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Alex Lubarsky – Have some fun. This stuff may seem scary at first, but the more you get into it, it turns out to be really cool, colorful and eye-opening. Reminds me of snorkeling sort of. . . . I encourage attorneys to embrace EDD. Those that shy away from it thinking that it is too "arcane" or "technical" are doing both themselves and their clients a large disservice. In fact, such an attitude can even be considered malpractice. Visit the web sites of the major vendors (Kroll, Fios, Applied Solutions, Cricket, EED and others) to be treated to a wonderful array of articles and even archived video presentations which demystify EDD and explain how it can help your practice. Next, understand how your repeat clients keep their data. What server or node houses the .pst files of the executive team? How often is data archived? In which format is it archived? Is it easily restored? What passwords are required to get into the system to review data that may be requested by the opposition? What document management program is being used? Who are the record managers? How long are documents retained? If they are destroyed after time, how and by who? Do your client's retention policies comport with industry or legal retention standards? Finally, know the law of your jurisdiction. In many jurisdictions the term "document" has been codified to be synonymous with any electronic data item or compilation. Does your state or district subscribe to this interpretation? Are there any ground-breaking, seminal cases that come from the courts in which you practice and which dictate how electronic data may be admitted into evidence or deemed to be inadmissible?

David Goldstone – Dive right in — the water is fine. Anything you don't understand, make sure to ask until you do understand. I have seen attorneys be intimidated by jargon and bored by keeping track of the numbers. As a result, they ultimately make bad decisions that hurt their clients. Becoming fluent in electronic discovery is really not that hard, and will help you better serve your clients.

Skip Walter – (1) Use technology to fight technology. It’s time to stop trying to force the square peg of electronic information through the round hole of traditional discovery methods. One way to do this is to “stay native” as long as possible. Litigators are increasingly deciding to stop unnecessarily and wastefully converting all information to TIFF or PDF—only to throw 80% or more of it away because it’s irrelevant. (2) Work with experts. Even the best technology is no substitute for a knowledgeable discovery consultant. An experienced consultant or service provider will help you select the best technology for your unique situation and formulate a sound strategy. You can’t discount the value of a solid project manager to help manage the deluge of information coming your way. (3) Stay current with the proposed changes to federal rules and case law. Electronic discovery is still an emerging area. Proposed federal rules changes can be found online at http://www.kenwithers.com/rulemaking/civilrules/marcus040604.pdf and there also are several great vendor-sponsored and vendor-neutral sources of case law updates online.

Mark Yacano – Do your homework on e-discovery before you face it in one of your cases. Make sure you do sufficient investigation of e-discovery vendors before you hire one.

Mark Sableman – 1) Educate yourself. And in particular, become acquainted with some of the excellent computer forensics experts who can open your eyes about how electronic records work. 2) Don’t neglect the simple things and the simple tools. Get the full electronic version of documents and e-mails instead of accepting paper printouts; there is almost always more in the electronic version. And you can analyze many electronic records yourself, without any expert help, just using simple tools like the Windows “Details” view (showing when files and folders have been modified), and the “Find” function (locating particular key words in electronic files). 3) Be persistent. To get to the level where the really good stuff is found, a lawyer needs to be willing to move to compel — and knowledgeable enough about electronic records and how they fit into the case to convince a judge from the pencil-and-paper era to grant that motion.

Joe Kashi – 1) Have a good working knowledge of the application programs that your
discovery target uses. 2) Conduct preliminary discovery regarding computer systems, networks, operating systems, backup procedures, and application programs. 3) Use a neutral expert to do any on-site discovery – that will reduce protective order and other discovery problems and also costly mistakes or oversights. 4) Try to agree with opposing counsel about the methods and details
regarding how electronic discovery will be performed.

Denise Howell – Know how to hire experts. Give strong consideration to ASP approaches to avoid being stuck with technologies that grow obsolete.

Sharon Nelson / John Simek – 1) Know what you don't know. Consult an e-discovery and/or a computer forensic expert before you begin. 2) Don't stomp on the evidence yourself and don't let the client or their IT department do it. Very few attorneys or IT personnel are aware of the potential spoliation of the electronic evidence. You may "shoot yourself in the foot" if you go after the evidence before it is preserved. 3) As a preventive measure, make sure your clients have (and adhere to) a good document retention policy!

Craig Ball – Gosh, I can think of so many. Can I do four? First (and chanting this like a mantra is a good idea), compel broad e-retention but seek narrow e-production. This is the approach most likely to be sustained by courts and has the incidental strategic value of being most challenging to your opponent. Narrow requests necessitate careful qualitative review by the producing party. Second, get help. You may have to hire an expert to guide you through the first time or two, or when you are in over your head. Ask the court for help, too. Seek a TRO or protective order, or move for appointment of a special master skilled in electronic discovery. Third, don’t expect to get it all in a single set of discovery. Digital evidence is all over the place, and you may have to go back to the well many times as you learn more about your opponent’s operations. Consider ten sets requesting three items instead of one seeking thirty. Finally, don’t forget what goes around, comes around. Our clients are all increasingly vulnerable to e-discovery, so meet and confer early and often, share expectations, find solutions and don’t promise what you may not be able to deliver. Helping your opponent master e-discovery may seem at odds with the adversarial process, but it will ultimately benefit your client and your reputation.

Kristin Nimsger – Work to define the scope of electronic discovery early in a case. At the beginning of any e-discovery project, you must define the scope of the project. You have to ask yourself questions like what type of information is involved, and what does the litigation team intend to do with the information once it is accessed? Do you want to simply look at the documents or are the relevant documents going to be produced to an opposing party, court of government agency? How will the documents be reviewed for responsiveness and privilege?

Rick Davey – 1). Stay current with the best practices of EDD. 2) Learn techniques that can be used while reviewing and searching documents to find the appropriate documents for your case. This will even more important as the definition of what documents are continues to evolve become more complex.

Jon Sigerman – I believe lawyers must use an iterative process to get their arms around electronic evidence. By that I mean, the lawyer needs to find out in a general way (before the costly data acquisition processes begin) where bits and bytes that may be pertinent are potentially stored before the expensive information siphoning or broad-based data acquisition efforts commence. One means I have employed is to first ask questions, next acquire some samples of information in the least expensive and invasive fashion, and last review it for key words, names, phrases, and passages.

For example, if Executive Jones is a key figure regarding events occurring in March, 2001, obtain a Microsoft Outlook .pst file from the exchange server (or a Lotus Notes .nsf file from the Lotus Notes system) containing Jones’ in and out boxes for the March 2001 time period. Use basic parsing to have the processed samples loaded into a convenient search system (for Summation we refer to that as Class II parsing - see our Service Bureau eDiscovery white papers at the www.summation.com > support > white papers). The attorney should learn to conduct hands on searches of the e-mails and attachments to get a sense of what is there. Often, only the attorney can spot words, phrases, or concepts germane to the matter. If key words, phrases or even passages are spotted, the service bureau can be instructed to do a broader sweep through the corporate media using the key names\words\passages from the attorney’s initial analysis as query terms for more sophisticated search engines that can more precisely sift through large volumes of enterprise data stores. The attorney then does a second iteration of searching, reviewing, and winnowing the second wave of content provided by the service bureau. And again, subject to time constraints, the process can be further repeated to zero in on pertinent information, and more efficiently cast aside the non-pertinent.

The biggest and most costly mistake, in my mind, is when a forensic/service bureau team is sent out to siphon off information in a one broad sweep, and then processes gigabytes or even terabytes of information by converting it all to images and extracted text before any threshold winnowing is even commenced. That is the make it like paper paradigm is employed lock, stock, and barrel. Costs go off the chart, review time goes off the chart, and much information (e.g. important meta data) can be lost in the process.

Lee Neubecker – Make sure you capture a reliable forensic image of the media to be examined. Authenticate the media by generating a hash value for the media, comparing the forensic copy against the source. Recover erased files and deleted partitions. Generate hash values for all individual files on the subject media to eliminate duplicates and known files. After you have done these preceding steps, you can then use your eDiscovery vendor to filter by keyword and date. If you don't perform the preceding steps, you are severely compromising the quality of your discovery efforts. An outline of the key steps for managing electronic discovery can be found at: http://www.forensicon.com/pdfs/electronic_evidence_best_practices.pdf.

Chris Kruse – First and foremost, make certain you have experienced project management resources in place that can coordinate the efforts of your client, your electronic discovery vendor and any additional third part service providers. Electronic discovery can be a very complex process. Lack of coordination can result in very expensive and time-consuming errors and rework. Second, be certain that your client’s IT people speak directly to the electronic discovery vendor, preferably before any data collection work begins. There are some 250 unique application, e-mail and instant message data formats in use today as well as a dozen or more file backup technologies. Be on the lookout for data from applications that are no longer in common use or for data stored in formats that are no longer widely supported so they can be isolated and handled appropriately. Early technical coordination will help all the involved parties minimize their effort and the potential for errors. Finally, understand the impact of special requests on the process. The most experienced, reputable vendors will have processes in place to ensure a smooth project, no matter how large or small the document collection. Before insisting on changes to “save time”, be certain they are documented and the impact is fully assessed. While saving money for your client is the right instinct, subjecting your project to an unproven process increases the chance of costly and time-consuming errors and delays. So choose a solid, reputable vendor and trust that the knowledge they’ve acquired over many projects, both large and small, has resulted in a solid, reproducible process that will minimize the cost and complexity of electronic discovery.

Art Smith – Three tips? Get help from professionals. Get the right software tools to mine the electronic discovery. Get more help from professionals.

Michael Kraft – Educate yourself and your team on what makes EDD different from what you have done in the past. It is different in more ways than you may think. Don't wait for that big case to try it for the first time and make your mistakes. Develop your procedures and cut your teeth on a smaller, easier to manage case or two if possible. Find your experts, consultants, vendors, product suppliers and negotiate with them before you need them. When the boxes are at your door, your options and your negotiating position are very limited.

Chris Paskach – One tool or application does not fit all. Different phases of electronic discovery require different technologies. Remember the 5 P’s to Electronic Discovery: Preserve, Pare, Process, Produce, and Prepare and be sure your service provide has adequate processes to address each phase. Integration is important. You can significantly reduce the cost of electronic discovery, increase efficiency and reduce overall engagement risk by finding an end-to-end service provider with integrated processes, chain of custody procedures and technologies.

Derek Schueren – Always remember your end goal, and evaluate any investments of time or money in the context of those goals. E-discovery can be both helpful and distracting. It is important to keep yourself focused on figuring out how to best help your client. Technology can help you serve your client, but you have to be its driver.

Great stuff! I hate to see the conversation end. Thank you everyone. Give yourselves a round of applause. I haven’t ever had the chance to see electronic discovery considered from so many different points of view. It’s fascinating how many different aspects of electronic discovery must be considered and handled. I have a ton of notes, but there were a few points that I wanted to highlight.

• Despite what many lawyers might expect, there was a big emphasis on not simply requesting everything and crunching through it, but instead focusing your discovery, limiting the sheer number of documents you need to work with and being smart in your approach. Notice how many members of our panel emphasized points about saving costs, streamlining cases, achieving efficiencies, and working smarter.
• There is definitely a team aspect to electronic discovery. I’m not sure that I’ve ever seen an area of law where lawyers are so willing to acknowledge and accept a necessary role for third party consultants, vendors and tools. It’s also an area where collaboration and an understanding of other disciplines are required for success.
• No one expects electronic discovery issues to become easier and simpler. Electronic documents break down paper-based rules and traditional approaches in many ways.
• I was surprised at how thoroughly our group of experts knocked down the big case / small case approach that many lawyers have used to justify the avoidance of serious electronic discovery efforts.
• Finally, and this was no surprise to me, I enjoyed the willingness of our experts to share their observations, their insights, their stories and their struggles to learn to practice in some very new ways. Electronic discovery is a big, complicated work in progress that many people need to work on in many ways. Art Smith said that “there can be a gold mine out there in electronic data.” There is no question that there is a gold mine in the comments made in this article.
  

You’ve got the big picture and you have some practical tips and action steps. Go forth and e-discover.

Biographies

Craig Ball is a trial lawyer, e-discovery consultant and certified computer forensic examiner in Montgomery, Texas. He can be contacted as craig@ball.net or via www.cybersleuthing.com.

Rick Davey is Managing Director at EDDix, LLC, a company that provides independent research, analysis and reporting on the Electronic Data Discovery marketplace. He is perhaps best known for leading-edge development of retail database marketing systems at Citicorp, Inter-Act Systems and netValue. He also has headed up information services at Sullivan & Cromwell.

David Goldstone is an attorney in Skadden, Arps’s Washington, D.C. office and practices in its Intellectual Property and Technology Group. He represents corporate clients in technology, computer and intellectual property litigation and enforcement matters, and counsels on other computer and information security issues. Mr. Goldstone joined Skadden, Arps after five years in the Justice Department’s Computer Crime and Intellectual Property Section, where he prosecuted cases nationwide relating to computer hacking, software piracy, trademark counterfeiting, theft of trade secrets, Internet fraud and harassing e-mail.

Denise Howell is an attorney in Reed Smith’s Los Angeles office and widely regarded as one of the premier legal bloggers. Her practice focuses on appellate and intellectual property litigation. She has handled matters for a wide variety of industries and individuals, including Internet technology and bioscience companies, real estate developers, professional sports teams, manufacturers, distributors, professional service providers, financial institutions and non-profit organizations.

Joe Kashi is an attorney and litigator living in Soldotna, Alaska, who is active in the Law Practice Management Section and a technology editor for Law Practice Today. He has written regularly on legal technology for the Law Practice Management Section, Law Office Computing magazine and other publications since 1990. He received his B.S. and M.S. degrees from MIT in 1973 and his J.D. from Georgetown University in 1976, and is admitted to practice in Alaska, Pennsylvania, the Ninth Circuit, and the U.S. Supreme Court.

Dennis Kennedy (dmk@denniskennedy.com) is a computer lawyer and legal technology consultant based in St. Louis, Missouri. His highly regarded web site at www.denniskennedy.com collects many of his articles and is the home of his blog. Dennis is on the boards of both Law Practice Today and the ABA TECHSHOW 2005.

Michael Kraft is General Counsel and co-founder of Kraft, Kennedy and Lesser, one of the premier legal technology consulting firms in the United States. He is a former practicing litigation attorney who spent ten years in various management positions in marketing, sales, and product development in the financial printing industry.

Chris Kruse is President & CEO of CaseCentral, Inc. (www.casecentral.com). Based in San Francisco, CaseCentral provides electronic discovery and document hosting services to law firms and corporations nationwide. Since founding CaseCentral in 1994, he has driven its development into a leader in electronic discovery and litigation management solutions, compiling a client list that includes 81 of the 100 largest US law firms.

Alex Lubarsky is, in addition to being the voice of the Alextronic Discovery blog, a practicing litigator and legal technology enthusiast. He was elected to the California State Bar Law Technology Executive Committee in 2003. Alex is a certified trainer and regularly teaches litigation support. A frequent guest speaker at numerous legal technology conferences and State Bar events across the U.S., Alex has authored articles for legal technology publications such as Law Office Computing and The Bottom Line.

Sharon Nelson and John Simek are the President and Vice-President of Sensei Enterprises, a computer forensics and electronic discovery consulting firm in Fairfax, Virginia. They speak and write on these topics frequently and Sharon is a member of the ABA TECHSHOW 2005 Board.

Lee Neubecker is the President and CEO of Forensicon, Inc., a Chicago-based company which provides consulting services in the areas of computer forensics, electronic discovery and litigation support to a diverse range of clients. Mr. Neubecker’s expertise in computer forensics stems from more than ten years of experience in the computer technology field plus a wide range of experience in the information technology sector.

Kristin M. Nimsger, Esq., is the Senior Director, Legal Technologies Product Line, at Kroll Ontrack Inc. As the senior director of the Legal Technologies Product Line, she is responsible for the evolution of the products and service offerings of the e-evidence business group within Kroll Ontrack. Ms. Nimsger is a widely recognized expert on the subject of electronic evidence and is frequently called upon by journalists to comment on breaking news. She has spoken extensively with the media on electronic evidence topics, including appearances on Court TV, Fox News and national radio broadcasts and interviews in The New York Times and Chicago Tribune. From e-document preservation perils to e-discovery litigation tactics, Ms. Nimsger is among the nation’s most knowledgeable legal technology experts. She is the co-author of “Electronic Evidence and Discovery: What Every Lawyer Should Know,” a recently published book by the American Bar Association. Ms. Nimsger received her J.D. from William Mitchell College of Law in St. Paul, Minn., and her B.A. from the University of Minnesota, Duluth. She is admitted to the Bar in Minnesota.

Chris Paskach is a partner in the Forensic practice of KPMG LLP, the audit, tax and advisory firm. Paskach oversees the firm’s Cypress Technology Center (CTEC), which provides discovery management services including digital evidence recovery, electronic data discovery, document imaging and objective coding, and secure repository hosting. He can be reached at cpaskach@kpmg.com.

Mark Sableman is a member of the Intellectual Property and Information Technology Department of Thompson Coburn LLP and concentrates his practice in the areas of communications and intellectual property and information technology in traditional and new media. He litigates libel, privacy, trademark and copyright infringement, unfair competition, trade secret, and related cases. He writes, speaks and teaches on a variety of IP, media and communications topics and is the author of More Speech, Not Less: Communications Law in the Information Age.

Derek Schueren is Director of Legal Solutions at Recommind, a leading information retrieval and management company, where he oversees sales activities into several vertical market segments. Mr. Schueren was previously at S & T World Products where he held several senior positions in sales and operations.

Jon Sigerman is the President of Summation Legal Technologies, the maker of Summation, a highly regarded and widely used integrated litigation management software program. Sigerman also has more than 25 years of experience in trying complex cases.

Art Smith is a member of the business litigation department of Husch & Eppenberger, LLC, a 320 lawyer firm based in St. Louis. He serves as co-chair of an electronic discovery subcommittee in the ABA's Litigation Section and has spoken frequently on electronic discovery issues. He served as chair of the Technology in the Practice of Law Committee of the Bar Association of Metropolitan St. Louis for nearly ten years and is also active in the ABA Business Law Section's Cyberspace Committee; he is a co-author of a forthcoming Deskbook on Electronic Discovery being published by the ABA Business Law Section.

Skip Walter is the Chief Technology Officer of Attenex, Inc. Skip has over 35 years of technology product development experience along with executive management experience in Fortune 500 companies and start-up businesses. Skip was the creator of Digital Equipment Corporation’s ALL-IN-1, a $1 billion revenue per year office automation system. He was the VP of Engineering and New Venture Executive for Aldus Corporation (now part of Adobe, Inc.). Skip was the founding CEO of Attenex. Prior to joining Attenex, Skip provided the product vision and engineering leadership that was key in Primus Knowledge Solutions, Inc.’s IPO in July 2000. In addition to executive management, Skip has consulted with companies such as Intel and Xerox, provided due diligence for venture capital funds, and taught graduate students about knowledge management and interactive product development.

Mark Yacano (myacano@wrightrobinson.com) is a principal in the Richmond office of Wright, Robinson, Osthimer & Tatum. Mark’s trial practice focuses on the defense of product manufacturers, manufacturing of industrial equipment, and pharmaceutical companies in both stand-alone and complex multi-action litigation. In addition to a traditional trial practice, Mark manages the firm’s innovative Support and Information Management and Litigation Management practices.

Virtual Roundtable Discussion Continued:
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