For corporate counsel looking for ways to reduce eDiscovery-related risks and costs, an early case assessment (ECA) may be just what the doctor ordered. Understanding the underlying evidence and merits of a matter is crucial given the compressed timelines and other requirements of the new federal rules. An early case assessment assists corporate and outside counsel by providing them with clearer identification and analysis of electronically stored information (ESI) either before or at the onset of litigation or other requests and investigations.

If expensive “brute force” reviews of large volumes of electronic documents can be called eDiscovery 1.0, then ECA are very much part of a more refined eDiscovery 2.0 approach. The benefits include learning key information earlier in the matter, improved identification of relevant documents and e-mails (and their custodians), and reducing costs by sampling data prior to an extensive document review.

Part of an effective ECA is the internal process and procedure validation. Early on, counsel need to get a handle on the data universe, ensure defensible preservation is achieved, and document the steps taken. In addition, data analytics are a key part of an effective ECA. This can involve collecting data samples from a larger data set, and performing a range of analyses depending on the need, such as:

- Basic Data Metrics: Reports the total ESI volume, range of file types involved and the volume in each category–all of which aids in the overall project planning and cost estimation, as well as identifying any special requirements for preserving and processing more complex or voluminous data.

- Advanced Analytics: In addition to developing keyword searches, concept searches developed from electronic exemplars can be overlaid to produce a more accurate view of the data. Advanced analysis can also provide more accurate totals of the data both before and after de-duplication, which can dramatically lower the costs of review (often the largest cost component of discovery).

- Social Networking Analysis: In e-mail and instant messaging (IM) systems, counsel can learn who's been talking to whom about what, and when. This speeds custodian identification, aids the litigation hold process and helps counsel prioritize their custodian interviews and follow-ups. In addition, a social networking analysis may highlight additional custodians, data and issues on which to focus.

Why perform a concept search when one can do keyword searches instead? A common limitation of keyword searches is that they tend to be both underinclusive and overinclusive. Using keyword searches presupposes you already know the terms and variations used by content creators. A keyword search is underinclusive when relevant e-mail discussions and documents actually contain broader and more diverse content than the keywords contemplated.

A search is likewise overinclusive as there are usually nonrelevant e-mails, documents and other ESI captured in the keyword search net. While more effective keyword searches can be developed as an iterative process, depending on the subject matter it may be difficult, if not impossible, to come up with every possible variation and combination of topical phrases under a compressed timeline, before more extensive investigation has been completed.

In other words, keyword searches miss some relevant ESI while producing non-relevant content. The question quickly becomes whether you've reasonably complied with a request and/or performed your internal due diligence. Combining keyword and exemplar concept searching helps to cast a right-sized net on the data and establishes the reasonableness of the methodology.

The judiciary is also becoming much more informed, and indeed, critical of these issues, as Judge Grimm's decision illustrates in Victor Stanley Inc. v. Creative Pipe Inc., 2008 WL 2221841 (D. Md. May 29, 2008). In his decision, Judge Grimm stated, “…while it is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review.”

In addition, the defendants in that matter did not assert that any sampling was done, did not successfully obtain a clawback agreement and subsequently lost their privilege on a number of inadvertently produced documents. Judge Grimm discussed the problem further:

“Common sense suggests that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive, resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive.”

Thus both sampling and concept search results augment keyword searches to provide a more comprehensive and targeted view of the data and, ultimately, improves both confidence and defensibility.

When using an experienced consultant or service provider to perform the ECA, it's key to meet and agree upon the initial measurements, choice of likely keywords, and the selection of appropriate exemplars as the basis for any concept searches.

Using an agreed-upon threshold score, for example, the ranked results can be used to break the information into several categories: High-scoring documents, which are likely to be relevant, and low-scoring documents, which are less likely to be relevant. Scoring enables prioritization of the most relevant content. Senior level attorneys may be interested in reviewing this smaller set of high-relevance documents first, as it enables them to perform their merit review at the same time. In addition, reviewing the most relevant documents first helps a supervising attorney develop a more effective and efficient review strategy.

Conversely, low-scoring documents may be reviewed by less senior attorneys. The volume of less relevant documents may be much higher, and it's more cost-effective to have their review performed at lower hourly rates.

In addition, an effective early case assessment arms counsel with the following to walk into a Rule 26 “meet and confer” with confidence. Having such information in hand not only demonstrates that you and your client have your ESI house in order, but that you've been diligent and reasonable in your approach:

- Meet and Confer Binder

- Data Summary and Analysis

- Search Term Lists

- Network/Data Maps

- Backup Schedule/Retention Analysis

- Preservation/Legal Hold Preparation

- Cost Analysis

- Inaccessibility/Burden Arguments

Bottom line, an early case assessment gives counsel an early leg up on the matter, and enables you to better focus and align resources. When properly utilized, an ECA can also help counsel weigh the decision between settlement and continued litigation. It's an invaluable process in developing your overall case strategy. Also, it alerts you to areas and data requiring further attention–all of which helps to manage the overall risks and costs in a reasonable and defensible manner.

Beard is a former legal services IT manager with Caterpillar Inc., a Fortune 50 corporation, and is a Six Sigma Green Belt. He has extensive experience with matter management, electronic invoicing, and document and enterprise content management. He served on the ABA TECHSHOW Executive Board and is a frequent national author and presenter. His popular blog, LawTech Guru (www.lawtechguru.com), regularly covers new developments in e-discovery.

Beard thanks Adam Rubinger of EED Daticon for his invaluable assistance in preparation of this article.

For corporate counsel looking for ways to reduce eDiscovery-related risks and costs, an early case assessment (ECA) may be just what the doctor ordered. Understanding the underlying evidence and merits of a matter is crucial given the compressed timelines and other requirements of the new federal rules. An early case assessment assists corporate and outside counsel by providing them with clearer identification and analysis of electronically stored information (ESI) either before or at the onset of litigation or other requests and investigations.

If expensive “brute force” reviews of large volumes of electronic documents can be called eDiscovery 1.0, then ECA are very much part of a more refined eDiscovery 2.0 approach. The benefits include learning key information earlier in the matter, improved identification of relevant documents and e-mails (and their custodians), and reducing costs by sampling data prior to an extensive document review.

Part of an effective ECA is the internal process and procedure validation. Early on, counsel need to get a handle on the data universe, ensure defensible preservation is achieved, and document the steps taken. In addition, data analytics are a key part of an effective ECA. This can involve collecting data samples from a larger data set, and performing a range of analyses depending on the need, such as:

- Basic Data Metrics: Reports the total ESI volume, range of file types involved and the volume in each category–all of which aids in the overall project planning and cost estimation, as well as identifying any special requirements for preserving and processing more complex or voluminous data.

- Advanced Analytics: In addition to developing keyword searches, concept searches developed from electronic exemplars can be overlaid to produce a more accurate view of the data. Advanced analysis can also provide more accurate totals of the data both before and after de-duplication, which can dramatically lower the costs of review (often the largest cost component of discovery).

- Social Networking Analysis: In e-mail and instant messaging (IM) systems, counsel can learn who's been talking to whom about what, and when. This speeds custodian identification, aids the litigation hold process and helps counsel prioritize their custodian interviews and follow-ups. In addition, a social networking analysis may highlight additional custodians, data and issues on which to focus.

Why perform a concept search when one can do keyword searches instead? A common limitation of keyword searches is that they tend to be both underinclusive and overinclusive. Using keyword searches presupposes you already know the terms and variations used by content creators. A keyword search is underinclusive when relevant e-mail discussions and documents actually contain broader and more diverse content than the keywords contemplated.

A search is likewise overinclusive as there are usually nonrelevant e-mails, documents and other ESI captured in the keyword search net. While more effective keyword searches can be developed as an iterative process, depending on the subject matter it may be difficult, if not impossible, to come up with every possible variation and combination of topical phrases under a compressed timeline, before more extensive investigation has been completed.

In other words, keyword searches miss some relevant ESI while producing non-relevant content. The question quickly becomes whether you've reasonably complied with a request and/or performed your internal due diligence. Combining keyword and exemplar concept searching helps to cast a right-sized net on the data and establishes the reasonableness of the methodology.

The judiciary is also becoming much more informed, and indeed, critical of these issues, as Judge Grimm's decision illustrates in Victor Stanley Inc. v. Creative Pipe Inc., 2008 WL 2221841 (D. Md. May 29, 2008). In his decision, Judge Grimm stated, “…while it is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review.”

In addition, the defendants in that matter did not assert that any sampling was done, did not successfully obtain a clawback agreement and subsequently lost their privilege on a number of inadvertently produced documents. Judge Grimm discussed the problem further:

“Common sense suggests that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive, resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive.”

Thus both sampling and concept search results augment keyword searches to provide a more comprehensive and targeted view of the data and, ultimately, improves both confidence and defensibility.

When using an experienced consultant or service provider to perform the ECA, it's key to meet and agree upon the initial measurements, choice of likely keywords, and the selection of appropriate exemplars as the basis for any concept searches.

Using an agreed-upon threshold score, for example, the ranked results can be used to break the information into several categories: High-scoring documents, which are likely to be relevant, and low-scoring documents, which are less likely to be relevant. Scoring enables prioritization of the most relevant content. Senior level attorneys may be interested in reviewing this smaller set of high-relevance documents first, as it enables them to perform their merit review at the same time. In addition, reviewing the most relevant documents first helps a supervising attorney develop a more effective and efficient review strategy.

Conversely, low-scoring documents may be reviewed by less senior attorneys. The volume of less relevant documents may be much higher, and it's more cost-effective to have their review performed at lower hourly rates.

In addition, an effective early case assessment arms counsel with the following to walk into a Rule 26 “meet and confer” with confidence. Having such information in hand not only demonstrates that you and your client have your ESI house in order, but that you've been diligent and reasonable in your approach:

- Meet and Confer Binder

- Data Summary and Analysis

- Search Term Lists

- Network/Data Maps

- Backup Schedule/Retention Analysis

- Preservation/Legal Hold Preparation

- Cost Analysis

- Inaccessibility/Burden Arguments

Bottom line, an early case assessment gives counsel an early leg up on the matter, and enables you to better focus and align resources. When properly utilized, an ECA can also help counsel weigh the decision between settlement and continued litigation. It's an invaluable process in developing your overall case strategy. Also, it alerts you to areas and data requiring further attention–all of which helps to manage the overall risks and costs in a reasonable and defensible manner.

Beard is a former legal services IT manager with Caterpillar Inc., a Fortune 50 corporation, and is a Six Sigma Green Belt. He has extensive experience with matter management, electronic invoicing, and document and enterprise content management. He served on the ABA TECHSHOW Executive Board and is a frequent national author and presenter. His popular blog, LawTech Guru (www.lawtechguru.com), regularly covers new developments in e-discovery.

Beard thanks Adam Rubinger of EED Daticon for his invaluable assistance in preparation of this article.