Early Case Assessment (ECA)

With the accelerating increase in the amount of Electronically Stored Information (ESI) and the associated changes to the Federal Rules of Civil Procedure (FRCP) enacted in December of 2006, a proper understanding of preservation requirements and Early Case Assessment (ECA) have become an integral part of the litigation process.


In a perfect world, as soon as defense counsel or anyone within an organization with fiduciary responsibilities believes that there is the potential for litigation or is actually notified of a pending litigation, they have the responsibility to preserve any evidence that may pertain to the matter.

While each state, and some local jurisdictions, has promulgated its own rules, the Federal Rules of Civil Procedure (FRCP) in general and FRCP 26(a) and FRCP 26(b) specifically set forth the guidelines for producing, both spontaneously and upon request relevant and material evidence.

Inherent in the reasoning behind these rules is the requirement that in order to produce a thing, one must first have preserved it. For those parties who are not inclined to appreciate this inherent reasoning, there are other rules (and corresponding sanctions) designed to enhance this understanding.

For discussion of the "safe harbor" provisions of a proposed amendment to FRCP 37, and an analysis of numerous federal sanction request cases as related to the advisability of such amendment, see S. Scheindlin and K. Wangkeo, eDiscovery Sanctions in the 21st Century, 11 Mich. TELECOMM. TECH. L. REV. 71 (2004), http://www.mttlr.org/voleleven/scheindlin.pdf

For those parties that do understand the importance of these requirements or have learned the hard way through sanctions or case losses, the importance of these requirements, Early Case Assessment (ECA) is hopefully become a part the standard operating procedure (SOP) as soon as it is clear that a matter is imminent.

This all being said, Early Case Assessment (ECA) is becoming an actual market with its own consultants, technology, services and beginning of best practices.

Industry Quotes and Comments on Early Case Assessment
Following are several quotes from vendors and comments regarding the importance of ECA and their technology. As it appears that just about every technology vendor in the litigation space is getting into ECA in some way, this list is in no way comprehensive and therefore I would encourage other vendors to send me their thoughts, comments and descriptions of their ECA technologies.


Clearwell
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"Early case assessments represent a critical point in the lifecycle of a case, and is one of the primary reasons why leading enterprises and law firms are selecting solutions like Clearwell," said Kamal Shah, vice president of marketing, Clearwell Systems. "Clearwell plays a pivotal role by helping in-house legal teams and law firms assess risk based on case facts, more accurately estimate e-discovery costs, and develop case strategies much earlier in the e-discovery process."

"We were facing a complicated case and had virtually no time to determine the facts. If we did not have access to Clearwell, the case would have become excessively costly and time consuming, resulting in significantly increased risk," said Steven Perfrement, Esq, partner in the Litigation Practice Group at Holme Roberts & Owen LLP. "We were very impressed with the speed and ease of use of the Clearwell platform. The product was very intuitive and user-friendly, which saved us precious time on the case.

Clearwell's advanced capabilities made it very easy to find the key facts needed to accurately evaluate the case and prepare for early settlement negotiations." Clearwell's early case assessment capabilities provide insight into case facts at the beginning stages of an investigation or litigation, and enables enterprises and their law firms to:

- Determine what happened and identify the "key players."
- How did the incident happen?
- Why did it happen?
- Who was involved?
- When did it happen?
- How does the case posture appear on the merits?
- What is the amount of controversial facts and what it the ultimate exposure?
- Is this a routine matter or a unique situation?
- Can the case be settled quickly, or must we prepare for a protracted battle?
- What is the volume of evidence that is pertinent to the case?
- hat are the possible culling and review strategies that can reduce the cost and time of eDiscovery?
- Are you collecting all the data that you are supposed to be collecting?
- Are there any requirements for foreign language expertise?
- Are there any data quality issues?
- Which search term analysis may be necessary to present and discuss during the "meet and confer."?
- Which terms are most important to the case?
- Are the search terms proposed by requesting party too broad?
- Do you have an argument to limit the scope of discovery request?

Daticon
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Performing an Early Case Assessment (ECA) can provide valuable insight into all of these areas and better prepare the litigation team for the "meet and confer" with the opposition. A recent industry survey indicated that performing an early case assessment resulted in a favorable outcome in 76% of cases - among other benefits.

A well executed ECA assists the litigator and corporate counsel in understanding the following:

- The custodians involved in the matter
- Where their data is located
- How much data the case involves
- If any of the data is inaccessible

Additionally, in some cases ECA can provide visual insight into the data itself. Accordingly, ECA permits an informed risk assessment of the matter so the case can be settled quickly if potential costs rise or the results of the data visualization reveal bad facts.

Managing Legal Risk Using ECA
I also found a very interesting Blog posting on DCIG by Joshua L. Konkle on March 18, 2008 6:00 am titled Managing legal risk using early case assessment to reduce reviewed documents.

And although I don't completely agree with everything that Gregory Buckles says, it provides yet another voice indicating the importance of ECA. The full text of this posting is as follows:

Synopsis Part 1: Legal and business issues IT must know when choosing an early case assessment tool

Synopsis Part 2: Managing legal risk using early case assessment to reduce reviewed documents Electronic data discovery interview - Gregory "Greg" Buckles, eDiscovery business process consultant, Reason-ed, LLC, (Part 2 of 2).

Gregory Buckles is an independent corporate consultant specializing in discovery technology and process solutions. He has 19 years experience in discovery and litigation including police forensics, law firm, vendor, corporate and software development. He is an active participant in the Sedona Conference and EDRM projects.By Joshua Konkle writing for DCIGInc.comhttp://www.dciginc.com/

Joshua Konkle: I've discussed in-house early case assessment (ECA) with a few vendors. A common response is risk associated in the review process. Risk ensues when during the review an attorney needs more data from the source data set for review purposes, thus requiring the company to revisit the ECA system for more data. I was told in most cases it happens 70% of the time. What are you thoughts on that review data risk?

Greg Buckles: I would agree with that 70% of the time reviews require more data from the source, in fact, it is probably higher. The reason the source data needs to be recalled during review is based on a simple fact - "the review phase is the FIRST time a qualified reviewer has looked at the data qualitatively, i.e. custodians, concepts, context etc."Waiting until the data is in a review system to evaluate it is causing companies thousands if not millions annually. Those dollars would be much better spent as pennies, which is the cost of ECA tools in terms of review budgets. The goal's are simple 1) reduce data sets going into review 2) improve data review during collection.Companies can reduce the amount of data being re-requested during review if they evaluated data ahead of review. If a company desires to reduce the amount of money spent on review they must implement on-premise ECA tools and use them to review data.

Joshua Konkle: In your experience, what is happening today? Aren't companies doing early cases assessment through interviews etc?

Greg Buckles: Companies are doing early case assessment. Often times it is a very simple approach. For example, an attorney working for the company will ask an employee for their opinion on the issue and to submit all documents and email related to the cases or issue. Individual perception and memory impact these responses. Then, when an end-user delivers data it is typically only what they have received and what they have filed. However, there are thousands or more emails and documents in their sent items. These little things are unintentionally overlooked by employees.To overcome these challenges companies need tools that analyze the known relevant data. They don't need complicated preservation and legal hold; they just need to start looking at the data earlier in the process. For example, a recent client used the Axis Deduplicator to deduplicate PST files. Since it the reduced the size, they reduced the cost of an ECA tool. In this example, the client used Attenex Snapshot reports to get a dashboard view of the custodians and concepts. The intuitive interfaces enable a focused view to find the critical facts and criteria needed to decide strategy and arm the client for the meet-and-confer.

Joshua Konkle: In your experience, what are the pitfalls that enterprises have yet to encounter bringing eDiscovery inside their firewall?

Greg Buckles: The primary issue is defining which parts of the process to in-source and the thresholds for using outside assistance. The costs and effort associated with an average discovery must be evaluated. Then a company can design a legal risk management system in line with their needs and expected budgets. A gap analysis for both cost and effort will ensure the economics of the system are in the company's best interests. By economics, I mean avoiding spending more money than they are saving. A good start would be to purchase or test ECA tools.

If you would like to communicate with him directly, he can be reached at greg(at)reason-ed.com or by calling Reason-eD, LLC at 1 713 530 3416.

Labels: 26(f), Early Case Assessment, eCapture, eDiscovery, FRCP Rule 26(f), Meet and Confer, Pretrial Conference

posted by Charles Skamser @ 10:28 AM