Kennedy Edd Trends Presentation Oct 2007

10/22/2007

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

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

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

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My Approach Today

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

Conventional Wisdom

I. Overview / Basic Concepts

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Lawyers and Electronic Discovery

Guiding Principle #1 Vendors

Lawyers Clients

Courts

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

Guiding Principle #1A Vendors

Lawyers

Clients

Courts

Where Others Want Lawyers to Be

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Guiding Principle #1B Vendors

Lawyers

Clients

Courts

Where Others Really Want Lawyers to Be

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

Guiding Principle #3

There is a (Growing) EDD Gap

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Gap Analysis

Where We Want to Be

The Gap

Where We Are

Two Big Words

First Word

Disintermediation

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Second Word

Reintermediation

Simple Question #1

Ho Do You How Yo Stay Sta Relevant?

Simple Question #2

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

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Vendors

Clients

Lawyers

Courts Greatest Opportunity

II. Electronic Discovery Technology Trends 2007

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EDD GAP

.

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

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

The Lawyer’s Siege Mentality

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

NO!

NO! Don’t Wanna Hear This

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

ASAP Cut training?

Start Yesterday?

ASAP Cut training?

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

Defusing Fear and Disarming EDD Vendors, A New Perspective

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Vendors

Clients

Lawyers

Courts Greatest Opportunity

Action Steps

• • • • •

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

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

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

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