The concept of early case assessment (ECA) has been around for a long time, arguably dating back to the 2006 changes to the FRCP that, for all intents and purposes, created the e-discovery industry. But what is it, and more importantly, how can it help you?

Part of the confusion stems from the fact that different people use the term to refer to different parts of the e-discovery process. Is it simply evaluating a dataset or corpus of documents to determine what the potential e-discovery burden will be for a given matter? Or is it more qualitative, including an assessment of risk for a given matter—and all the strategy implications that assessment may imply?

The answer to both questions is, “Yes, but that's not all it is.”

Early case assessment does both these things. It is designed to provide the legal team with the understanding of the universe of a given matter, including the scope of the electronically stored information (ESI) that might be included in the discovery portion of the litigation, but it also includes the assessment of risk and the determination of a preliminary strategy for how the matter can best be managed. Importantly, ECA accomplishes these goals without preserving the ESI, which can increase both the cost of document review and exposure to risk.

Four Uses for ECA

In the e-discovery industry, we often attempt to boil it down to numbers of documents and dollars associated to collecting, processing, reviewing, and producing those documents for a given matter, but beyond that, effective use of ECA techniques cover nearly all aspects of the E-Discovery Reference Model (EDRM). Four valuable use cases for ECA techniques during e-discovery include:

  • Properly scoping potential custodians and non-custodial data sources;
  • Understanding the “size of the universe” of the potential document pool to be included in the discovery process, both electronic and otherwise;
  • Determining the risk based on the perceived claims or merits of the given case; and
  • Identifying a quantifiable means to describe the overall risk and set strategy for a given matter.

1. Scoping custodians.

Using ECA to scope custodians and non-custodial data sources is an extremely valuable use case. By looking at the data belonging to a custodian, an attorney can:

  • Validate if the custodian's data should be preserved;
  • Understand what information related to the claims and defenses of the case may be in the custodian's possession; and
  • Determine the impact of including the custodian on the duration and cost of document review.

As custodians are identified, along with their custodial data sources, legal teams can apply technology to examine data contained on those data sources to answer these questions. Traditional tools require that all the data be collected, without any type of filtering or pre-culling, and then processed just to provide a preliminary scope of the review burden.

With ECA, more advanced tools analyze the data in place, without collection, giving the legal teams the ability to examine the data in detail, prove that they have the right custodian, and validate their understanding of the claims and defenses of the matter.

2. Defining the size of the document pool.

Once they have identified custodians, a legal team should also have a solid picture of the size of the corpus of documents that would be included in their review. Here again, ECA provides a means to understand the amount of work needed to complete discovery and its cost.

Using the appropriate ECA tool, attorneys can take advantage of multiple types of analytics to reduce the size of the dataset prior to collection, minimizing the amount of data gathered, processed, and transferred to other parties (like document review teams at law firms or alternative service providers).

Analytics have come a long way since the start of e-discovery in 2006. Initially, teams had various index-based search capabilities and some basic reporting. Today, teams can use technology to:

  • Evaluate concept clusters and communication patterns;
  • Thread e-mails with inclusive determination; and
  • Assess relevance with continuous machine learning.

In the right hands, these analytics can not only reduce the dataset of documents significantly, they can help determine the strategy of how the legal team, as we'll discuss in the next use case.

3. Understanding the merits and claims of the case.

Once the team has used analytics to confirm their custodians and get a firm handle on the data those custodians possess, it's time to evaluate the strategy for managing the matter moving forward.

Using ECA, attorneys and their clients can really dig down into the documents to see if they have a factual basis to pursue or defend the matter. In less clear-cut cases, they can use that data to help them understand other case resolution options, such as reaching a settlement agreement.

ECA analytics can provide valuable insight that helps legal teams weigh their options and make a decision that includes other elements like total cost of discovery (a number also gleaned through ECA!), litigation, and potential risk to the corporate brand.

4. Defining strategy.

The legal team can now define their litigation strategy. They understand the risk, because they've seen the documents that would either allow them to prove or defend against the claims of the case. They can compare the financial risk of the case, weighing known discovery and litigation costs against the likelihood and cost of the matter should the decision go against them.

With this information in hand from the ECA, the attorneys can decide how to most effectively manage the case, protect their interests, and vigorously defend their client, if appropriate. Alternatively, the information could lead them to take the path of least resistance and find a reasonable settlement to the matter.

Use Cases Across Business Verticals

While ECA's uses throughout e-discovery provide great value to legal teams, the technology's applications are by no means limited to legal matters. Linda Luperchio, information governance and e-discovery director at The Hanover Insurance Group, explains, “There is not an area where we do not use the technology. We use it anywhere and everywhere. We do claims litigation, e-discovery on bond matters, HR, and internal investigations.”

Its two primary uses—assessing the scope of information that bears on a given topic and analyzing its contents without collecting it—help teams get their arms around large quantities of data (scoping data), as well as refining search terms and even finding the occasional “silver bullet” that unlocks business issues around a specific contract, HR dispute, or internal investigation. By assessing without collecting, ECA minimizes risk. Luperchio continues, “ECA greatly controls the volumes of data we collect, which minimizes storage costs and risk for us. Collecting large volumes of data often results in expanded review and production costs. Collecting irrelevant data is not an advantage to either side.”

Implementing ECA technology does raise other concerns that organizations should think through before moving forward. In e-discovery terms, having ECA capabilities may change what courts see as “reasonable” or “proportional.” Chris Sitter, information security director at Juniper Networks, uses an analogy from e-discovery's past, “At one point in time, the expense of restoring deleted data was considered 'unduly burdensome,' but as the technology has improved, deleted data is now routinely seen as 'discoverable.' The same concept can apply to ECA tools. Having the capability to analyze data before collection can redefine what steps are considered due diligence. Basically, now that it's easy, you're expected to do it.”

Ultimately, though, that reasoning probably shouldn't be enough to dissuade organizations interested in ECA. He continues, “If an opponent has it and you don't, not having it can put you behind,” in terms of understanding the data and forming a case strategy. And that can translate into real costs in time and money. Luperchio agrees, “If they have a tool and you don't, you're at their mercy. It's a huge disadvantage.”

Key Takeaways

When used as a broad term, early case assessment feels vague and even over-used; but as a technology, it offers impressive capabilities, with multiple use cases, in defining risk and determining how to mitigate it as it pertains to litigation. Compartmentalizing ECA as a small part of the e-discovery process limits its benefits, where it truly offers a much broader range of benefits in litigation management.

Using the appropriate tools, legal teams can take a much more detailed and refined look at matters, the associated custodians and document sets, and make comprehensive and defensible decisions about how they want to move forward. Understanding how to take advantage of tools and their underlying analytics can give a legal team a definitive edge in how they manage their litigation risk. And once applications in other lines of business are taken into consideration, the case for ECA technology becomes even more compelling.

 

Joe Mulenex is Director of Solution Engineering at Exterro where, as a member of Sales Department, he heads up a team of solution consultants and subject matter experts that work directly with Exterro's clients to identify needs and the appropriate solutions for their E-Discovery and Information Governance programs.