Early Case Assessment
Understanding the Benefits and Limitations
The need for corporate legal teams to quickly understand the nuances of a pending legal matter has created a buzz within e-discovery around early case assessment (ECA). With this desire has come the misleading notion that ECA software is a silver bullet for all of e-discovery—rather than the more accurate view that it can be a tremendously beneficial process at the beginning of any legal matter.
Put it in the proper perspective: ECA software, while useful for the quick culling and analysis of an initial data set related to a complaint, does not crunch terabytes of data and provide an “I’m feeling lucky” button on the merits of the matter.
So, what exactly is an early case assessment? Perhaps the best definition is from the International Institute for Conflict Prevention & Resolution, which published 2009 guidelines with the following: “Early case assessment is a simple conflict management process designed to facilitate informed decision-making at the early stages of a dispute.”
This concept isn’t a new one to e-discovery, but it’s growing increasingly important to in-house counsel as they explore how to reduce the costs of e-discovery. Based on the statements and claims of multiple e-discovery providers, document review can comprise 75%-80% of the total cost of e-discovery, so there is tremendous pressure to dramatically reduce the data set within the matter. However, doing this minus proper insight into the matter—which a good ECA process can provide—can expose the corporation to unnecessary risk if critical documents go undiscovered.
Also critical to the definition is the use of the term “process.” Software is a key supporting player, but there are no magic tools that will crunch the data and then present a red blinking “settle” or “litigate” button on the screen. As with most of e-discovery, software should support existing internal processes, or aid in the development of new ones, which empower legal teams to make the best decisions for their particular matters. ECA, then, should be considered the first step of this process—and not the entire process.
Putting ECA In Place
So, how does ECA work in practice? Consider this common scenario for corporations: your legal team has received a 60-page complaint, listing the names of 10 executives and descriptions of both the details and chronology of the issues. What are your next steps?
First, assemble the team—with representatives from counsel, records retention, IT, e-discovery consultant, etc. A kickoff meeting is helpful for sharing information, discussing scope and accountabilities. To succeed, the team will need to collaborate and update each other often on any findings that could materially affect the overall matter.
Second, determine the scope and timing. Scope includes custodians, types of electronically stored information (ESI), types of ESI storage devices, etc. Note that defining the scope may include the use of search terms; if so, the first list (of perhaps many iterations) of search terms to use in the ECA searches may also be developed.
Next, if the decision is made to go ahead, begin the ECA. Once the legal team has determined the scope, the technical team can begin to preserve the data and prepare copies for culling in accordance with the direction from counsel.
Once the ESI is collected, it’s time to move it to ECA software. If you have ECA software behind your firewall (such as Ringtail QuickCull), the team can quickly convert these disparate data files into a single index so review and analysis can begin via keyword searching, email thread analysis and date-range searching. When combined with deduplication, the legal team can remove the clearly irrelevant noise from the investigation—fantasy football email, out of office replies, etc.—and not only review a more focused set of documents, but save time and money in processing and review downstream. In this “quick review” environment documents can be tagged as “responsive” or “hot” which can aid in developing a deeper understanding of the complaint and also guide review downstream.
And remember, ECA software supports traditional case assessment techniques—it does not replace them. While email and documents are examined, counsel should conduct its own investigation through time-honored interpersonal research techniques, such as interviewing witnesses, identifying external experts and studying case law. As information is gathered, counsel can refine the search terms used on the ECA software and hone in on timeframes or certain custodians. Counsel and the consulting team should measure the error rate or effectiveness of the search strategy, for example, with statistical sampling. The measurement process will help determine whether additional information needs to be pulled from other custodians or supplemental search strategies should be employed. Likewise, results and findings from the ECA software can help inform counsels’ own research.
Combined, the use of ECA software and counsel’s investigation should help the team get to the important facts of the complaint quickly. And, the ECA process can help companies and counsel to estimate the cost benefit of litigation (with its attendant costs) versus the costs of settlement. Understanding this reality will go a long way in helping to set appropriate expectations and conduct successful early case assessments.
FTI Technology offers on-premise and on-demand e-discovery software as well as complementary services and consulting to give customers unprecedented flexibility to address e-discovery challenges at any stage of the process.