Everything you wanted to know about eDiscovery, but were afraid to ask
Early case assessment (ECA) is the practice of estimating the risk to prosecute or defend a legal case. Organizations will often spend significant cost, time, and effort on a case only to find they need to settle the case unfavorably after the cost or exposure becomes too burdensome. Much of that cost is directly related to the eDiscovery process.
In a broader sense, 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 legal matter surfaces. In some instances, it has been described as “conducting discovery prior to a formal discovery context.”
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.
The initial phase of discovery is the time when you will have to determine the evidence that will need to be collected, the custodians who will be interviewed, and the cost, complexity and challenges your team will face. Early case assessment provides a foundation for creating overall case strategies. Considerations include identifying the trigger event of litigation, the facts of the case, value of the damages, the capability of your opponent, your judge’s sophistication in e-discovery and history of imposition of sanctions, date ranges, keywords, case merit, risk analysis and many other considerations.
We will address the basics of early case assessment in this chapter, but first, let’s discuss two important recent trends which are changing the practice of ECA.
Traditional linear review is giving way to an analytics-first workflow. That means legal teams can increasingly rely on software to understand case data early through analysis and intelligent culling, rather than old-fashioned manual review, where documents had to be reviewed one at a time.
For example, the use of visual analytic technology is helping lawyers find relevant information by illustrating relationships and communications patterns. Clustering technology helps group data into categories so that legal teams can identify where relevant information might be found.
In Logikcull, culling filters that are akin to those used by Amazon.com are use to whittle down large amounts of data, so, for example, users can hone in on just emails to and from certain domains, or just files above a certain size. This is similar to how online shoppers search for products by identifying a size, a make, a brand and so forth, so they are not looking at thousands of available options one at a time, but a targeted subset instead. In terms of visual analytics, Logikcull automatically provides “infographics” that create a high-level timeline showing when important communications have been created and sent.
In addition, analytic tools can identify how custodians are talking about their work, which words are important, and what unexpected terms might be useful search topics. This information can help create a simple word list from a collection of emails and documents that can be used to find smoking gun documents and evidence later.
Early data assessment is similar to ECA, and the two terms are often used interchangeably. Early data assessment allows you to know what your data looks like before you process it, and gives insights into the scope of the project and its costs.
Often, the most important part 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, refine your search until better results are found. 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.