Early Case Assessment (“ECA”) is an overused term that many in the eDiscovery business have adopted as a buzz word to define a process that is a combination of technology and professional expertise. It gets thrown about a lot, often by those that sometimes don’t know what it really means. As I was reading a blog posted by Charles Skamserby entitled “The Three Stooges of Early Case Assessment”, I came to realize there is a deeper message here where action is needed. The three stooges the title refers to are eDiscovery technologist, Lawyers and their Clients, all with differing opinions about ECA and what it represents. Some technologists believe that technology should be used throughout the ESI life cycle to reduce cost. Many lawyers think that ECA is a term invented by eDiscovery technology vendors to sell more technology. Corporate clients, the blog contends, is losing faith in both their lawyers and eDiscovery technologists believing that both are taking them “for a financial ride” by building a cottage industry based upon generating large amounts of data to review and produce.
You know a term or phrase has finally made it into the mainstream when Wikipedia defines it.
“Early case assessment, refers to estimating risk (cost of time and money) to prosecute or defend a legal case. Global organizations deal with legal discovery and disclosure requests for Electronically Stored Information "ESI" and hard copy paper (printed or bound) documents on a regular basis. ”[i]
The definition goes on to talk about how effective early case assessment might require the combination of professional expertise coupled with the use of various software-based tools. Many commentators contend that nothing really has changed about how cases are evaluated except that now we have much more information to evaluate.
This commentator agrees with that notion, but only in part. There is no question that the cost of discovery today is simply out of control. The reason, however, is hotly disputed. There must be dramatic changes in how we collect and analyze ESI in connection with what we have come to know as ECA. In the paper days, clients gave lawyers a redwell, a box or maybe several boxes of material to ‘evaluate” a claim or defense. Today clients are challenged to do the same thing electronically. A big part of that reason is due to the way corporations management, or lack of management, of ESI.
Software solutions designed for early case assessment are widely available, but are vastly misunderstood and often underutilized. The number of choices out there is mindboggling, even for those of us who keep up with them. This has and will continue to cause considerable confusion in the market. Most applications are built upon the “process everything” mentality. However, there are emerging low cost methods for evaluating ESI without processing content. For example, if a custodian’s laptop is collected, 90% or more may have no value other than for preservation or in the event a forensic exam is needed at some point down the road. In many cases, only certain file types or files within certain date ranges need to be processed to index content. Until recently, applications were built to essentially index all Metadata, such as date, sender recipient and other such information as well as index content. This process can and often is expensive and time consuming. Now, however, very low cost methods are available to index only Metadata with robust reporting that allows lawyers to isolate specific files for processing or review. This quick and relatively low cost ECA is vital in assessing, for example, the cost of discovery, or the merits of a claim or defense without full blow processing. ECA technology such as this is also very, very valuable in preparing for a meet and confer conference.
[i] http://en.wikipedia.org/wiki/Early_case_assessment
No comments:
Post a Comment