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:
ECA can be conducted in a myriad of ways. The most important things to determine when starting the process are the evidence that will need to be collected, the custodians who will be interviewed, and the cost, complexity, and challenges your team will face.
This is a step-by-step ECA process that works for most legal teams and matters:
As we just discussed, the traditional linear review is giving way to an analytics-first workflow. That means legal teams are increasingly relying on available technology to understand case data early through analysis and intelligent culling, rather than an old-fashioned eyes-on review, where documents had to be reviewed one at a time—usually just to determine that a case wasn’t worth prosecuting.
But how exactly does ECA technology avoid conducting a linear review?
Broadly, there are 3 ways early case assessment software like Logikcull can help you evaluate the scope of discovery and gain insights about the strength of your case:
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.
An effective ECA can take different shapes depending on the context and the nature of the case. One general rule, however, is that a good ECA strategy always marries an effective process with sophisticated ECA tools.
These are some early case assessment best practices that can always be applied to make the process as effective and efficient as possible:
Before you even start gathering ESI and interviewing custodians, make sure you gather as much context about the case as you can. Consider things like the timeline of events, parties involved, legal issues at hand, roadblocks or arguments that can hurt the case, etc. All of this data will create a solid foundation for the rest of your assessment and help you understand where and how to look for evidence.
There’s no escaping it, your ECA will involve analyzing ESI. Make sure you identify the right person from IT to help you identify custodians and navigate the data environment.
With the help of an IT expert, create a list of all record locations while documenting which custodian/department is in control of that source. That will allow you to prioritize custodians and data sources in your document collection and be more efficient about your data assessment.
As discussed earlier, conducting custodian interviews is crucial in ECA. They can point you to the right documents, to more custodians, and even to some unknown case facts.
This is a process that needs to be set in place long before an ECA starts. The ultimate goal is to have a limited number of irrelevant documents to review whenever litigation arises, so a sound and defensible deletion strategy is crucial. Make sure your strategy is properly documented to avoid spoliation sanctions.
It’s also recommended to ask outside counsel or your vendors for a data certificate of destruction. Some strategies that grant a defensible deletion are data culling, deduplication, or deNISTing.
Just like defensibly deleting data, a preservation strategy is something that needs to be established separately from an ECA process. However, issuing a legal hold that preserves all potentially relevant information as soon as the triggering event happens will minimize risks for your organization and ensure all the data you need to analyze is available at the time of conducting an ECA.
Sampling data will help you determine the possible size of the entire dataset involved in a matter and associated costs to process and review.
To properly assess expected review costs early in your case, it’s important to get rid of any irrelevant data that won’t be a part of the review process.
Analyzing ESI is usually the central part of an ECA, but make sure you also include any potentially relevant physical documents in your assessment.
After gathering a preliminary view of the evidence available during your ECA process, you should have a “meet-and-confer” with opposing counsel to try to limit over-collections and cost overruns.
Actions must be repeated until your team feels it has a complete picture of the total universe of potentially collectible ESI.
Leveraging available ECA tools to streamline the entire process is the best way to optimize your case assessment. Since ECA and eDiscovery are so closely related, the best early case assessment tools are usually eDiscovery platforms with features capable of handling ECAs.
An important factor that is changing how eDiscovery in Early Case Assessment is employed is changes to the Federal Rules of Civil Procedure on proportionality. As mentioned in Chapter 1 of this guide, Federal Rule of Civil Procedure 26(b)(1) was rewritten to limit discovery to that which is “proportional to the needs of the case” and provided five factors for courts to consider.
The old rule 26(b)(2)(C)(iii) was clear that a court could limit discovery when the burden outweighed the benefit. However, new Rule 26(b)(1), implemented by the December 1, 2015 amendments, takes the factors in these old requirements and puts them at the heart of any discussion about the scope of discovery.
In addition, Rule 26(b)(1) eliminates the phrase “reasonably calculated to lead to the discovery of admissible evidence.” This means that requesting parties can no longer assume they can obtain discovery of virtually anything that’s “reasonably calculated” to be helpful in litigation. According to the rules, the factors parties must address as they relate to proportionality include the:
In sum, under the new rules, lawyers have to provide more details and more information in order to make a claim that discovery is proportional to the needs of a case. This means lawyers must dispense with vague, broad claims or objections and rigorously vet proportionality factors in order to control the scope of discovery.
In practical terms, this may entail providing:
Establishing a clear ECA process and policy can provide your organization with a structured way for conducting early evaluation of a dispute. As most internal policies, an ECA policy must be tailor made to the needs of your business and flexible enough to be adjusted when necessary.
Apart from a specific policiy to manage ECA, there are other policies that govern things like the ability to defensibly remove immaterial information from business and IT systems that can have a strong impact on the ECA process.
Most organizations have data management policies that describe actions to be taken to preserve data in the case of a legal event. However, even the best data governance programs fail if no one enforces or tracks the progress. For example, companies often fail to ensure that potentially relevant information is not improperly deleted or re-purposed when employees leave the organization.
Consult records management policies that determine how long different classes of information should be retained before deletion. In some cases, you can meet with Information Governance Committees, risk management, compliance, legal, I.T., and various individuals who oversee data management.