Managing Early Case Assessment

Managing Early Case Assessment

Early case assessment (ECA) is an excellent tool to decide the merits of a civil case. However, in a world of fast-growing electronic data and shrinking review times, ECA has become one cumbersome process.

Attorneys traditionally begin the ECA phase by interviewing data custodians and requesting all related materials. The custodians usually do their best but thinking back 3 or more years - not to mention their natural inclination to protect themselves - leaves the interviewing process much to be desired. Attorneys leave the custodians with instructions to stop deleting any potentially relevant data and to forward every potentially relevant email on their hard drive to the attorney. As you can well imagine, this process is so muddled as to be a mere formality in some settings.

The real search happens when attorneys ask IT to search network email stores and backup tapes for relevant ESI. These too start trickling in as IT has time to do it. The end result of this entire process is that hundreds to thousands of duplicate messages enter the data set, email may or may not be relevant, and timeframes stretch out as users and IT rarely feel the same sense of urgency as the review team does.

On top of this awkward and inadequate process, the attorneys will be looking at the data set for the first time. They will frequently encounter two main challenges at this stage: a large initial data set and frequent search term revisions.Unwieldy data set. Fast-growing corporate data stores are the culprit. Data sets are far too broad and duplication is all too common for efficient and timely review. Review will require large numbers of reviewers in order to complete review before meet-and-confer. Usually these are contract attorneys, who add significantly to the cost of ECA. And manually coordinating large review teams and numerous search terms is exceptionally difficult.

Revising search terms. Since attorneys are looking at the data for the first time, they will undoubtedly locate new patterns, threads and users within the initial data set. Attorneys must change their search parameters accordingly and must return to the custodians for additional data. And once again the discoverable universe swells to an unmanageable size.

This state of affairs is a sad waste of attorney, IT and end-user time and resources, and is fraught with inaccurate results. Corporations are being slammed by huge manpower costs to manually search for and analyze data sets at all, leave alone in time for a true early case assessment. This leaves attorneys to face the meet-and-confer without a workable strategy from early ESI analysis. This puts them and their client at high risk of poor preparation and heavy plaintiff pressure.

Given this level of cost and complexity, firms increasingly require technology tools focused on the ECA process. The twin goals for ECA technology are to reduce the initial collection to a manageable (and defensible) size and to gain accurate and visual views using sophisticated analysis. Only eDiscovery technology tools can provide the level of ECA that new court realities require.