The Great Early Assessment Escape
Early case assessment (ECA) has traditionally focused on considering the facts and potential issues in a new matter in order to make strategic decisions about the case. Early data assessment (EDA) has emerged as a preliminary evaluation of data early in the life of a matter.
While both assessments seek to provide critical insight in the early days of a case, they have – to date – been considered two distinct and unrelated efforts. Incorporating EDA into ECA – and using emerging technologies to explore the continually expanding volumes of data earlier in the process – provides valuable information that will improve decision making and help shape the strategy of the case.
No News Flash Here: Data Volumes Continue to Grow
Everyone knows that, as our use of technology grows, so does the volume of data. This creates ever-increasing challenges for any process – such as eDiscovery – that requires you to collect and work with data. But the rate of growth predicted is astonishing. Here are some sobering facts:
According to a GIA report, information is currently multiplying at a rate of 65 percent each year and total data generated worldwide is projected to reach more than three million petabytes by the year 2020.Hard drive and storage vendor Seagate has said it will be able to produce a 60 terabyte 3.5-inch hard drive by 2016 – clearly anticipating demand for massive data storage requirements. The bigger data volumes get, the more important it is to have early tools and processes in place that can help you use that data to quickly assess and scope your case so you can make the right decisions and build an appropriate strategy.
The bigger data volumes get, the more important it is to have early tools and processes in place that can help you use that data to quickly assess and scope your case so you can make the right decisions and build an appropriate strategy. Gathering Facts: Assessing Risk and Exposure with ECA ECA has been around for a long time and Wikipedia offers a great, concise definition:
“Early case assessment refers to estimating risk (cost of time and money) to prosecute or defend a legal case.” The goal of ECA is to develop an early understanding of the case and begin formulating a strategy that is consistent with that understanding. ECA helps you make very early decisions, such as whether you are covered by insurance and which outside counsel should be retained based on the type of case. ECA also allows you to build a framework or outline to get you to the “finish line” of the case. It helps you prepare a strategy and either formulate a settlement plan or start to develop the storyline and themes associated with the case.
Identifying Data: Assessing Scope with EDA
EDA, which has emerged more recently as an integral part of the earlier stages of the electronic discovery reference model (EDRM)4, includes the examination of the technology, data sources and metadata of electronically stored information (ESI) relevant to the legal matter. The goal of EDA is to help you “right-size” your efforts, so you don’t under- or over-preserve, by determining the types of data that potentially need to be preserved, collected, and analyzed. This includes Identifying the key technologies from which data needs to be collected, such as SharePoint, Microsoft Exchange, Lotus Notes, archives (such as Enterprise Vault or Email Xtender), cloud-based email, and social media, if applicable.
EDA helps you uncover any potential collection challenges. All data collection is not equal, and collection may be more time-consuming from some systems than others. Or if there is data in foreign languages, you may need multilingual expertise. Identifying key collection details and restrictions will help you understand the scope of the
EDA also helps you understand any irretrievability issues. For example, if you had a corrupt Exchange database that didn’t back up for several weeks during the key time frame, you can provide the necessary evidence up front and avoid a charge of spoliation.
And finally, EDA includes investigation of the data itself. The data can help you create and drive the themes of the case, as well as refine the timelines and key participants. Early assessment of the data can also help you start to“peel the onion” of the case. For example, as you start to investigate the data, you may identify people or business
units that you didn’t even know were involved until after you’ve pulled the trigger on the decision to move forward rather than settle.
Bringing it All Together
On the face of it, ECA and EDA look like separate efforts, both offering valuable information but with little overlap. The reality, however, is that EDA really should be part of ECA, as insight gleaned from EDA can be incredibly valuable for ECA. While there may be sampling done as part of ECA, it can be difficult to accurately assess the case without looking more closely at the data. Such sampling provides you, at best, with a good understanding of just a few elements of the case. EDA can provide a more comprehensive view to help refine plans and decisions during ECA – in other words, it provides you with a broad understanding of the relevant elements of the case across the board.
Data has a story to tell and understanding that story early can help you build the themes of the case, as well as refine timelines and key participants. An ECA checklist published on The Settlement Perspectives blog5, offers an excellent, high-level overview of the key components of ECA – and helps to illustrate exactly where EDA can deliver valuable insight:
The claims summary
The other side’s position
The jury charge
A summary of legal issuesThe Forum, Your Opposition and More
A venue analysis
A settlement plan
Four of the seven categories in “The Facts” section can benefit from information gathered during EDA:
If you can get the right people looking at the case at the early stage – identifying and prioritizing custodians and starting to hypothesize – you can use iterative searches to follow the trail and start to locate some of the hot documents, identify who was involved, and begin building a timeline. In “The Forum, Your Opposition, and More” section, EDA can uncover potential collection issues you should highlight under “other circumstances.” Because EDA provides insight from the data of the case, you are better informed to make the appropriate strategy and budget decisions in “The Plan” section.
But getting this level of valuable insight about the data during ECA – without incurring high costs and long delays – has, in the past, been challenging. This is where having the right technology comes in.
The Role of Technology in Early Assessment
There are solutions that tout themselves as ECA technologies. But the reality is that ECA is not a technology– it’s a process – and many so-called ECA technologies are really filtering tools. Technology by itself cannot perform ECA, or even EDA. But, the right process, coupled with the right technology and the right people, can give you a significant advantage over the opposition.
Having the right technology can provide an advantage if it allows you to begin investigating data early in the process with iterative workflows that enable you to sample, validate and refine data and strategies throughout the early assessment process. Undertake data-driven fact-finding and trend analysis quickly and effective with easy-to-use graphical and detailed dashboards and reports. Make the investigative process transparent to all groups involved in the discovery process, including clients
and the courts.
The Value of Data: It Tells a Story
When it comes to litigation, knowledge isn’t just power, it’s your responsibility. The earlier you can gather knowledge about your case, the better you’ll be positioned to make appropriate strategy decisions. Data tells a story and the only way to uncover that story is by examining the data beyond simple, limited sampling. That means that ECA and EDA can no longer be treated as separate processes. When combined and appropriately implemented, the processes can provide what we call Early Data Intelligence™.
The key is to have the right level of understanding at the right time. The goal is not to provide the same level of data needed during attorney review, for example, but to add clarity and insight to make better decisions at the early stages of a case. With technologies available that can quickly and easily provide you with that clarity
and insight – based on Early Data Intelligence – time-and-cost barriers erode and increasingly more valuable and relevant data can be incorporated into the early assessment process.
Bob Krantz, CEO, Mindseye Solutions
Bob brings over ten years of experience in electronic evidence and discovery solutions to Mindseye Solutions with hands-on knowledge of the entire discovery lifecycle. His relevant experience covers Anti-trust, Insider Trading, SEC Investigations, Insurance Fraud, Second Requests, Intellectual Property Litigation, Freedom of Information Act requests, and many other areas.
Jeff Fehrman, Chief Strategy Officer, Mindseye Solutions
Jeff brings more than 15 years in the electronic evidence and information technology fields to Mindseye and consults with clients on topics related to electronic discovery, including business processes, data reduction strategies, litigation preparedness, and workflow design. He is a subject matter expert on electronic evidence and frequently speaks on innovations and obstacles facing corporations and law firms. He’s developed classes approved by CLE boards in California, New York, Pennsylvania and Virginia, and has trained hundreds of attorneys in digital forensics and electronic discovery.
He’s currently on the Board of Governors for the Organization of Legal Professionals (OLP) and has been an active member in the Sedona Conference’s Working Group on Electronic Document Retention and Production. Jeff is the co-founder of EDD Blog Online.