It is not uncommon to see early case assessment (ECA) grouped with the traditional EDRM stages, identification, preservation, collection and so on. Of course, ECA does not claim its own box in the ubiquitous EDRM model. Unlike the more action-based EDRM stages, ECA is a process unto itself, less defined by a specific activity than a series of steps that change with each project.
A good ECA process typically involves an initial quantitative analysis of potentially relevant electronically stored information (ESI). Sometimes referred to as an early data assessment, this encompasses a quick assessment of case parameters and a calculation of potential data volumes and costs. This “quick scan" evaluation is critical. The sooner counsel understands the potential breadth of discovery in a given matter, the quicker they can make an informed decision on how best to proceed before costs start accruing.
ECA also comprises a deeper analysis of potentially relevant ESI. The goal here is to move beyond raw numbers to gain insight into the core issues of the matter, general fact patterns, as well as case strengths and weaknesses. Not to be confused with the review phase, the “deeper dive" ECA is not dependent on human eyes or ESI review tools. It relies on a variety of search techniques and technologies capable of categorizing large ESI sets very quickly, delivering valuable information to legal teams in a matter of hours, not days or weeks.
There are also components of ECA that don't involve ESI at all. As EDRM co-founder George Socha pointed out in a recent article, lawyers must also “assess the viability of a matter, compare it against similar past matters, determine whether insurance coverage may come into play, make decisions about what counsel to retain, and engage in other similar activities focusing on evaluating the entire case early."
Another reason why it's difficult to define ECA in terms of the EDRM model is that there is confusion as to where in e-discovery process it should occur. Consider the two predominant ECA models:
- Traditional Post-Collection ECA: The “classic" ECA model involves assessing the ESI after it has been collected. This type of ECA naturally occurs much closer to the review stage.
- In-Place ECA: The newer, “in-place" ECA approach involves indexing ESI in its native environment and enabling legal teams to analyze it prior to collection.
Despite the emergence of advanced predictive technologies (i.e. predictive coding) that make in-place ECA highly effective and defensible, many organizations remain reliant on the traditional model. The reasons for this vary. Indeed, many lawyers may be somewhat unaware of the capabilities of newer ECA technologies. The legal profession, in general, is steeped in tradition and has always been more conservative in adopting newer technologies. Some organizations also remain beholden to the “play-it-safe" approach, which means immediately preserving and collecting all or most data belonging to custodians who are deemed to be involved in the core issues of the matter. Though this approach does reduce risk of evidence spoliation, it fails to fulfill one of the key promises of ECA, an “early" evaluation of potentially relevant ESI. Experts have also pointed out the increasing logistical hurdles associated with the traditional post-collection ECA approach. As stated in a recent report by analyst firm DCIG examining the newest generation of search technologies, “In today's distributed global enterprise with ESI potentially stored across multiple geographic locations in different file formats across multiple technologies, this is easier said than done."
Beyond the benefits of learning about the case sooner, in-place ECA also enables much more targeted collections because legal teams gain early visibility into what ESI is truly relevant. Overly broad and premature collections can be expensive and impede on regular business activities. Even collecting a large volume of “active" files from a single custodian's computer can be disruptive. Such collections can take hours and often render the computer being collected from unusable for the duration of the project. When addressing archived or legacy data, the collection process becomes even more time intensive and costly as specialized tools and expertise are usually required. Another negative byproduct of the traditional approach is over-preservation of data. In addition to increased storage costs, e-discovery costs and risks increase as future matters come to implicate larger volumes of data that could have been deleted as part of the organization's regular retention practices.
While the trend to move ECA more to the left side of the EDRM has been somewhat slow to catch on, some organizations are reaping the benefits of the more proactive approach. Linda Luperchio, director of information lifecycle governance at The Hanover Insurance Group, explained on a recent Exterro webcast that her company utilizes in-place ECA technology to achieve much more targeted collections and smaller, more cost-effective review projects. She shared one example of how the in-place ECA process recently helped the legal team take what would have been a collection of several million documents using the traditional approach and narrow it down to a much more manageable set of documents in a matter of hours. She concluded that with results like that, in-place ECA technology is “begging to be used."