Early Bird Gets the Worm - Early Case Assessment Gets the Facts

Getting to the facts of the case as quickly as possible: this has always been the primary goal for any legal team when faced with litigation. But in the digital age, where electronic data pervades and is growing each year exponentially, the approach to that goal has changed.

If you asked ten e-discovery professionals to describe early case assessment (ECA) you're likely to get ten different answers. Unlike other e-discovery processes, like preservation, collection, and review (all of which center on specific sets of actions), ECA is a much more dynamic process which can involve a number of different approaches and strategies that change from case to case.

Early case assessment (ECA) is the process of attempting to quickly surface the key intelligence which will ultimately guide case strategy early on in a legal matter. An effective ECA strategy seeks answers to questions such as:

• What are the key issues in the legal matter?
• What keywords and search terms are relevant to those issues?
• How much potentially relevant data do I have?
• What are the potential e-discovery costs related to the complaint?
• What is my overall legal liability?
• Are there any key documents that must be accounted for?

When you have answers to these questions, it's much easier to determine whether to seek an early settlement, proceed to trial, or attempt to adjust e-discovery parameters so they are less costly and burdensome.

It's important to note that ECA comprises much more than simply examining potentially relevant ESI, a component of ECA sometimes referred to as early data assessment (EDA). ECA is comprehensive evaluation of legal liability and potential costs at the outset of a case. In addition to looking at the relevant data, ECA will include comparing matters against similar past matters, decisions about what counsel to retain, and looking at previous court rulings to assess the viability of a matter.

ECA Best Practices

An effective ECA process is dependent on a variety of factors that stretch from one end of an e-discovery project to the other. Holes in the e-discovery workflow or areas of inefficiency directly impact the efficiency of your ECA activities. Some best practices to keep in mind that will directly impact the ECA process include:

• Creating a defensible deletion strategy

A big part of ECA involves proactively interacting with the potentially relevant evidence of the legal matter. That's a more feasible task when there is less data to sift through in the first place. Your ECA process will be much more efficient and effective if you have a defensible deletion strategy in place that limits the amount of redundant, obsolete, and trivial data stored across your enterprise. Learn more about defensible deletion by reading the recent article, "Legal Considerations for Defensible Deletion Practices."

• Involve IT early and often

Just because ECA revolves around case strategy doesn't mean IT doesn't have an important role to play. In order to perform the necessary data analysis, legal has to understand the data environment, (e,g, how much data resides on certain systems and how easily data can be accessed). That's IT's bread and butter. We even created a checklist dedicated to IT reporting for legal which covers key ECA considerations.

• Developing strong preservation procedures

We have an entire section dedicated to preservation, but it's applicable here as well. In order to perform the necessary ECA data analysis, you have to be confident that potentially relevant data is being adequately preserved. If there are holes in your preservation process, any delay in going out and collecting could result in spoliation and render your ECA efforts futile.

• Communicate and cooperate with opposing counsel

FRCP 26(f) “meet and confer" conferences provide a good model for limiting over-collections and cost overruns. Once you've gathered a preliminary view of the evidence during your ECA activities, it's usually a good idea to meet with opposing counsel to discuss what was found and what was not, disclose any anticipated technological hurdles, and get a sense of where the other side may be willing to compromise. Even if your discussions don't go anywhere, the judge will appreciate your efforts to cooperate (see our 2015 Federal Judges Survey on E-Discovery Best Practices and Trends).

• Collect in phases

As discussed earlier, one of the goals of in-place ECA is to limit the amount of data that is collected. One way to accomplish this is adopting a phased collection approach. Early collection efforts should be focused around the most relevant items, such as contracts, email, ESI most at risk of being lost, CRM systems, instant messaging, and other data sources. Going through this initial process of pursuing "low-hanging fruit" will often be sufficient as you examine the other potentially relevant evidence and determine what else might need to be collected.

Conclusion

Everyone knows the old saying, “The Early Bird Gets the Worm.” With E-Discovery, that couldn’t ring more true. Early Case Assessment, and all that it encompasses, will give you a competitive edge in attaining a just, speedy, and inexpensive conclusion to a matter. It today’s fast paced digital world, what may seem unnecessary one minute becomes imperative the next. With changes in the types of data that must be searched and collected, new e-discovery technologies, and amendments to the FRCP, it seems ECA is quickly falling into that category.