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The Three Stooges of Early Case Assessment (ECA)

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Thursday, December 3, 2009

The Three Stooges of Early Case Assessment (ECA)

Over the past 24 months, I have spent a good portion of my time working with the leaders in the legal departments of the Global 2000, their counterparts in the IT department, partners and heads of litigation and litigation support from some of the larger law firms in the US and the leaders from many of the eDiscovery technology vendors. The conclusion that I have come to is that everyone from this group has their own definition of Early Case Assessment (ECA) and the associated value and everyone thinks that everyone else has it wrong. Therefore, looking at it from the outside, it looks like a scene from one of the Three Stooges movies. First of all, I am in no way questioning the intelligence or the intentions of any of the groups involved and I mean no disrespect to any of the players. Further, I also have to disclose that I have spent my entire career on the technology vendor and business process consulting side of this debate, I am not a lawyer and therefore probably do have some amount of bias whether I want to admit it or not.

What is Early Case Assessment (ECA)?
With the accelerating increase in the amount of Electronically Stored Information (ESI) or , as litigator probably view it, Electronically Stored Evidence (ESE), the complexities and cost of identifying, extracting, processing and analyzing data before a case has barely even started has gone up dramatically. Add the changes to the Federal Rules of Civil Procedure (FRCP), technical realities like "metadata" and legal realities like new opportunities for "inadvertent disclosure" due to lack of technical understanding and you have the makings of a a train wreck (see eDiscovery Rule 16 Train Wreck).

So, Early Case Assessment (ECA) is a term that was coined by someone in the legal industry to define the process the needs to take place and the technologies that need to be employed during the initial stages of a case in order to determine what Electronically Stored Information (ESI) associated with the case/custodians may potentially be Electronically Stored Evidence (ESE), what may be responsive and privileged, what will need to be reviewed and what will need to eventually be produced. (please note that there is even strong disagreement among the various Three Stooges in my example regarding exactly what should be happening during the ECA phase). The lawyers believe that ECA has very little to do with the technical aspects of ESI or ESE and has more to do with the "merits" of the case and the subtle nuances of strategy. The technologists or vendors believe that ECA is all about technology with data extraction success percentages, complex conceptual search algorithms, document conversion and manipulation and production formats. The end users or clients (may favorite characters in this entire scene) just want to know, " why no one seems to really understand what is going on and why does this cost so much?".

For those interested in more details, from my perspective, about the evolution of Early Case Assessment (ECA) and some of the other current discussions, you can read some of my previous blog posting: June 22, 2008 Early Case Assessment Technology Getting Integrated into the eDiscovery Lifecycle; August 19, 2008 Early Case Assessment; August 27, 2009 Early Case Assessment; and, November 3, 2009 Early Case Assessment (ECA) Should be Emerging as a Best Practice.

What do the Lawyers Think?
Based upon working with litigators on lots of cases and on several responses to my various blog postings on this topic, lawyers believe that Early Case Assessment (ECA) was a term invented by the eDiscovery technology vendors to sell more technology. And, the discovery process and what has to be done to evaluate evidence to determine whether or not to proceed with a case, the strategies and how to prepare for an eventual trial has not changed at all with the increase in the amount of Electronically Stored Information (ESI). As I heard one litigator say, "discovery is discovery and evidence is evidence no matter what form it is in".

What do the Technologist Say?
The eDiscovery technologists believe that with the increase in the amount of Electronically Stored Information (ESI) that discovery is no longer about a filling a conference room full of legal boxes and feeding cold pizza to a group of first year associates to put sticky notes and other colored stickers on documents. Even small cases in 2009 can have millions of pages of Electronically Stored Information (ESI) that won't fit into a conference room and couldn't possibly be read and accurately sorted by anyone.

As such, the process of Early Case Assessment (ECA) has to be supported by sufficiently advanced technology. Further to this belief, I have heard more than one technologist contend that technology could in fact do a much better job throughout the entire case lifecycle and the value of lawyers is on a downward trend headed towards obsolescence and irrelevance. There is even a really great online video by Jeffrey Ritter, ESQ where he contends that in 50 years machines will indeed replace the human element in trials. (Click Here for a link to the Video).

What to the Clients Think?
Fueled almost exclusively by the increase in the cost of eDiscovery, litigation has become incredibly expensive and unfortunately for our great legal system, out of reach except for the very wealthiest among us (both individuals and corporations) or those backed by government prosecutors. In addition, it has been my experience that many leaders from the Global 2000 have lost faith in their outside counsel, believe that they have been over charging them for years on eDiscovery and are looking for alternatives. Further, many of also lost faith in their inside counsel and blame them for the issues with outside counsel. Finally, these same Global 2000 leaders are also leery of technology vendors as they believe that they have been "taken for a financial ride" with little or no discernible return on investment (ROI) with content management, ERP and now Governance Risk and Compliance (GRC) solutions. Being on the technology and consulting side of this equation, I find some of these fears to be unfounded. Nevertheless, the perceptions exist and have to be taken into account when trying to convince corporate leaders that new Early Case Assessment (ECA) technology is the answer to all of their eDiscovery issues.

Who's on First?
Well, it's at least obvious to me that the right answer is some combination of all of the above opinions and views. In principle, the legal practice of discovery has not changed. And, in practice, it is unrealistic to think that machines can replace the human element. And, I would hope that most legal departments and their outside counsel are doing the best that they can to deal with eDiscovery and reduce the costs as quickly as possible. Further, the natural confrontational relationship between corporations and technology vendors is a healthy process and one that will eventually produce solutions that are in the best interest of the client.

So, as much fun as it is to watch these Three Stooges point fingers at each other and refuse to take any blame themselves, the right answer is for everyone involved to work together to find the best solution. Lawyers have to accept the fact that technology is going to play big role in eDiscovery, technologists have to accept the fact that some human intervention is always going to be required and corporate leaders have to accept the fact that everyone is not out to take advantage of them financially. And then we can all sing kumbaya and have somores.

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