In the context of eDiscovery, Early case assessment (ECA) is the practice of estimating the risk and benefits to prosecute or defend a legal case. An ECA can be performed in many different ways, varying largely from one organization to another, but the ultimate goal is to determine the best case strategy (e.g. take a case to trial or settle) as early as possible to avoid incurring any unnecessary costs.
Although there is no one-size-fits-all early case assessment definition, ECA can be thought of as the process of gaining insights about the strength of legal positions, and potentially relevant issues, witnesses, custodians, and evidence as soon as a matter surfaces.
In some instances, early case assessment has been described as “conducting discovery prior to a formal discovery context.” This is because, in most cases, discovery costs are the main determining factor to prosecute a case, so the sooner the potential costs and scope of discovery are figured out, the easier it will be to establish a sound case strategy.
In an eDiscovery context, the most important factors to determine during the case assessment are:
With all this information at hand as early as possible, it’s easier to establish the least burdensome case strategy for an organization. The assessment is usually conducted through a combination of relevant professionals—attorneys, risk managers, consultants, IT professionals, etc.—and specialized ECA software.
This guide will cover the main steps and best practices involved in the early case assessment process to make it as effective as possible, as well as share ways to avoid common pitfalls.
See how Walmart's approach to early case assessment reduces the amount of data requiring outside counsel review by up to 98 percent.
Early data assessment (EDA) is similar to ECA, and the two terms are often used interchangeably due to the central role that discovery plays in ECA. However, ECA is a more holistic approach to case management that takes many different factors into account to make an expedited decision on how to resolve a dispute.
Early data assessment allows parties to know what your case data (usually ESI) looks like before you process it, and gives insights into the scope of the project and its costs.
With an effective EDA strategy, you can obtain the information necessary to create an appropriate litigation strategy and support cooperation and proportionality in discovery, as well as develop a litigation budget and manage your litigation deadlines more effectively.
One of the most important parts of this process is the selection and testing of keywords. Keywords are the words or phrases you will use to search data collections and identify potentially relevant documents, whether they are applied as basic searches or in a more predictive or analytical context.
In its most basic application, early data assessment may mean searching your available data collections to see if potentially relevant documents hit on selected keywords. If no documents are found, you can refine your search until you find more meaningful results. However, if the results continue to be disappointing, it may also indicate that there is no evidence to support the claims in a case, or that rudimentary keyword searches are insufficient to properly assess the available data.
Once accurate keywords have been developed and you have a bearing on the scope of the potentially relevant information, take the time to count your potential custodians and estimate the volume of evidence for each. This is also the best point to evaluate how much time and effort a discovery project will take, as time periods can be different for each custodian and source.
In the U.S., more than 90 percent of all cases settle prior to trial. In federal cases, this number is closer to 98%. Therefore, discovery has become a de facto form of dispute resolution in U.S. courts. That is why the early phases of discovery are arguably the most important of any legal battle or dispute. This is when you identify whether or not your side will likely be able to proceed with an action or if it will be more cost-effective to pursue a settlement or alternative resolution.
These are the main benefits of gathering insights about your case as early as possible: