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eDiscovery 101

What is Early Case Assessment (ECA)?

Early Case Assessment is needed to help determine the parameters and direction of the case.


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Early case assessment (ECA) is the process of attempting to quickly identify the key intelligence which will ultimately guide case strategy, early on in a legal matter. An effective ECA program encompasses much more than simply examining potentially relevant electronically stored information (ESI), a component of ECA which is generally referred to as early data assessment (EDA). ECA is also a comprehensive evaluation of legal liability and potential costs at the outset of a case. In addition to looking at the relevant data, ECA should include; comparing matters against similar past matters, decisions about what counsel to retain, and looking at previous court rulings to assess the viability of a matter.

It generally includes a variety of tools and methods for investigating and quickly learning about a document collection for the purposes of estimating the risk (cost of time and money) of pursuing a particular legal course of action. EDA tools allow the general counsel and litigation support staffs to efficiently gather, pare down, and review electronically stored information so they can make better-informed decisions concerning litigation risk, to control outsourced processing expenses, to reduce outside review fees and to improve litigation outcomes.

An effective ECA strategy seeks answers to questions such as:

  • Does the case have merit?
  • Who are the key custodians?
  • How much potentially relevant data exists?
  • Is there real liability
  • What are the key issues in the legal matter?
  • What are/were the legal hold requirements?
  • What are the potential issues with the Electronic Stored Information?
  • What are the estimated eDiscovery costs related to the complaint?
  • Are there additional relevant custodians?
  • What keywords and other search criteria should be negotiated?

When you have answers to these questions it's much easier to determine whether to seek an early settlement, proceed to trial, or attempt to adjust e-discovery parameters so they are less costly and burdensome.

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It is important to keep in mind that over 90% of all cases settle prior to trial. Legal discovery and document review costs continue to represent the highest percentage of litigation costs, except for trial costs. Traditional strategy in the United States (although currently it is being frowned on by the judiciary) has been for parties to make the discovery process as difficult and expensive as possible. With this strategy still in use, organizations have a continued need to conduct early case assessment to determine their risks and benefits of taking a case through the entire discovery process to trial without painful settlement discussions.

Early Case Assessment process is a combination of People, Processes and Technology. This triad can provide various degrees of early case review and result in a managed process that provides information needed to make litigation decisions. With an eye towards determining risk, consultants and senior counsel need to use a variety of software analytic tools to assist in and help facilitate the process of early case assessment.

The software approach to early data assessment typically includes the following:

  1. Determining the source files to analyze.
  2. Pointing the analysis tools to the files to be analyzed.
  3. Setting parameters for the assessment.
  4. Allowing the program to automatically scan and assess the data, which may be located on local hard drives, removable media, file servers, whole networks, etc.)
  5. Reviewing reports generated by the software.

Most lawyers can make a basic assessment just by looking at the basic facts of the legal matter, but that is generally not enough detail to make a formal recommendation. Without a full blown ECA process, it’s difficult to attach real figures and data to those projections which is what clients now want at their disposal. The more precise the estimates, the more confidently you can set the right litigation course. So, how do you get there? There are a variety of things that go into an effective ECA process, including:

Custodian Interviews

Even if you have an effective data mapping process in place to identify the location of potentially important, it is also useful to speak directly with custodians to help define data scope. Interviews help you determine who is involved in the legal matter, and where and how much data is involved. Discussing the basics of the complaint will also help trigger custodians to reveal the existence of key documents that might affect the litigation. This preliminary step will help you determine how best to proceed with further detailed analysis.

Data Analytics (EDA)

Data analytics is a major component of ECA. It is the process of turning raw data (think thousands of documents) info useful information. It goes without saying that legal teams don't have the luxury to go through every single document in formulating their case strategy. Instead, the team can use data analytics to generate reports which capture; data volumes, custodian names, date ranges, email domains, key concepts, and other insights into large data sets. Additionally, analytics can serve a quantitative function (how much data is out there?) as well as a qualitative one (is there a smoking gun?). Data Analysis reports can be used by counsel to make informed decisions regarding the best course of action. Data Sampling

The use of data sampling to analyze large data sets is another method that is growing in popularity as lawyers begin to understand the basic concepts involved, since it is fairly straightforward. Mathematical sampling assumes that by examining a representative subset of documents, you are able to draw accurate conclusions about the entire data population. In eDiscovery, that translates to examining a small set of documents for relevancy in order to determine how many relevant documents might exist across the entire data corpus. The process of data sampling is loaded with minutiae when you start getting into sample sizes, confidence rates, and margins of error, and will not be covered by this author. What's important to remember is that when done effectively, data sampling can be a very effective e-discovery tool. And data sampling is a precursor to full blown predictive coding which can be used to more quickly produce relevant documents.

Reporting

Reporting metrics are a critical ECA component, because they help you make sense of everything. Through reports and dashboards which control different data “views”, you can more easily digest key figures, trends, and other actionable information. As an example, a series of aggregated reports might reveal that e-discovery costs and burdens far outweigh the monetary value of the case. This might not be recognized if you are only examining data on a more granular level. Additionally, reports can be exported and shared with experts, the opposition and even the judge when you need evidence to support a position on data that you are taking.

The early case assessment lifecycle will typically include all of the following:

  1. Perform a risk-benefit analysis.
  2. Place and manage a legal hold on potentially responsive documents (paper and ESI) in appropriate locations.
  3. Preserve information.
  4. Gather relevant information for attorney and expert document review.
  5. Process potentially relevant information for purposes of filtering, search term, or data analytics.
  6. Information hosting for attorney and expert document review, commenting, redaction.
  7. Produce documents to parties in the case.
  8. Reuse information in future cases.