Are you getting enough out of your early case assessment (ECA)?
ECA is intended to be a flexible, customized process whereby your organization can rapidly gather and analyze data about a pending or potential matter so you can make an informed decision about what to do. ECA can be slapdash and crude or quite sophisticated—but the better it is, the better the decisions your organization can make and the better the outcomes you’ll see. In essence, ECA functions as a traffic-control light, recommending that you go ahead with litigation, proceed with caution, or stop dead, settling or resolving a matter as quickly as possible.
It pays to get ECA right. If you don’t seem to be getting much value out of your ECA methods, familiar eDiscovery technology and tools may be able to help.
Level 1: Low-Tech ECA
The central questions you should answer with ECA are what a case is going to cost to litigate and what you stand to gain—or lose—by going forward with it. The easiest way to start to find both of those answers is to talk with your potential data custodians.
These interviews, and the answers to your data questionnaires, can point you toward the first wave of relevant data or electronically stored information (ESI) that you have. Focus first on identifying data that relates directly to the legal and factual issues in the case. What keywords or metadata are likely to be most helpful? What keywords won’t actually help you distinguish relevant ESI?
This low-tech initial iteration of ECA can help you start to understand how you should structure your approach to eDiscovery for this case. What risks does this case pose to your organization? What is the likely scope—and cost—of completing eDiscovery? How can you adjust the scope of relevant data or phase its collection to minimize costs?
While it’s always worth starting with the first level of ECA, it’s rarely where you want to stop.
Level 2: Technology-Assisted Review Isn’t Just for Review
You may already be using technology-assisted review (TAR) to expedite and improve your results in the review phase of eDiscovery. If so, don’t let the name fool you into waiting to use it. There’s no reason to reserve TAR for review: it works equally well when applied to get an early sense of the data you have and what it means.
In fact, it’s worth thinking of ECA—which doesn’t even appear as an independent stage in the Electronic Discovery Reference Model—as a microcosm of the entire eDiscovery process. Before you engage in full-scale eDiscovery, you can evaluate your data, collect the most likely relevant portions (or, better yet, run ECA in place without the expense of collecting), and then apply eDiscovery technology to process, review, and analyze that data to make rapid decisions about the case. Using duplicate and near-duplicate detection, email threading, and other tools early on, you can limit data to the key facts while getting a realistic sense of how events unfolded.
This isn’t a one-way street: while TAR complements ECA, ECA also informs later TAR. By applying TAR on your ECA subset of data, you’ll get a better idea of what your case looks like—and that ECA can then guide and direct the full review you ultimately perform.
But don’t limit yourself to looking at this case: what’s past may also be prologue, so you shouldn’t skip an evaluation of historical data.
Level 3: Data Analytics in ECA
By tracking case metrics, you can readily assess—with real, concrete numbers—this case’s possible outcome and the level of eDiscovery spend that you can expect. What volume and depth of data does your first sweep predict based on previous experience? What outside counsel has gotten you the best results with similar cases in the past?
Focus on the “early” in ECA: you definitely want to know as much as possible before your initial Rule 26(f) meet-and-confer. Fortunately, technology can crunch data and get you answers faster than any review team. The sooner you have an objective assessment of not only the information relevant to this case but also the predictive power of analytics, the sooner you can make a confident decision about how to proceed.
For best results, start your ECA with a low-tech sweep of your human databases: your custodians. Follow that up with early application of TAR to get a firm grasp on the data in this case, and access historical information using data analytics from past cases. The more complete your ECA, the more you’ll get out of it.
Ready to take your ECA to the next level? We’re here to help you make early case decisions that are rapid, well-informed, and based on a realistic assessment of costs and likely outcomes. Contact us to learn more.