Early Case Assessment

Early data assessment (EDA) is similar to ECA, and the two terms are often used interchangeably due to the central role that discovery plays in ECA. However, ECA is a more holistic approach to case management that takes many different factors into account to make an expedited decision on how to resolve a dispute.

Early data assessment allows parties to know what your case data (usually ESI) looks like before you process it, and gives insights into the scope of the project and its costs.

With an effective EDA strategy, you can obtain the information necessary to create an appropriate litigation strategy and support cooperation and proportionality in discovery, as well as develop a litigation budget and manage your litigation deadlines more effectively.

One of the most important parts of this process is the selection and testing of keywords. Keywords are the words or phrases you will use to search data collections and identify potentially relevant documents, whether they are applied as basic searches or in a more predictive or analytical context.

In its most basic application, early data assessment may mean searching your available data collections to see if potentially relevant documents hit on selected keywords. If no documents are found, you can refine your search until you find more meaningful results. However, if the results continue to be disappointing, it may also indicate that there is no evidence to support the claims in a case, or that rudimentary keyword searches are insufficient to properly assess the available data.

Once accurate keywords have been developed and you have a bearing on the scope of the potentially relevant information, take the time to count your potential custodians and estimate the volume of evidence for each. This is also the best point to evaluate how much time and effort a discovery project will take, as time periods can be different for each custodian and source.

In the U.S., more than 90 percent of all cases settle prior to trial. In federal cases, this number is closer to 98%. Therefore, discovery has become a de facto form of dispute resolution in U.S. courts. That is why the early phases of discovery are arguably the most important of any legal battle or dispute. This is when you identify whether or not your side will likely be able to proceed with an action or if it will be more cost-effective to pursue a settlement or alternative resolution.

These are the main benefits of gathering insights about your case as early as possible:

As we just discussed, the traditional linear review is giving way to an analytics-first workflow. That means legal teams are increasingly relying on available technology to understand case data early through analysis and intelligent culling, rather than an old-fashioned eyes-on review, where documents had to be reviewed one at a time—usually just to determine that a case wasn’t worth prosecuting.

But how exactly does ECA technology avoid conducting a linear review?

Broadly, there are 3 ways early case assessment software like Logikcull can help you evaluate the scope of discovery and gain insights about the strength of your case:

• Automatically eliminate unnecessary documents: You can quickly find all the worthless documents that won’t need manual review. Upon ingesting your case data into the platform, more than 3,000 processing steps are automatically applied, which help you immediately leave out any duplicates, corrupt or system files, privilege, etc. This automatic process usually leads to a 40% reduction of your original data set.
• Cull through your data to focus on what matters: Culling filters like the ones Logikcull offers are akin to those used by Amazon to whittle down large amounts of data. So, for example, users can hone in on just emails to and from certain domains, or just files above a certain size or which were created within a specific time frame. This is similar to how online shoppers search for products by identifying a size, a make, a brand, and so forth, so they are not looking at thousands of available options one at a time.
• Use relevant keywords to find smoking guns: The right keywords and keyword combinations can help you find the most responsive documents and get a preliminary understanding of the scope of the review and the strength of your evidence. With a tool that indexes all stop words and special characters, while allowing for bulk and advanced searches with boolean operators, you can get to the evidence quickly.

In addition, analytic tools can identify how custodians are talking about their work, which words are important, and what unexpected terms might be useful search topics. This information can help create a simple word list from a collection of emails and documents that can be used to find smoking gun documents and evidence later.

Early Case Assessment Best Practices

An effective ECA can take different shapes depending on the context and the nature of the case. One general rule, however, is that a good ECA strategy always marries an effective process with sophisticated ECA tools. 

These are some early case assessment best practices that can always be applied to make the process as effective and efficient as possible:

An important factor that is changing how eDiscovery in Early Case Assessment is employed is changes to the Federal Rules of Civil Procedure on proportionality. As mentioned in Chapter 1 of this guide, Federal Rule of Civil Procedure 26(b)(1) was rewritten to limit discovery to that which is “proportional to the needs of the case” and provided five factors for courts to consider.

The old rule 26(b)(2)(C)(iii) was clear that a court could limit discovery when the burden outweighed the benefit. However, new Rule 26(b)(1), implemented by the December 1, 2015 amendments, takes the factors in these old requirements and puts them at the heart of any discussion about the scope of discovery.

In addition, Rule 26(b)(1) eliminates the phrase “reasonably calculated to lead to the discovery of admissible evidence.” This means that requesting parties can no longer assume they can obtain discovery of virtually anything that’s “reasonably calculated” to be helpful in litigation. According to the rules, the factors parties must address as they relate to proportionality include the:

• Importance of the issues at stake in the action
• Amount in controversy
• Parties' relative access to relevant information
• Parties' resources
• Importance of the discovery in resolving the issues, and,
• Whether the burden or expense of the proposed discovery outweighs its likely benefit

In sum, under the new rules, lawyers have to provide more details and more information in order to make a claim that discovery is proportional to the needs of a case. This means lawyers must dispense with vague, broad claims or objections and rigorously vet proportionality factors in order to control the scope of discovery.

In practical terms, this may entail providing:

• Estimates outlining the proposed steps and the associated expenses with conducting certain aspects of discovery.
• Suggestions for alternative forms of production, if preserving evidence poses a significant burden.
• Itemized expenses, including time and cost to help bolster arguments and proposals.

Establishing a clear ECA process and policy can provide your organization with a structured way for conducting early evaluation of a dispute. As most internal policies, an ECA policy must be tailor made to the needs of your business and flexible enough to be adjusted when necessary. 

Apart from a specific policiy to manage ECA, there are other policies that govern things like the ability to defensibly remove immaterial information from business and IT systems that can have a strong impact on the ECA process. 

Most organizations have data management policies that describe actions to be taken to preserve data in the case of a legal event. However, even the best data governance programs fail if no one enforces or tracks the progress. For example, companies often fail to ensure that potentially relevant information is not improperly deleted or re-purposed when employees leave the organization.

Consult records management policies that determine how long different classes of information should be retained before deletion. In some cases, you can meet with Information Governance Committees, risk management, compliance, legal, I.T., and various individuals who oversee data management.