The Keys to Early Case Assessment: Using Process & Technology to Unlock Your Case’s Potential

Early Case Assessment (ECA) is one of the most misunderstood terms in the e-discovery lexicon. It variously means anything from a detailed, multi-step data review process to a specific type of software that culls and creates review platform load files.

To compound the confusion further, many legal practitioners will tell you that ECA is much more than an e-discovery term, and instead encompasses an analysis of the entirety of a case’s merits versus cost effectiveness.

At a top level and historically, ECA is certainly a pure risk/benefit analysis—it disciplines stakeholders to come together and weigh whether to go forward with a particular case or settle.

But just as language changes and evolves over time, the term “ECA” has expanded to include new meanings such as those that specifically encompass the e-discovery process.

The History of ECA

Attorneys were conducting ECA long before computers, electronically stored information (ESI), and the Federal Rules of Civil Procedure changed the way lawsuits are assessed and managed. Back then, an early case assessment involved exploring the merits of the case based on preliminary evidence and talking to witnesses.

Legal counsel evaluated judges, the jurisdiction, the other side’s lawyers, the potential members of the jury, and the burden of proof. They also took into account the expenses of traditional discovery, as well as whether it made strategic sense for the litigants to settle fast and make the case go away, or to fight it out in court.

At the end of the day, the goal of assessing the case as soon as possible was to make a business decision about whether to take the case to trial.

Then, the nature of the business changed. Computers, e-mail, and voicemail became indispensible business tools. Colleagues started IM’ing each other at the office, companies began putting profiles on Facebook, and everyone wanted an iPhone.

When traditional discovery changed to e-discovery, ECA began to take on a different meaning. Since collecting, culling, reviewing, and producing ESI plays such a logistical and financial role in the current litigation environment, any form of ECA now has to take into account e-discovery.

Today, it’s impossible to perform thorough Early Case Assessment without factoring in how many potential custodians are involved, how many gigabytes or even terabytes of data could be responsive, how much of it exists on legacy software, and whether it resides in centralized servers down the hall or on old backup tapes in a closet in a satellite office. But in order to answer these questions early on, litigants need to have processes in place to determine the scope of e-discovery.

Evaluating E-Discovery Burdens Early On

With the right processes in place, litigants can use ECA to evaluate whether to continue a case through discovery and to trial or settle right away. Conducting ECA with an eye towards the burden of e-discovery can also help attorneys shape the outcome of the Meet and Confer, which is required under the Federal Rules of Civil Procedure.

Assistance With Meet and Confer

Under FRCP Rule 26(f), litigants must confer early on in the litigation—as soon as practicable, or at least 21 days before a scheduling conference. According to the FRCP, the parties must discuss, among other things:

[A]ny issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.

By being well-prepared for the Meet and Confer, litigants can gain a tremendous tactical advantage. On the other hand, when one side goes in unaware of how much data they have, what forms it exists in, and how long it could take to get, that legal team may agree to terms that can prove to be disastrous—or at the least, very, very expensive. The only way to really be prepared for the Meet and Confer is to conduct ECA as soon as possible.

Other Phases

Performing Early Case Assessment under these time constraints requires planning and processes. With those in place, litigants can develop a thorough, defensible and repeatable set of steps that will help them evaluate and manage the earliest waves of data through the litigation hold, preservation, and collection processes.

A good ECA will have effects far beyond the Meet and Confer, of course. It will save enormous amounts of time, effort, money, and stress across the entirety of the case. By creating plans for litigation holds, preservation, culling, collection, review, and production, litigants can better ensure that they will find the right information from the right people. They will also be able to accurately assess the size and content of the data they collect.

The more thorough the processes, the more data can be culled early on. This will allow for better time planning and budgeting. It will also allow the legal team to determine relationships between custodians quickly.

Software for ECA

Developing the right processes is just the beginning. In order to have a thorough and effective ECA, the right tools and software are also critical.

Broadly speaking, ECA software can include litigation hold software and processing and collection tools. However, when most people think about ECA software, they usually think of the culling and filtering aspects. This type of software allows users to take a large, disorganized data set and winnow it down to a more manageable amount. Typically, it can also function as a “first-pass” review, which categorizes, refines, and sorts data.

Pre-Defined Filters

The pre-defined filtering capabilities interface represents the most well-known ECA software functions. These capabilities allow users to apply broad filters such as file type exclusion or a date range to the data set.

Pre-defined filters generally include encrypted files, decrypted files, duplicate files, graphics, and custodians. They are also used for e-mail fields such as who sent the message, who received it, what the subject was, and other information.

The filters, which are often available within the document review program, can be most effectively used for culling irrelevant files or to get a better understanding of the overall dataset, such as size, number of sources, and data profile.

Connecting the Dots

ECA software can also provide a huge advantage in litigation by displaying connections between documents, custodians, and communication strings. With the ability to see a threaded or conversation view of an e-mail string, users can get a snapshot that allows for a better understanding of the chain of communications between potential custodians. They can also see what subjects were discussed. This glimpse into relationships between custodians and document connections also provides insights into the case and helps users spot key pieces of information.

Solid analysis and reporting functions can also offer useful information about which documents did, or did not, meet the search criteria. Reporting can also help to quickly determine if chronological or conceptual gaps exist in the current data set.

Search Challenges

Keyword searching is an ongoing challenge for litigants, who often wonder whether they are casting too wide a net or are missing crucial terms. They also often worry about the defensibility of their terminologies. Early Case Assessment software can help ease these concerns.

The right tools can identify what words and concepts will be important in the case. Software also allows users to estimate how many documents will be generated using different combinations of keywords.

An ECA application that can efficiently and effectively reduce the amount of data down to a manageable amount should include: stemming, phonic, synonym, related, fuzzy, multi-word, and Boolean searches. Programs should also offer data and evidence bookmarking to support categorization and organization.

With the reports and metrics generated from ECA software, the legal team can better determine whether they need to perform additional collections.

Finding the Right Processes & Software

It is extremely difficult to develop an ECA process in the midst of ongoing litigation. There’s enough pressure meeting the day-to-day demands of a lawsuit, and those involved already feel under the gun.

It’s best to plan ahead and outline how the process should work before litigation commences. Remember, though, that this is a framework, not something that is set in stone. The processes need to be flexible enough to be used in a variety of different types of litigation and with different case players.

When developing processes, take into account potential custodians, the hardware and software they use, and the chain of command. Consider the timelines, available resources, and the budget. It’s also important to take into account the shareholders’ long-term strategies, vision, and stomach for risk.

The Devil’s in the Details

Then, it’s time to drill down. Figure out which people or which groups will handle what tasks and in what order. Honestly evaluate who has the right expertise to manage those tasks. It may be that the client has the resources in-house, or it could be that the law firm or an e-discovery provider has the best expertise.

Once the right people have been identified, be sure to provide them with training on the ECA processes and tools. That way, everyone will know what is expected of them before and during discovery.

Communication between the different parties is also critical, so explicitly build periodic meetings and phone calls into the timelines. This will allow the different team members to share concerns and raise issues before they escalate.

Aim for Seamlessness

The processes and tools need to work hand-in-glove. When looking for the right tools and software, ask a lot of questions. Be sure the software will mesh with the programs you are currently using. Talk to colleagues to find out their recommendations. Look for providers that have experience, knowledge, and depth in the e-discovery field.

Learn about the training and support they offer—you don’t want to have an issue at midnight on Saturday, only to learn that the only person who can answer that question won’t be back in the office until Monday morning.

And once your litigation is concluded, take a few minutes to evaluate how the processes, tools, and software performed. Make adjustments and refinements based on those experiences, so the team’s expertise can be carried forward to the next matter.

Ultimate Benefits

Sound ECA processes and software will save time and money by significantly reducing the amount of non-responsive data throughout the e-discovery cycle. Through proactive collection, processing, and culling techniques, you can get a quick look at the amount of potentially responsive data that exists, then weed out a significant amount of the data that is not responsive. This will give you a better grasp of the data you have, and ultimately, help stakeholders weigh the value of the case and how to proceed with it.

While many can argue over the “true” definition of ECA, the value of a well-managed one is indisputable.