idea to revisit those links, and provide an update to those of you who are still learning about the intricacies of ediscovery. Which, really, is probably all of us. Portals - great starting points where you can find lots of information and pointers to other resources. DiscoveryResources.org (http://www.discoveryresources.org) reigns as the best one-stop shop Internet resource on electronic discovery. Julia Wotipka has done an amazing job with this educational site produced by EDD vendor Fios, Inc. From articles and columns (including one that we write with Evan Schaeffer) to webinars, podcasts and forms, you can find almost anything you want about electronic discovery here. (See disclosure statement below). Law.com's Electronic Data Discovery (http://www.law.com/jsp/legaltechnology/ edd.jsp) gives you the answer to the question "what does the extra D in EDD stand for?" Law.com uses this page as a handy place to collect its EDD articles from across its many publications. Applied Discovery's Law Library (http://www.lexisnexis.com/applieddiscovery/ lawLibrary/default.asp) is the home of white papers, articles, case summaries, model forms and more. General Resources Wikipedia on Electronic Discovery (http://en.wikipedia.org/wiki/ Electronic_discovery) gives you the basic

© 2007, Dennis Kennedy


be found at http://www.denniskennedy.com/pdfs/ Kennedy2006EDDTrendsppt.pdf. Technorati Tag "Electronic Discovery" (http://www.technorati.com/tag/ electronic%20discovery) lets those into the RSS thing and enjoy receiving blog posts in your newsreader, subscribe to the "electronic discovery" tag at Technorati and watch the news come directly to you. Blogs -- Surprisingly, there have not been a lot of weblogs on the subject of EDD. However, those weblogs that do discuss the topic are terrific. Electronic Discovery Law (http://www.ediscoverylaw.com/) is published by the firm of Preston, Gates & Ellis. The blog primarily analyzes court decisions on e-discovery issues. You'll also find posts on the new amendments, as well as an amazing e-discovery case database (https://extranet.prestongates.com/eDiscovery/) that allows you to tailor your search to any one (or more) of 19 different attributes of electronic evidence. Electronic Discovery and Evidence (http://arkfeld.blogs.com/ede/) provides regular commentary on electronic discovery from one of the foremost authorities on EDD, Michael Arkfeld. Information Governance Engagement Area (http://infogovernance.blogspot.com/) is probably the best place on the Internet to find the latest news on electronic discovery and the very newest info on EDD technology developments. It's published by Rob Robinson, "with the goal of aggregating key compliance and electronic discovery news for further review, study, and consideration by legal and corporate professionals." It's a must-read for news on electronic documents. Sound Evidence (E-Discovery Simplified) (http://soundevidence.discoveryresources.org/) is authored by Mark Mack, Technology Counsel and Director of Fios, Inc., a major e-discovery provider. She's well-positioned to talk about the subject of EDD, being both a lawyer and a vendor of electronic evidence services.

Evan Schaeffer's Illinois Trial Practice Blog (http://www.illinoistrialpractice.com) covers electronic discovery on a regular basis. Evan coauthors the Thinking E-Discovery column (http://www.discoveryresources.org/ 04_om_thinkingED.html) with Tom and Dennis. The Estrin Report (http://estrinlegaled.typepad.com/my_weblog/) is a group blog created for professional paralegals that often covers electronic discovery topics (http://estrinlegaled.typepad.com/my_weblog/ electronic_discovery/index.html). Amendments to the FRCP -- Every lawyer should be aware of the new amendments concerning Electronically Stored Information (ESI). Fortunately, there is no shortage of information to be found on the Internet on this subject. The Amendments Themselves (http://www.uscourts.gov/rules/Reports/ST092005.pdf) (PDF File) should be your first stop. The full text of the rules are set forth here, along with lengthy commentary on what is to be expected under the new rules (Note: this file contains all of the proposed amendments, not just the ones dealing with ESI -- those rules begin on Page 103). The 2006 Discovery Amendments to the Federal Rules of Civil Procedure (http://www.abanet.org/lpm/lpt/articles/ tch08061.shtml) is our favorite summary article. It's from Past LPM Chair and Philadelphia lawyer Carl Roberts and provides a great summary of the amendments to the rules, and what they mean for lawyers. Working Through the Practical Implications of the Amended Federal Rules of Civil Procedure (http://www.fiosinc.com/resources/frcp/) – you’ll have to register for this free white paper, but it’s definitely worth the effort. The article offers a great chart describing the rule, its purpose, and the realities surrounding its implementation. Cases - There are several good resources focusing on case law relating to electronic discovery issues: Applied Discovery's Case Summaries (http://www.lexisnexis.com/applieddiscovery/

© 2007, Dennis Kennedy


lawLibrary/caseSummariesByTopic.asp) lets you view cases by topic, jurisdiction, or in alphabetical order. You can also sign up for email alerts when new case summaries are added to the Library. Sensei Enterprises E-Evidence Cases (http://www.senseient.com/case_search.asp) is where Sensei Enterprises, the company of LPM regulars Sharon Nelson and John Simek, features a fully-searchable case database on its website. Cricket Technologies Case Index (http://igdev.crickettechnologies.com/case_studie s/search/index.php) is another great case index. You must be a registered user to use the Case Index; fortunately, registration is free. Annotated Case Law on Electronic Discovery (http://www.fjc.gov/public/pdf.nsf/lookup/ ElecDi09.pdf/$file/ElecDi09.pdf) is EDD expert Ken Withers' outline of EDD cases. Articles, Podcasts, Seminars and Webinars Here's a sampling from the many articles, audios and online seminars on EDD that are freely available. The Sedona Principles Addressing Electronic Document Production (http://www.thesedonaconference.org/ dltForm?did=7_05TSP.pdf) is probably the most influential document in all of electronic discovery. There are other resources at http://www.thesedonaconference.org/content/ miscFiles/publications_html?grp=wgs110. LawPRO Magazine's Electronic Discovery Special Issue (http://www.practicepro.ca/ LawPROmag/LawPROmagazine4_2_Sep2005.p df) has a great collection of general articles, giving full and accessible coverage, with a bit of a Canadian focus. There's also a supplemental page of useful resources at http://www.practicepro.ca/practice/ SuppRes2eDiscov.asp. Fios Podcasts on Demand (http://www.fiosinc.com/events/podcasts.html) is a treasure trove of audio seminars/podcasts featuring experts on a great variety of EDD topics. One of the best set of resources on EDD that you can find.

Craig Ball -- Articles on E-Discovery (http://www.craigball.com/articles.html) contains seventeen articles on electronic discovery, presentation technology, cyber-sleuthing, and more. Pay attention to his combined article 5 on EDD from Craig Ball (http://www.craigball.com/ Five%20on%20EDD-August%202006.pdf) as well as Metadata: Beyond "Data About Data" (http://www.craigball.com/metadata.pdf) article it has great information on the subject of metadata. Sensei Enterprise's Publications List (http://www.senseient.com/default.asp? page=publications/publications.htm) gives you links to a long list of EDD articles from the EDD team of Sharon Nelson and John Simek, including a link to their book, with Bruce Olson, called The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines (American Bar Association, 2006). Ross Kodner's Electronic Discovery Presentation Slides (http://tinyurl.com/jgglf) provides coverage of legal, technical and practical EDD issues from legal tech maven Ross Kodner. Rob Robinson's EDD Presentation Videos "Clausewitz and eDiscovery" (http://www.wrrobinson.com/Clausewitz/player. html) and "Aesop's Discovery?’Belling the Cat' and Electronic Discovery" (http://www.wrrobinson.com/Aesop/player.html) take a thoughtful look at electronic discovery in an engaging video format. LPT Virtual Roundtable: A Gold Mine of Electronic Discovery Expertise: A Conversation Among Veterans of Electronic Discovery Battles (http://www.abanet.org/lpm/lpt/articles/ ftr07041.html) required a very big table to seat all of the EDD veterans who shared their collective, practical experience in this wellregarded article. Vendors -- there are a lot of vendors offering ediscovery services -- a lot. At last count, over 5,000 companies were offering some type of EDD service. What sets the following apart is their desire to educate lawyers and others on the issues -- the resources maintained by these sites are terrific and set a high standard and a great

© 2007, Dennis Kennedy


example of what we like to see from vendor sites.. Applied Discovery (http://www.lexisnexis.com/applieddiscovery) – Applied Discovery offers white papers, case summaries (http://www.lexisnexis.com/ applieddiscovery/lawLibrary/caseSummariesByT opic.asp), and free case summary alerts on ediscovery rulings. You’ll also find a listing of relevant court rules from around the country (http://www.lexisnexis.com/applieddiscovery/ lawLibrary/courtRules.asp), articles (http://www.lexisnexis.com/applieddiscovery /lawLibrary/articles.asp), and a free newsletter (http://www.lexisnexis.com/applieddiscovery/ lawlibrary/newsletter.asp). Fios (http://www.fiosinc.com/resources/ index.html) provides a wide range of useful educational resources. Kroll Ontrack (http://www.krollontrack.com) offers a similarly generous collection of legal resources (http://www.krollontrack.com/ legalresources/) including forms, newsletters and other information. Litigation Support Vendors Association (http://www.lsva.com), while not an e-discovery vendor, has good information, links and job listings. Conclusion: There's a heckuva lot to learn about electronic discovery. If you are feeling a little overwhelmed by EDD, there's good reason for that feeling. However, the good news is that there are tons of very high quality free resources on EDD easily reachable via your browser. Spend some time exploring this links and you'll become well-"edducated" about EDD.
DISCLOSURE: DiscoveryResources.org and Fios are sponsors of Dennis's blog and website. Dennis Kennedy (dmk@denniskennedy.com) is a wellknown legal technology expert and technology lawyer based in St. Louis, Missouri. An award-winning author, he has written extensively on electronic discovery and other legal technology topics and also speaks frequently on these matters. His website (www.denniskennedy.com) and blog are highly-regarded resources. Tom Mighell (tmighell@swbell.net) is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He is a frequent speaker and writer on the Internet, legal technology, and electronic discovery. He

publishes the Internet Legal Research Weekly and legal technology weblog Inter Alia (www.inter-alia.net).

© 2007, Dennis Kennedy


Dennis Kennedy
Dennis Kennedy (dmk@denniskennedy.com) is a well-known legal technologist, information technology lawyer, author and speaker based in St. Louis, Missouri. He is also the author of the technology column in the ABA Journal and is co-author of a book tentatively called "A Lawyer's Guide to Collaboration Technologies' due out in Spring 2008. He has written extensively on electronic discovery, including as a co-author of the column, "Thinking E-Discovery" 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 and 2003 TechnoLawyer Contributor 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. Dennis is currently a member of the American Bar Association Law Practice Management Section's Council and Webzine Boards, and served on the planning board 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.

© 2007, Dennis Kennedy


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