Can Early Case Assessment Improve Your E-Discovery Projects?
Gregory L Fordham
September 2009
Early Case Assessment (ECA) is a process employed by almost all litigators. It can be used to determine whether or not to take a case as well as whether to settle or litigate a case.
In short, ECA is a process for making informed decisions about a dispute in its early stages. If done well, it can save clients considerable litigation or settlement dollars.
After all, it would be better to conclude that settlement is the best alternative early in the process rather than after significant litigation dollars had been expended. Similarly, ECA can avoid paying excessive settlement dollars if critical facts (the smoking gun) are identified early.
In surveys of practicing litigators the most important part of ECA includes an initial review of case facts, collecting key documents, interviewing clients, reviewing case law and developing a case chronology.
Although almost all attorneys admit to performing ECA, most claim that they follow a rather informal approach and do not follow any particular methodology.
The use of ECA in e-discovery cases is probably more significant than in traditional paper cases. After all, the costs of e-discovery can make reaching the right decision early even more significant.
Besides the usual go-no-go type decision, ECA can also assist in other areas as well. These other areas include the development of case strategy and facilitating preparation for procedural requirements like the Rule 26 disclosures and discovery conference.
Interestingly, there are still other places where ECA in e-discovery cases can be different than its paper counterpart.
Another area where ECA can be different for e-discovery cases than its paper counterpart is in the tools and the formality of the evidence handling process.
In the area of tools, there are two different scenarios that litigators should be familiar. The first is with the developing e-discovery appliance technology the second is the review platform.
The appliance technology covers a broad spectrum from e-mail retention to document retention and enterprise indexing. As its name implies, the appliance technology involves hardware devices that are attached to an organization’s network.
During daily operations these appliances capture and/or index e-document activity for the enterprise. When litigation arises, these devices can then be queried to locate and/or retrieve relevant documents.
So, the new e-discovery appliances can make ECA much simpler by facilitating the location and preservation of relevant documents.
For those clients not using the new e-discovery appliances, the document review will follow traditional identification and preservation techniques.
Unfortunately, with the larger volumes of ESI, the traditional identification and preservation techniques can waste a lot of time and money just to prepare a document population for culling and review.
Fortunately, technology is also improving this part of the process. Native document review eliminates the need for document conversion prior to performing the review along with its extra cost and time.
Furthermore, native document review is becoming more widespread, particularly with web enabled review vendors. Interestingly, a lot of these native format review tools can perform the conversion process in background. Thus, just performing ECA can provide a head start on the final discovery production.
Also, with a web enabled review platforms, a geographically diverse group can work on the project. This feature can broaden the expertise available at the early stages of the project and permit the identification of trouble spots in time to settle or to effect strategy.
Native review is not the only area where e-discovery warrants changes to one’s normal ECA approach. The other is in handling and preservation of the ESI.
ESI handling and preservation requires a formal approach. Using an informal approach can compromise the integrity of the evidence or even spoliate evidence.
Consequently, the collection and preservation effort is one area where a litigator needs to adopt more formal processes. It is even best to avoid using the client’s technology staff unless they have been specially trained in forensic collection and handling.
ECA is used in e-discovery cases just like in many others. Nonetheless, e-discovery efforts require some differences in the approach and practice of ECA.