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March 23, 2012

Notes on Arkfeld's Online EDD Course

Discovery_notesI recently enrolled in Michael Arkfeld's Online E-Discovery and Digital Evidence Course to bone up on electronic data discovery. (He is a long-time member of LTN's Editorial Advisory Board).

Here are a few takeaways from the last online session:

• "They didn't create electronically stored information for litigation."

• An attorney told his adversary that the ESI requested was not reasonably accessible because it numbered into well over 400,000 documents. A thing of the past, right? The adversary backed off.

• Active data that becomes inactive during the course of a long case can change from accessible to inaccessible. Be careful here -- it could result in sanctions.

• Is there a still a divide between legal and IT? Arkfeld mentioned a partner at a law firm who was trying to get his IT director fired for attempting to comply with a legal hold.

• If you're at a firm involved in litigation and the case is settled, what do you do with the ESI you've collected and preserved? A student mentioned that after a case at her firm, "We usually ask for [the ESI] back from the law firm and get a certificate of destruction."

• When a student mentioned that you can "code behind" a spreadsheet as a reason against paper production, the student disagreed when Arkfeld referred to the "code" as "metadata." After conceding that, given the student's IT background, his technically precise definition ("code") was probably correct, Arkfeld pointed to the importance that both sides during discovery ensure that their definitions match. Technologically precise might not matter to a judge.

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Thanks for posting the comments. I really enjoy the opportunity to discuss these issues with the online class attendees. This class is especially engaging which I enjoy. See you next Wednesday online.


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