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Process Makes Perfect: Some Guidance on Mastering Early Case Assessment

By Babs Deacon and Jeffrey Fehrman; October 2010

Early Case Assessment (ECA) is the e-discovery solution most in demand, according to the 2009 Socha-Gelbmann Electronic Discovery Report (Socha-Gelbmann, 2009), and with good reason.

ECA is the litigation-related effort with the highest return on your investment. Frugal general counsel who mandate an intelligent investment in ECA reap significant benefits in favorable outcomes and cost savings.

There are many benefits and misconceptions about ECA. The benefits are overwhelming, but an understanding of them is needed in order to avoid falling victim to the misconceptions.

A LexisNexis online survey conducted between Jan. 28, 2007, and Feb. 23, 2007, by Cogent asked 341 practicing litigators at mid-sized (20-75 attorneys) and large (76+ attorneys) law firms across the U.S. a series of 40 questions about their early case assessment and analysis practices, the perceived value of those practices and outcomes they ascribe to early case assessment and analysis. Based on their answers, we can report that the benefits of early case assessment include:

Successful outcomes — attorneys responded that, on average, performing early case assessment results in a favorable outcome in 76 percent of cases
Strategic planning — 87 percent of respondents said early case assessment is beneficial for determining the best way to proceed with a case
Reducing expenses — conducting early case assessment enables attorneys to reduce the litigation expenses in 50 percent of their cases on average
Managing budgets — More than half of attorneys surveyed (57 percent) find early case assessment assists in their ability to prepare a more accurate litigation budget

Savvy litigators shouldn’t be put off by the misconception that ECA is all about electronic evidence or that they need some clairvoyant ECA software. ECA is a human process. It is litigation fact-research of the most traditional kind, and for all but a small portion of the work related to Electronically Stored Information (ESI), it is a paper process.

Misconceptions, as described by Socha-Gelbmann:

“ECA has been a hot topic for the past two years. We believe a major factor for this level of popularity is that it is being portrayed by many as a silver bullet for constraining runaway costs. A concise, generally accepted definition of ECA does not exist. Consequently, defining ECA depends on who you ask. Some purveyors of products are working at rebranding old tools as ECA adding to the confusion.”

True ECA

Early Case Assessment is a case management approach designed to assemble, within 60 days, enough of the facts, laws and other information relevant to the dispute to:

Evaluate the matter
Develop a litigation strategy
Formulate a budget
Prepare for initial discovery conferences, in keeping with Rule 26(f) of the Federal Rules of Civil Procedure
Formulate a settlement plan, if appropriate

ECA should look like a familiar process to any experienced litigator. Most of the tasks involved are time-honored case research and preparation.

Getting Moving — Understanding ECA Tasks

In order to get the most out of ECA, you must understand the process and the steps necessary to execute it.

Assemble the team — Remember, you only have 60 days. Make sure point people in-house and outside counsel have their marching orders and know who is responsible for each area. There is no reason to have expensive attorneys trying to track down a corporate point of contact while the effort loses momentum or information because members of the outside counsel’s team changed. Get a commitment of resources from all stakeholders and necessary participant groups. Identify technical experts if a future need arises.

Determine what happened and identify the ‘key players’ — This involves standard practices such as interviewing witnesses, filling out witness questionnaires or drafting interview memoranda, and compiling key pieces of evidence. Ask: How, Why, Who and When? Litigators review what has been compiled and follow up on leads to make sure their initial “story” of the case is complete.

This kind of investigatory work is the sine qua non of ECA and should be done by a crack team as early as possible. An initial list of key players, their titles, departments, responsibilities and employment dates should be readily available to the entire litigation team. This is very important information that must be gathered accurately at the outset of litigation to ensure that the legal hold process is on target and defensible. It is astounding how often this work is left for later and how much it can delay and increase the cost of discovery efforts down the road.

Evaluate the position in the case — The position informs the discovery strategy and is informed by it. It is important to right-size the preservation and collection effort to properly manage specific litigation risks.

How does the case posture appear on the merits?
What is the number of controversial facts and what is the ultimate exposure?
Is this a routine matter or a unique situation?
Can the case be settled quickly, or must we prepare for a protracted battle?

Map the landscape — Corporate counsel can save time and costs by compiling and organizing as much information about the organization and its information infrastructure as early as possible. Corporate, regional, divisional and departmental relationships should be mapped out; organizational charts compiled and initial data maps prepared.

Frankly, an organization that engenders litigation should be litigation-ready with procedures for litigation hold, data/organizational mapping, etc. Having a method in place for maintaining current infrastructure records is the real discovery cost and time saver.

Estimate a potential overall discovery budget — Recognize potential issues for ESI and the collection process such as mail archives, document management, backup tapes, legacy software, corrupt data, regional and foreign-language, and international issues. Diagnosing potential outliers in the e-discovery process can facilitate important meet-and-confer discussions and may help to create an “inaccessibility” argument.

Determine the volume of evidence that is pertinent to the case by identifying a highly select group of collections such as key custodians, other exemplar custodians, and server shares. You will want collections that would likely contain not only key items similar to ones identified earlier, but that would have exemplar ratios of responsive to non-responsive items, if possible.

Have an e-discovery expert/vendor perform a limited initial collection from the identified exemplars and process the data. The litigation team, now highly conversant with the facts of the case, can “dip” into this small collection to look for:

Volumes of information, average size of collections
Types of documents, files
Date ranges, timelines
Interaction between participants and threads
Potentially “missing” information

Maintain strict documentation of all research and sampling as well as any keyword searching during the sampling. A search term analysis can also be used for keyword negotiations during meet-and-confer to consider:

Which terms are most important to the case?
Are the search terms proposed by the requesting party too broad?
Do you have an argument to limit the scope of the discovery request?

There are tools to help litigation teams get a whiff of the data without having to fully process significant numbers of PSTs or restore stacks of backup tapes. Applications such as Index Engines, Tunnel Vision and Clearwell are a few of several. However, these are only the tools deployed as part of a comprehensive, documented ECA process.

Use the sampling and research to formulate a discovery plan. The team should be well informed enough to focus discovery on the most important pockets of data, not on a random sweep that will significantly inflate collections and costs.

Select and prioritize custodians and other collections, maintaining documentation that can be used at a 26(f) meeting to preclude opposition counsel from making overly broad production demands
Estimate the potential volume of data that would be collected, processed, searched, reviewed, and produced
Model the estimated costs and be prepared to back up budget projections with documentation if the court enquires

Conclusion

Getting a jump on a case early in the process needn’t be hampered by concerns about e-discovery costs or a wait-and-see attitude. Seize the initiative and realize the benefits in a clearer understanding of the case and scope of discovery in time to control costs and negotiations with opposing parties. There is no turnkey computer solution; disciplined litigating is still the order of the day. E-discovery will always be with us and it will always require legal and corporate professionals to manage and inform the process.

Babs Deacon is the director of consulting and data analytics at Integreon. She has over 20 years of electronic evidence discovery and litigation support experience working for law firms and solution providers.

Co-author Jeffery Fehrman is the vice president of forensics & consulting at Integreon. Over the past 12 years he has led numerous large-scale investigations across more than 30 countries around the world.

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Reprinted with permission from the October 2010 edition of Corporate Counsel © 2010 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.