ECA has evolved… Are you ready?

Early Case Assessment

As long as there has been litigation, there has been early case assessment. However, the game has changed with e-discovery. With new technologies in the mix, the debate on what is (and is not) included in ESI-related ECA has gained momentum. It is time that I add another perspective to the conversation.

Because costs matter, parties need early estimates – and appropriate controls – on the costs of collecting, processing and reviewing data. But to be truly useful, that information needs to be substantially complete. Using technology to quantify data counts provides only a snippet of information on cost. Quickly gathering substantive information and comprehensive cost information is what ECA is all about.

Learning about what is in the documents is key. Parties need to determine whether, and to what extent, content within the data can help establish facts or bring to light any interesting information. A properly executed ESI-related ECA helps determine both the appropriate scope of the full discovery process (including witness interviews and other non-ESI discovery practice) and the approach to take with regard to pressing and responding to motions, negotiating search terms, and conducting settlement negotiations. An added advantage of gaining case knowledge through substantive ECA is the ability to leverage that knowledge to achieve cost-reducing measures such as culling the data by reducing custodians to be reviewed or filtering the data to exclude non-relevant documents.

ESI-related Early Case Assessment

As a document review expert, I like to think about the goals of conducting ESI-related ECA:

  1. What will ESI discovery cost?
  2. How long will ESI discovery take?
  3. What will I learn through ESI discovery?
  4. What further steps should I take based on what I learn through ESI discovery?

There are three operational aspects to answering these questions: processing, substantive investigation and project management. While technology does have its place within this framework, a review team’s success within the short time frame allotted to ECA depends on its ability to understand and leverage a tool’s features to mine the data and the organizational expertise of a skilled project manager to lead the review.

That got me thinking about the activities and processes that lie within the operational ECA framework that I outlined above… I will expand on those next week.