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Denise Howell Denise Howell
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Dennis M. Kennedy Dennis M. Kennedy
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Tom Mighell Tom Mighell
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Marty Schwimmer Marty Schwimmer
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Ernest Svenson Ernest Svenson
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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
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November 1, 2005

If Electronic Discovery is the Next Big Thing, Why Are So Few Lawyers Doing Electronic Discovery?

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Posted by Dennis M. Kennedy

Evan Schaeffer and Between Lawyers' own Tom Mighell and Dennis Kennedy have written a new column where we take on one of the most interesting questions in the practice of law in 2005: if everyone thinks that electronic discovery is the next big thing in the practice of law and is so important, why are lawyers staying away from electronic discovery in droves?

I was thinking after we had our discussion of metadata in Word documents the other day on Between Lawyers that electronic discovery could actually be fun - checking for metadata and using all the new electronic discovery tools. Most lawyers, it seems, prefer to stay squarely in the world of paper. I've even heard that some judges make it all but impossible for lawyers who want to get electronic files to obtain them.

Is your lawyer asking you to print out documents for a hoard of high-paid associates to review or more comfortable pawing through a banker's box of papers than mousing through computer files? Maybe it's time for clients to become a lot more concerned about what their legal fees buy them in the world of practice-as-usual. In any event, you'll want to read the column to see how Evan, Tom and I grapple with the question. It's a thorough, well-rounded conversation that will make you think.

The three of us write a regular, more or less monthly column called Thinking E-Discovery on the DiscoveryResources.org site.

Comments (3) + TrackBacks (0) | Category: BL News | BL on Tour | Legal Technology | eDiscovery


COMMENTS

1. Patrick DiDomenico on November 2, 2005 10:58 PM writes...

Dennis,
I was sorry to see that you are no longer on the schedule to present at the Law Tech Forum in NYC this week. I was looking forward to your insight on knowledge management in law firms.

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2. Lee Thomason on November 3, 2005 3:18 PM writes...

A not-insignificant reason is the difficulty in getting courts to address the issue. The time that the court has to devote to issues of this breadth and complexity is limited, just as it is when asking a judge to cull through a massive log of assertedly privileged documents.
Another factor is whether BOTH sides have relevant electronic files or if only one litigant has those. If both do, then a narrowing compromise is possible. When one party has no e-files, and the other would have to cull a great cyberspace expanse, then fighting the request may be as cost-efficient as going through all of the e-docs. A corollary to that is that outside vendors of e-discovery services will provide a budget, and many law firms would rather submit that to a client than do it themselves.

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3. Scott Decker on November 5, 2005 11:30 PM writes...

Hello -

As an Electronic Discovery Consultant, I find that the neither the attorneys or the courts are up to speed from a technological stand point. Many of my clients (attorneys ) come to me to late in the process with their client and expect someone to solve issues. Many attorneys think all they need to do is go to the forensics expert only to get help when in fact they need to involve an electronic records expert who is also very familiar with LAN / WAN topologies as well as the various types of backups. Many attorneys do great harm to their own case in the first couple of days with poorly written preservation orders or worse, poorly written statements of work with the forenics lab they use.

Electronic Discovery will take off because the clients the attorneys represent are more techologically savy and attorneys will begin to face increasing malpractice suits from previous clients based on the poor handling of the electronic discovery phase of their case. Most attorneys have a hard time understanding that they need an electronic records expert day one of their case.

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