10/22/2007

Electronic Discovery: Times are Changing, Are You Ready? October 16, 2007 Dennis Kennedy

Electronic Discovery: Times are Changing Are You Ready? Changing, October 16, 2007 Dennis Kennedy

What We’ll Cover
• Setting the Stage • Times are Changing – 2007 • Times are Really Changing – Beyond 2007 • Getting Ready •Q&A

1

10/22/2007

My Approach Today

The sum of the expertise of the people in the audience is greater than the sum of expertise of the people on stage. – Dave Winer

Conventional Wisdom

I. Overview / Basic Concepts

2

10/22/2007

Lawyers and Electronic Discovery

Guiding Principle #1
Vendors

Lawyers
Clients Courts

Where Lawyers Believe They Are . . . and Where They Want to Be

Guiding Principle #1A
Vendors

Lawyers

Clients

Courts

Where Others Want Lawyers to Be

3

10/22/2007

Guiding Principle #1B
Vendors

Lawyers

Clients

Courts

Where Others Really Want Lawyers to Be

Guiding Principle #2
Electronic Discovery is a Subset of Modern Discovery
or Does E-Discovery Really Differ From Plain Ol’ Discovery?

Guiding Principle #3

There is a (Growing) EDD Gap

4

10/22/2007

Gap Analysis

Where We Want to Be

The Gap

Where We Are

Two Big Words

First Word

Disintermediation

5

10/22/2007

Second Word

Reintermediation

Simple Question #1

How Ho Do You Stay Yo Sta Relevant?

Simple Question #2

How Do You Help People Understand That You Are Still Relevant?

6

10/22/2007

Vendors

Clients

Lawyers

Courts Greatest Opportunity

II. Electronic Discovery Technology Trends 2007

1. Records Management
• Records Management, Not EDD, is the Driver • EDD as Part of a Larger Process • The Focus Moves Away From Lawyers “Calling the Shots”

7

10/22/2007

2. Toward the One-Stop Shop
• EDD Can Be a Complicated, Multistep Process • Sifting Through Programs, Providers and Partners • An EDD General Contractor?

3. Metadata Makes Headlines
• Simply py Understanding Metadata is 90% of the Battle • Will Make Headlines • Collaboration vs. Publication

4. The Coming Shakeout
• 5,000(!) EDD Vendors • Confusing More Confusing, Confusion, and Then Some Clarity • Monitor Carefully and Look for Interoperability and Transition Routes

8

10/22/2007

5. Client-Driven and Court-Driven
• Motivation Comes from Many Expensive Frustrations F t ti • Patience Running Out • Look for Directives and Demands, Not Requests

6. Ethical Wildcards
• What in the World are State Bars Doing? • What is Effective Representation? • Watch the Malpractice Carriers

7. Easy or Scary?
• EDD is Really Scary, Right? g • Are We Making This Too Hard? • Building on What We Know and Analogies

9

10/22/2007

8. Project Management
• EDD is All About Project Management • These May Be New Skills for Lawyers • What is the New Team?

9. Litigation Support Managers
• The Interface Between IT and the Litigation / EDD Process • High Growth Area • Identify Assets, Move People into Position, Coordination

10. One Big Thing That Must Happen
• Who Must Be Talking to Each Other? • Are They? • Why Not?

10

10/22/2007

III. Electronic Discovery Technology Trends 2007 and (Most Importantly) Beyond

1. EDD as The Tail, Not the Dog
• Records Management, Not EDD, is the Driver • EDD as Part of a Larger Process • ILM and Compliance

11

10/22/2007

2. Underestimating Lawyer Inertia
• FRCP Amendments = Y2K??? • Lawyers Are Very Innovative – About Not Changing Things • Will There Be a Tipping Point?

3. Moving Beyond Metadata and Documents
• What is a Document Anymore? • Authentication and Originals • Discovering Data Warehouses?

4. Unpredictable Court Decisions
• Retaining Data in RAM??? • If You Don’t Educate Judges, Judges Will Educate You • The Role of Education

12

10/22/2007

5. Technology Outpaces Rules
• Unpacking ESI • Where Isn’t There Discoverable Data? • Problems with Old and New Technologies

6. Changing the Focus to Reasonable Processes and Procedures
• What Standards are Reasonable? • What Actions are Defensible? • Are Processes and Procedures the Appropriate Focus?

7. Data Explosion
• IM Audio, Video, IM, Audio Video Databases • ASPs, Hosted Services, Home Offices • Google and Other Data Aggregators

13

10/22/2007

8. Court-, Client-, Vendor-, Regulator-, or Lawyer-driven
• Lawyers are the Chokepoint • Internet Routes around Chokepoints • Where Do We Look for Leadership?

9. Technology Counsel
• The Importance of Litigation Support Managers • The New Role of Technology Counsel • Who Can Be at the Intersection?

10. Unintended and Unexpected Consequences
• Forensics and Anti-Forensics • John Lennon – “Everything is the opposite of what it is, isn’t it, Harry?” • Flipping Assumptions and Conventional Wisdom on Their Heads

14

10/22/2007

11. EDD Information Overload and Information Underload
• Information Overload • Information Underload • Is It Even Possible to Keep Up with All of This?

12. EDD in the Cloud
• Where Does Information Reside? R id ? • You Hear About the Cloud Everywhere Except in EDD • What Does EDD Mean in the Cloud – Web 2.0, Virtualization, and Beyond

13. The EDD Gap
• Some Firms Get It • Many Firms Do Not • What Does That Mean and Where are the Opportunities?

15

10/22/2007

14. Who is the EDD Buyer Today and Tomorrow?
• Products and Services • Who is Making the Call? • How Do We Determine Who is the Buyer and How Do We Reach Them?

15. Will We Reach EDD 2.0 Before Most Get to EDD 1.0?
• Dennis’s Notion of EDD 2.0 • But . . . Have We Even Gotten to EDD 1.0? • Targeting the Future

16. The Coming Singularity
• Kurzweil and the Singularity Si l it • Is the Singularity Here? • Does the Pace Only Increase and the Complexity Only Become More Complex (Faster)?

16

10/22/2007

17. The Continuing Shakeout
• Movement from Huge Players Outside the Legal Sector • Expansion from Nontraditional Players • Uncertainty Gives Lawyers Another Reason Not to Buy

18. Hosted Services and SLAs
• The Gradual Movement to SaaS • SLA Becomes a Magic Word • Negotiated Agreements

19. Eliminating the Humans
• Automated Review • Automated Business Rules • What Belongs in the Human Domain?

17

10/22/2007

20. New Search Frontiers
• Foreign Languages • Images, Audio, and Video • One Tool or Many Tools?

21. Unstructured Data
• Data Data Data, Everywhere • The Quest for Structure • Google Expectations Rule?

22. Outsiders Moving In
• Non-EDD Players • Big and Little • I’m No Oracle, But I Think About Oracle, Don’t You?

18

10/22/2007

23. EDD Goes International
• Multinational Corporations • Data and Resources Move Around the World • What Happens When Data Located Around the World

24. Best Practices and Standards
• Standards Boards • Best Practice Guidelines and Groups • Just a Pipe Dream?

25. Integration and Platforms
• Tools That Work Together with Common Interfaces • EDD Tools and Platforms • Open vs. Closed?

19

10/22/2007

26. Collaboration and Workflow
• Project Management Gets Bigger • Changes in Staffing (Non-lawyers) • What Tools?

My Vote for the Most Important Trend is . . . .

EDD GAP

IV People Get Ready, There’s a Train a-Comin’

.

20

10/22/2007

Drawing Some Conclusions
• You Must Treat EDD as an Evolving, Dynamic Process • Project Management Skills are Vital • Who Calls the Shots? • What Role Do You Want to Have and Will You Be Able to Keep It?

The Lawyer’s Siege Mentality

The Lawyer’s Brain When Talking to an EDD Vendor
Don’t Wanna Hear This

NO!

NO!
Don’t Wanna Hear This

21

10/22/2007

The Lawyer’s Brain After Making Decision to Buy
Start Yesterday? Start Yesterday?

ASAP
Cut training?

ASAP
Cut training?

The 80/20 Rule
• 80% Listening • If You Are Talking/Selling More T lki /S lli M Than 20%, You Won’t Win Over Lawyers

Defusing Fear and Disarming EDD Vendors, A New Perspective

22

10/22/2007

Vendors

Clients

Lawyers

Courts Greatest Opportunity

Action Steps

• • • • •

Communication Continuing Education C ti i Ed ti Collaboration Community Choices, Control, Confidence

What Directions and What Steps Make the Most Sense for You?

23

10/22/2007

QUESTIONS?
Dennis Kennedy The Dennis Kennedy Law Firm, LLC 1276 Bridle Road St. Louis, MO 63119 314-963-9798 www.denniskennedy.com dmk@denniskennedy.com

24