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The Early Case Assessment (ECA) Debate Continues

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Tuesday, June 1, 2010

The Early Case Assessment (ECA) Debate Continues

As we emerge from the Memorial Day weekend and head into a short work week, it appears from my standard morning perusal of news and updates in eDiscovery and Governance, Risk and Compliance) GRC, that there is a “raging” debate about the definition of Early Case Assessment (ECA).  Well, maybe its not really “raging”.  However, there does appear to be significant ongoing debate with legacy litigators on one side, technologists on the other and many others either misinformed, under-informed or uninterested.

The latest players to enter the debate are George Socha & Tom Gelbmann or EDRM fame.  In an article published on the Law.com site on June 1, 2010 titled, “Don't Box ECA”, the pair contend that Early Case Assessment (ECA) actually proceeds eDiscovery.  They go on to contend that, “Early case assessment is a process. It predates e-discovery and extends beyond the limits of EDD's range.  ECA is a traditional aspect of the work done by in-house and outside counsel as they decide what to do about a new matter. It starts when the attorneys pick up the first whiff of a lawsuit, and covers a broad swath of potential preliminary decisions to make and actions to undertake.”  All of these observations are true.   And, it shows that shows some great examples of how Early Case Assessment (ECA) is a process that includes and requires the participation of litigators and technologists.

Litigators have proven, beyond a shadow of a doubt, that they can not appropriate complete an acceptable Early Case Assessment (ECA) process with the use of technology.  And, without the leadership of an experienced and knowledgeable litigator at the helm, the best Early Case Assessment (ECA) technology on the market is not going work.

For Early Case Assessment (ECA) to succeed, there has to be an experienced litigator using the right technology.  Any approach that leaves one or the other one the sidelines is doomed to failure.  Further and finally, I believe that the court system(s) and judges need to "get up to speed" on the technology of Early Case Assessment (ECA) and led the charge to ensure that "it" is used and used properly.

The full text of George and Tom’s article is as follows:

The latest electronic data discovery buzz phrase is most definitely "early case assessment." But if you examine the Electronic Discovery Reference Model (http://www.edrm.net/), which offers guidelines and standards for e-discovery consumers and providers, you will search in vain for a box entitled ECA.

By not including one, have we missed a crucial step in the e-discovery process?
No. In our opinion, the term early case assessment is misapplied in the e-discovery context. While ECA can — and often should — address e-discovery issues, early case assessment sweeps much more broadly. To the extent ECA connects with e-discovery, the EDRM diagram already accommodates it.

WHAT IS EDRM?
First, a bit of context for readers who may not be familiar with the Electronic Discover Reference Model project. Run by the authors, it includes more than 300 participants from 42 providers, 18 consumer organizations, and 48 individuals.

The group currently is tackling eight projects, ranging from an Information Management Reference Model, to Jobs, to XML, to Search. We held our 2010 Kickoff Meeting last month in St. Paul, Minn.
Participants pay fees ranging from $150 for an individual working on one project, to $7,500 for providers with more than 10 people, for all projects.

WHAT IS ECA?

Early case assessment is a process. It predates e-discovery and extends beyond the limits of EDD's range.
ECA is a traditional aspect of the work done by in-house and outside counsel as they decide what to do about a new matter.

It starts when the attorneys pick up the first whiff of a lawsuit, and covers a broad swath of potential preliminary decisions to make and actions to undertake.

For counsel inside and out, these ECA decisions and actions may include, but are not limited to:

• Is there a case? What is it about? What are the issues? Are they legal? Factual?
• How much does this matter appear to be worth? Is it only an issue of money? Is it an "above the fold" problem? Are important principles at stake? Is the matter likely to have an impact on the company's reputation? What about the stock price?
• Is this an isolated matter? Or part of a pattern? Are we looking at a class action lawsuit, maybe multi-district litigation?
• How much should I budget for this matter? How much for attorney fees, experts, EDD costs, other expenses? What about settlement?
• Is there insurance coverage? How much? Under what circumstances? Are we self-insured? Is excess coverage available? Do we need to set aside reserves?
• What resources do I need to devote to this matter? Internal versus external? Hard costs versus soft?
• Do I need outside attorneys? If so, whom? How many? At what level? With what expertise? Do I need local counsel? Do I want to share counsel with others?
• Who can tell me more about the matter? Can I get help from my colleagues in the law department? From current employees? Former employees? Consulting experts?
• Who has something I might need for the case? What do they have – insights? Experience? Information on paper? Information in electronic form? Tangible objects?
• Do we need a litigation hold? And if so, what does that entail? E-discovery can play a real and important role in ECA, as demonstrated by a quick examination of some of the EDRM stages. Think of the EDRM diagram as ECA writ small.

EXAMPLES

Here are a few examples:

Identification
: Do I have quick and ready access to electronically stored information? What content can help me better address the issues listed above?
What types of ESI are we going to confront? E-mail? Structured data? Office files (e.g., word processing, spreadsheets)? The contents of wikis, blogs, and other social media?
Where might the ESI be located? On what systems? In what geographical locations? Who knows about it, controls it, can get me to it, or can get it to me?

Preservation and Collection
: When do I need to begin preserving ESI? How should I do that? What forms of preservation should I consider? What legal hold process? How soon can I collect ESI for early analysis? Will it be part of a preservation process, or something separate?

Processing
: If I have identified ESI of potential interest, does it need some level of processing before I can begin to assess or analyze that data?
Do I need to get ESI converted to forms I can more readily evaluate? Are there ways to help me quickly find some wheat in the chaff?
Should some ESI be indexed, for rapid iterative searches?

Analysis
: Here is the "assessment" piece. What can I glean from the readily available ESI that helps address the topics listed above?

Review and Production
: Is there any portion of this ESI that I need to get to someone else quickly, and if so, in what form?

Presentation
: At this early stage, do I need to put any of this ESI in front of someone else — to draw out more information, attempt to validate or refute what I think I know, or attempt to persuade someone?

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