New Trend? The Electronic Discovery Special Counsel

Ron Friedmann has a great post on the nascent trend of law firms designating lawyers as “EDD special counsels” to help oversee and manage electronic discovery efforts.
He points to an article in Legal Technology News (free registration required)that discusses the idea in detail and talks about some examples of firms who are taking or considering the approach.
I wholeheartedly agree with Ron when he says, “In my view, this is a good trend. Firms would be well-served if the lawyers in these roles had not only EDD expertise, but also project management expertise. It’s not enough to know the rules of discovery and the technology – succeeding in large EDD matters also requires project management discipline.”
I highlight the project management issue whenever I speak about electronic discovery. George Socha and I discuss the issue in some detail in our Electronic Discoverers column called “Looking into the Electronic Discovery Crystal Ball for 2005—Predictions, Observations and Opinions”. You can also hear us talk about the topic in the archived version of our webcast called the EDD Grande Process at the DiscoveryResources.Org site.
By all means, however, if you are involved in electronic discovery, especially as a client, you will want to take the trouble of filling out the registration form for the Law Technology News article and reading the article. I guarantee it will be an eye-opener.
It may not be the money quote, but the most amazing quote in the LTN article is:
“Production goes much smoother after EDD, if not the review process,” he says. “But I think [attorneys] can review faster on paper than online.” (emphasis mine)
I simply don’t know what to say about that last sentence.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

A Few Good Electronic Discovery Articles

There are two good articles on Law.com today that present a good view of the current world of electronic discovery.
In Justices Skeptical of DOJ’s Claims About Andersen Document Retention, Tony Mauro covers the arguments before the U.S. Supreme Court in the case involving Arthur Andersen’s “reminder” of Enron’s document retention policy that it is argued came too close in time to an investigation targeting the company. As you read the excerpts from the arguments, you’ll see that the case case raises difficult questions with potentially far-reaching practical implications. How clear is a standard like “reasonable possibility of an investigation” when you are implementing a document retention policy that involves deletion of documents?
The money quote:
O’Connor too fretted about the impact on small businesses and on lawyers who advise companies. “How is a person supposed to know what to do? How is a lawyer supposed to know?” she asked.
The second artice, E-Discovery and Inevitable Litigation, attempts to answer some of the questions posed by the Arthur Andersen case. For the most part, the authors resist the impulse to scare people with potential horror stories and stick to providing solid advice and recommendations. However, after you read the other article I mentioned, I’m sure that you will be jarred when you read the sentence that begins “The policy needn’t be written . . . .”
My quibbles aside, this article is a handy outline of where we are in electronic discovery today that covers issues from the points of view of both lawyers and clients.
The money quote:
6. Just as inside counsel should learn the basics of information technology, the company’s information technology personnel could benefit from learning the basics of discovery obligations and the consequences of spoliation. As Zubulake V demonstrates, the more that legal personnel and information technology personnel can speak one another’s language, the less likely spoliation is to occur.
7. Educate your company’s regular outside counsel about the company’s document-retention policies and data-retention and storage architecture. It may be beneficial for outside counsel to talk to the company’s information technology personnel directly.
I may want to substitute the word “will” for “may” in that last sentence.
If you deal in any way with electronic discovery or document retention issues, you’ll find it well worth your while to spend a few minutes today reading both of these articles. If your interest in e-discovery is piqued, be sure to check out Merrill’s on-demand seminars on specific e-discovery topics.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Why Lawyers and Legal Bloggers (Blawgers) Love Google

I couldn’t help but notice how Ernie and Matt have been spending their time running Google searches about themselves and then applauding the wisdom of Google. I was a little surprised that they would resort to this type of posting, which was largely pioneered by me at times when I was desperate for material and seeking external validation for my efforts.
I really want to be impressed with Ernie’s results and Matt’s results, but, frankly, I’m not as impressed as they are (and who could be, really?). Here’s why:
In the category that really matters to all legal bloggers, note that I, Dennis Kennedy, am the first result in a Google search today for “coolest legal blogger” and “coolest legal blog.”
I’m also thrilled to have Google rank my blog as the #1 result for “best named legal blog.”
Among other honors I now have in Google are being the first result for:
best legal blogger
best legal blog
most famous legal blogger
legal blogger you most want to have a beer with
most important dennis kennedy in the world
leading legal thinker named dennis kennedy
legal blogger who should be paid a lot more money
best writer of the legal bloggers
Oh, Google, you are making me blush.
My colleagues at Between Lawyers have also done well.
Congrats to Tom Mighell – “most admired blawger
Denise Howell – “most respected blawger” and “best litigator of the legal bloggers.” Denise is also the “happiest blawger.”
Unfortunately, Google was not so kind to Marty Schwimmer who received only the “best marty schwimmer who authors the trademark blog” award, but I have no doubt he’ll find a few others.
Other Google awards of note:
In a bit of a surprise, Jeff “LawTech Guru” Beard took the “most ironic blawger” award.
Evan Schaeffer walked away with the award for “best coffee mug given away by a legal blogger.” I was shocked to defeat Evan in the category of “funniest legal blogger.”
Of course, Google has a changing dynamic and can be, at times, a bit capricious in handing out favored search rankings. Your results may vary, depending upon (1) when you click any of the links in this post and (2) the efforts of others currently less favored by Google to optimize the favor with which Google treats them.
Not surprisingly, Google also found me as the first result on “most nonbillable hours today of legal bloggers.” Back to work.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Might Adobe Acrobat 7 be the Tool of Choice for Small and Low Budget Electronic Discovery Cases?

Rick Borstein of Adobe was in St. Louis last week. Over lunch, we talked about Acrobat 7 and the ways lawyers use (and don’t use) Acrobat in their work.
I’ve been thinking a lot about a couple of topics in that conversation. One topic that fascinates me relates to electronic discovery in small cases.
I’m still trying to think this through but I’m coming to the tentative conclusion that Acrobat 7 might be a single tool that can cover almost all of the bases for a litigator with a case that has a modest number of electronic files involved in electronic discovery. By that, I mean a few files, a few hundred files, a few thousand files, perhaps more, depending on your facility with Acrobat.
My hypothesis is this: Using Acrobat, you can collect, gather, scan, catalog, search, produce, manage and even display files in court. You will have to dig deeper into the feature set than most lawyers do, but the tools are definitely there. Of course, before people panic, I’m not suggesting that the use of Acrobat will or should take the place of needed computer forensics experts and tools where they are needed.
Think about it with me. It offers the attraction of using an existing (inexpensive program) in better ways, keeping your work in one program rather than in many programs, and keeps things simple when they can be kept simple. That has a lot of appeal.
DISCLOSURE: Rick did buy lunch last week and is sending me a copy of Acrobat 7 to experiment with. However, I own Acrobat 6 and bought it myself, and would have bought version 7 if Rick hadn’t been so generous. I truly do not expect this to tempt me to call things in any other way than as I see them, and would be disappointed in you if you thought that it would.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

My Electronic Discovery Presentations for Merrill – New URL

I’ve recorded a set of on-demand seminars on electronic discovery topics for Merrill that can be accessed for free at http://www.merrillcorp.com/law/ .
The following seminars (each approximately 12 – 15 minutes, with PowerPoint slides) are currently available:
Computers and Copies – Is Every Step Traceable?
The Mysterious World of Metadata
The Many Places to Discover Data

In May and June, Merrill will add sessions on:
Developing a Team Approach to Electronic Discovery
and
Determining When to Use Electronic Discovery
I really like the format and these sessions wil give you a good introduction to the approaches that I’ll be taking in a new half-day seminar on electronic discovery that I’ll be announcing in the next day or two.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]