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

© 2007, Dennis Kennedy 1


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
© 2007, Dennis Kennedy
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 simple-
minded 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
2
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-
© 2007, Dennis Kennedy
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 "de-
duping" 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 sub-
niche software tools. You might often find that,
while you thought you needed a program,
someone is trying to sell you on a hosted Internet
3
service. These are new and difficult-to-
understand 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
© 2007, Dennis Kennedy
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
4
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 over-
kill 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 case-
by-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 attorney-
client 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),
© 2007, Dennis Kennedy
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
5
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 cost-
prohibitive, 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 well-
known 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.

© 2007, Dennis Kennedy 6


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)
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
© 2007, Dennis Kennedy
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 technology-
related developments, we overestimate the short-
term 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
7
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

© 2007, Dennis Kennedy 8


Unexpected Benefits of
Electronic Discovery
In some ways, we are in the “Perry Mason” era
of electronic discovery in the minds of many
lawyers. You hear a lot of talk about using
electronic discovery to find the “smoking gun”
email or the single bit of data that breaks a case.
While there are some great stories along these
lines, they are not everyday occurrences in day-
to-day world of electronic discovery. Focusing
on the search for the “smoking gun” may cause
you to overlook some of the many other benefits
of electronic discovery, many of which fall into
the “better, faster, cheaper” category.
1. Efficiency. Many electronic discovery
veterans tell us that using electronic discovery
has made them more efficient. They can reduce
the time they need to speed on mundane matters
and free up more time for higher-level activities.
There are plenty of examples of millions of
documents being put together in databases and
being processed for discovery in a matter of days
when the same work would have required
months and an army of associates in the past. We
are seeing more and more examples today of
what many lawyers have long hoped computer
processing would bring to them.
2. Cost Savings. Time savings also mean cost
savings. One example I know involved a
discovery process that was estimated to take six
months and cost $500,000 in legal fees. Using
LEXIS’s DolphinSearch tool, the same work was
done in three weeks, at a third of the cost
(primarily software fees), and the supervising
attorney felt that the software found at least two
key things that would probably have been
overlooked if the manual process had been used.
Do your clients hate to see you charging them for
copies by the page as you copy and recopy the
same documents? Lawyers are finding many new
ways to cut costs and save money as side benefits
of electronic discovery.
3. Effectiveness. Many lawyers also point out
that electronic discovery makes them more
effective. I mentioned that some of today’s
search tools can actually find relevant documents
by “pattern recognition,” “machine learning,”
© 2007, Dennis Kennedy
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
9
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.

© 2007, Dennis Kennedy 10


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
© 2007, Dennis Kennedy
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
11
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.
© 2007, Dennis Kennedy
Your job is to kind a place in that range that
works best for that case.
In this respect, as in many others, it is important
to see electronic discovery not as some new and
independent process, but as simply a subset of
good discovery practices. Asking the same
questions, determining the context and
understanding how information is created,
managed and stored will be valuable components
of your strategy. You'd like to get as little
information as you need to work with and still
have all the information you need for your case.
2. Targeting the Most Likely Places
What are the best places to look for data these
days? It depends on the case that you have. A
one size fits all approach probably will not work
today, if it ever really did so.
Consider how the organization works with its
data. If you are looking at key individuals, you
will want to find out how these individuals
actually work. Do they email copies of
documents to themselves to work on? Do they
use a laptop or PDA? Do they burn CDs or
DVDs? Do they use a USB flash drive? In the
latter case, trying to discover a laptop’s hard
drive while neglecting a flash drive may well
cause you to miss key information. Look for the
devices that people use to transfer data from
machine to machine.
Consider the term “network” in an expansive
sense. There may be multiple servers in multiple
locations. There will be network backups, and
there may well be archives, storage servers, off-
site backup and even full disaster recovery
installations that mirror the actual network
setups. I marvel at anyone who thinks that they
can be certain of deleting every copy of a
document in that type of setting. Even then,
unused or discarded hard drives may well retain
the data originally stored on them, potentially
making it available for retrieval.
3. Not Overlooking Rich Targets
A danger today is overlooking rich data targets.
You might overlook likely places, ask the wrong
questions, not follow-up on answers you get or
simply be unaware of technology developments.
12
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.
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
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
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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
© 2007, Dennis Kennedy
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.
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1. No One Stop Shop
Here's a key point. Do not expect to find a one-
stop shop for all electronic discovery purposes.
Almost all vendors will stick with what they do
best and recommend or bring in other vendors for
different parts of the process. For example, most
computer forensics firms will not handle records
management, and vice versa.
2. Matching Expertise to the Appropriate
Stage and Tasks
You will want to match the right people to the
right jobs. Watch out for over-reaching or any
place where someone is put in a position to do
work outside of or beyond their expertise. It's a
cliché to say that a chain is only as strong as its
weakest link, but that will be the case.
3. Putting Together a Team
Do you want to be a leader or a follower? How
can you lead if you don't assemble the team
yourself? Someone will be taking charge of the
team selection.
E-discovery reminds me of something
management guru Tom Peters has said about the
"Hollywood model" of project teams. Much as in
the production of movies, you will independent
experts assemble and re-assemble into teams for
different projects based on different needs and
required skill-sets. Some may work together on a
regular basis, much like a great director and his
or her cinematographer, but others may work
together only every now and then. The idea is to
assemble the right team for the right project,
based on their experience of working together.
Lawyer as Project Manager
Trial lawyers like to try cases. The skills and
traits that make a great trial lawyer may prove
deadly in leading teams and managing projects.
Management skills are so important in the
electronic discovery process that you should try
to put ego aside and identify and use your best
project managers.
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
© 2007, Dennis Kennedy
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
15
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 16


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:
© 2007, Dennis Kennedy
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
17
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
© 2007, Dennis Kennedy
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?
18
How will you respond to that request? How will
you produce and work with electronic data? Is
learning how to handle it on the fly the best
approach? A burying your head in the sand
approach doesn't work well for ostriches, and it
won't work well for you.
Conclusions, Tips and Action Steps
Here are three action steps for you to take in the
next few days.
First, ask yourself if you are waiting for the
"right case" to come along. Jot down the
characteristics that will allow you to know that
you have found the right case. Decide whether
you are fooling yourself.
Second, pick up the file of case you are working
on. Write down some of the things that you
might reasonably expect to find in email in
relation to that case. Are you looking at email in
that case? Are there other cases where you might
expect to find similar things?
Third, call a client and talk to them generally
about the way they use and store data and what
there expectations in general are for electronic
discovery and how they expect you to conduct it.
Take good notes, study them and develop a "to-
do" list.
It's time to challenge your assumptions about
electronic discovery and to develop some
strategies. Most important, however, it's time to
treat electronic discovery as an essential
component of modern discovery, not as a
separate, optional item for certain cases.

© 2007, Dennis Kennedy 19


Practical Tips for Evaluating
E-Discovery Vendors and
Providers
By Dennis Kennedy, Evan Schaeffer and Tom
Mighell (March 2006)
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 e-
discovery. 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 e-
discovery 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
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 e-
discovery 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 10-
15 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
20
vendors who say that they are "full-service" e-
discovery 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 "full-
service" 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 "Full-
Service" 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 "e-
discovery 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.
© 2007, Dennis Kennedy
(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-to-
date 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.
21
(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
© 2007, Dennis Kennedy
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 e-
discovery 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 well-
known 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
22
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 23


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 long-
used 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.
© 2007, Dennis Kennedy
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 E-
Discovery 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,
24
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)
© 2007, Dennis Kennedy
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 E-
DISCOVERY RIGHT
Spoliation – Destruction of evidence that can
lead to negative inferences about why the
evidence was destroyed.
25
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 26


EDD-ucating Yourself About
Electronic Discovery
by Dennis Kennedy and Tom Mighell (October 2006)
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 e-
discovery. 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
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
27
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.
© 2007, Dennis Kennedy
Evan Schaeffer's Illinois Trial Practice Blog
(http://www.illinoistrialpractice.com) covers
electronic discovery on a regular basis. Evan co-
authors 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/ST09-
2005.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/
28
lawLibrary/caseSummariesByTopic.asp) lets you
view cases by topic, jurisdiction, or in
alphabetical order. You can also sign up for e-
mail 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.
© 2007, Dennis Kennedy
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 well-
regarded article.
Vendors -- there are a lot of vendors offering e-
discovery 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
29
example of what we like to see from vendor publishes the Internet Legal Research Weekly and legal
sites.. technology weblog Inter Alia (www.inter-alia.net).

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 e-
discovery 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 well-
known 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

© 2007, Dennis Kennedy 30

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 31