Barry Murphy posted an article on his eDiscovery Journal Blog on September 1, 2010 titled, “Earlier Early Case Assessment (ECA)?” in which he outlines the maturation of the Early Case Assessment (ECA) model and how the industry has been contending that ECA needs to happen even earlier in the process to have the biggest impact on the overall cost of eDiscovery.    Since I have been an advocate of this “the earlier the better” approach for the past 24 months, I obviously agree and appreciate the fact that Barry is continuing to write about this important topic.

However, having come from a Six Sigma and Agile development (iterative) background and  therefore having seen the dramatic impact that continuous and iterative process improvement can have on any operating and or process model, I believe that there is room for dramatic improvement in the current approach to the eDiscovery lifecycle.

As a first step, I believe that we need to think about the process of eDiscovery as a circular, interactive and continuously changing  model instead of a linear model as the EDRM indicates.  Once we make this shift in ideology, we will then be able to visualize and apply the concepts of continuous analysis and improvement and possibly end up with a new approach to eDiscovery called Continuous Case Assessment CCA).

Historically, with the disconnected nature of how data moves through the EDRM, this may have been an impossible task to achieve.  However, with the recent advent of end-to-end solutions such as Autonomy that enable an integrated flow of data around a central repository and workflow platforms as Fusion from Exterro that bring together disparate processing platforms into a common work environment,  Continuous Case Assessment (CCA) is now a plausible approach.

Realistically, the disconnected nature of data storage, the geographical and timing challenges of collection and the general disorganized nature of  Information Technology (IT) will continue to pose a barrier to true CCA.  However, wouldn’t it be nice to be able to utilize a common assessment methodology and technology platform with a full arsenal of de-dupe, search, clustering and other related technologies throughout the entire lifecycle?

I posed this question to a well known litigator at the International Legal Technology Association (ILTA) conference in Las Vegas last month over a drink  and was surprised by his response.  He contended that technology was already too invasive and the last thing that he wanted was the ability for someone to easily analyze and therefore question every piece of electronic evidence at every step in the process.  Or, even worse to be able to analyze the accuracy of a manual review process (i.e. analyze documents that have already been reviewed by a lawyer or paralegal).    He went on to say that litigation is an imperfect process that lends itself to forming conclusions not necessarily based on the detailed facts but on the general preponderance of the evidence.  And, he went on to contend that over the years our legal system has figures out how to make it work.    His summary comment was that adding all of this technology is just going to make litigation more expensive by encouraging more analysis that isn’t necessarily going to affect the outcome of most cases.

I am not a lawyer and I have never played one on TV.  However, where I come from, more “analysis”  or better “analysis” (all within reason) is a good thing and methodologies like continuous process improvement have proven to be very valuable to the business decision making accuracy and subsequent success of the enterprise.

I guess that I just don’t get it?  Is this one of the those horseshoes and hand grenade analogies where being close is good enough in most cases. What does everyone else in the industry think?  I am sure that the technology vendors that provide analytics would be in favor of more analytics.  But, I wonder what the enterprise user that is paying the bills for litigation and Governance, Risk and Compliance (GRC) analytics would think about this?  I will ask a few and let you know what they have to say.

The full text of Mr. Murphy’s blog post is as follows:

One of the things I hear in vendor briefings more and more is early case assessment (ECA) happening even earlier.  This can be referred to as “very early case assessment” or “ECA in the wild” or “in-place ECA.”  At the end of the day, it’s all about moving ECA forward to happen in-line with identification and collection so that organizations can save money, make decisions earlier, and simplify the eDiscovery process.