In Search of Electronic Evidence.

• Author: Montana, John C.
• Position: Book Review

These days, information management (IM) and information technology (IT) professionals are only too familiar with the litigation discovery process, its attendant difficulties and costs, and its electronic counterparts. For most, however, this familiarity is reactive--the organization's lawyers learn of discovery, inform IM and IT personnel what to search for, and supervise the search and production process. IM and IT professionals often are left out of the strategic and tactical loop of which the discovery is a part.

Electronic Discovery and Evidence approaches the matter from the other side--that of the lawyer, either seeking discovery or seeking to defend against it. This publication is concerned solely with the process of obtaining electronic information for litigation. It is intended for plaintiffs' attorneys, defense attorneys, and in-house counsel of large organizations that find themselves facing this issue from either side. As such, it assumes the reader knows a lawyer's motivations and has a lawyer's pre-existing skill set. The book is formatted as a standard subscription loose leaf publication with periodic updates, and subscribers can access a Web site with updated case summaries and other current material.

For the experienced IM or IT professional, the approach is occasionally either elementary or amusing, depending upon the reader's temperament. Arkfeld walks readers through lists and explanations of basic computer storage devices that are likely to be very familiar to most readers of this review; judicial definitions of computer concepts that may strike the experienced reader as elementary are quoted, all for the purpose of bringing Luddite lawyers up to speed on IT concepts. Beyond this, however, things get serious in a hurry.

The author clearly knows his stuff when it comes to electronic evidence and how to get hold of it. The publication discusses at some length the many places--including hidden ones--that electronic information may be found, the use of forensic experts, and the legal strategies and tools for obtaining access to that information. This alone is instructive, because Arkfeld cites many data repositories--for example, cell-phone memories--that are outside the purview of most IM programs. In similar manner, he discusses the tools and tactics available for defending against overbroad or oppressive discovery demands. He also extensively cites the court rules and case decisions that form the legal authority for the...