E- Discovery expert Craig Ball noted in a recent article that early case assessment (ECA) is a legal process that significantly predates electronic discovery. While Ball is certainly correct, the explosive growth of electronic stored information (ESI) has propelled e-discovery to the forefront of early case planning and strategizing.
Attorneys Elleanor Chin and Bob Rohlf examined ECA on a recent webcast, De-Mystifying Early Case Assessment (ECA) for Cost-Effective E-Discovery. Here are some of the highlights...
- ECA is a two-step process: A true ECA process comprises both an early data assessment (EDA) and an analysis of early case strategy. Rohlf, who serves as Exterro's inside counsel, acknowledged that modern interpretations of ECA have been largely “high jacked by vendors," who flooded the market with data-centric ECA tools primarily designed around collection and processing. A true ECA process involves both an assessment of potentially relevant ESI as well as a consideration of key facts, possible case strategies, venue and budget issues, and other issues. With that said…
- Electronic discovery has changed the game: The skyrocketing cost of e-discovery has amplified the importance of making key decisions at the earliest point in litigation before significant costs are accrued. “Early case assessment in the era of data-intensive litigation is really about the ability to use your data proactively early in the process and understand the case through the lens of potential evidence," said Chin, a partner at Davis Wright Tremaine. “Even preservation at the pre-litigation stages can be costly and require a significant investment. For this reason discovery strategy has to be part of early big picture decision making."
- Workflows are essential to ECA: ECA is often described as a single step or action in the larger e-discovery workflow. In reality, ECA is a multi-tiered process comprising several interconnected tasks. While each case may be different, legal teams should have an established workflow for handling the granular elements that comprise the ECA process. “You want to track what you're doing; manage your tasks from a centralized perspective," said Chin. “You want to minimize risk by having a coherent strategy and then work off of that rather than respond on the fly."
- Advancing technology can automate the full ECA process: Most ECA tools are designed to handle early data assessment needs. According to Rohlf, technology can be employed to facilitate early fact gathering and case strategizing as well. For example, a common way legal teams obtain key case information is through interviews with employees – or data custodians. “In the past that has meant literally having to pick up the phone and calling….and you work your way down the phone tree, consuming a lot of time," said Rohlf. “You can now automate that to a large degree. You construct an interview template that essentially asks those key questions and you build those into questionnaires that custodians can respond to." Rohlf says one of the key advantages of an automated interview tool is its ability to automatically capture and segregate responses, allowing legal teams to gather information quickly.
Click here to watch a full replay of Chin's and Rohlf's webcast.