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10/22/2007

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

Electronic Discovery:
Times are Changing
Changing, Are You Ready?
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

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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

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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

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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

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Gap Analysis

Where We Want to Be

The Gap

Where We Are

Two Big Words

First Word

Disintermediation

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Second Word

Reintermediation

Simple Question #1

Ho Do You
How Yo Stay
Sta
Relevant?

Simple Question #2

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

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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”

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2. Toward the One-Stop Shop

• EDD Can Be a
Complicated, Multi-
step 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,
Confusing More
Confusion, and Then
Some Clarity
• Monitor Carefully and
Look for Interoperability
and Transition Routes

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5. Client-Driven and Court-Driven

• Motivation Comes from
Many Expensive
F t ti
Frustrations
• 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

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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?

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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

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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

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

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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

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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
R id ?
Reside?
• 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?

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

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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?

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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?

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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?

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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’

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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

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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
T lki /S lli M
Talking/Selling More
Than 20%, You
Won’t Win Over
Lawyers

Defusing Fear and Disarming
EDD Vendors, A New Perspective

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Vendors

Clients Lawyers

Courts

Greatest Opportunity

Action Steps

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

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

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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

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