Without a way to reduce massive data volumes during the ediscovery process, legal teams can see workflows and costs quickly spiral out of control. However, early case assessment (ECA) through the use of ediscovery software solutions can provide a “preliminary walk-through” of electronically stored information (ESI).
ECA can play a critical role in decreasing data volumes to allow legal professionals to focus on the relevant information at hand and in controlling costs to assuage concerns about surpassing their budgets. By conducting a comprehensive evaluation at the onset, legal teams can adequately assess the financial impact and legal liability of taking on a potential case, which inevitably helps control and reduce costs.
What Is Early Case Assessment?
Depending on whom you ask, the answer to this question may vary. Early case assessment can mean a variety of different things to a legal professional since each organization may assess a case differently due to specific variables unique to an organization. But in the broadest terms, ECA is a process used to investigate and quickly review ESI, paper documents, and other evidence in the early stages of a potential legal matter.
Once the data is collected, it is used to evaluate risk and guide case strategy. With ECA, it is much easier for legal teams to determine whether or not to pursue an early settlement, go to trial, or attempt to adjust the scope of ediscovery to make it less costly and burdensome for the parties.
ECA helps legal professionals answer critical questions like:
- What are the estimated ediscovery costs?
- What is the legal liability?
- How much data is there? How much data can defensibly be culled?
- How much data requires actual human review?
- Who are the significant custodians?
- Where does the data reside?
- What file types does the data include?
However, ECA is much more than just examining potentially relevant evidence. It is a comprehensive assessment of legal liability and potential costs at the beginning of a case, which helps organizations feel more confident about their ultimate decision.
Benefits of Early Case Assessment in Ediscovery
The overall benefit of ECA is that it allows you to gather knowledge about your case early on so you’ll be better positioned to make strategic decisions about the case. But the traditional approach to ECA has involved legal teams collecting and reviewing ESI in large sets, without preliminary analysis to determine the potential scope, relevance, or key relationships between their data. The inefficiency of this method costs time and money for legal teams who not only have to sort through duplicative and irrelevant data, but also may miss key early insights that could otherwise provide strategic advantages. In contrast, teams that transition from traditional ECA methods to modern ediscovery technology benefit from the ability to assess critical information about a legal matter at the onset. As a result, they’re better able to uncover relevant documents, target their collection efforts, and chart a successful case strategy.
Legal teams are battling a growing volume of data in litigation, as well as increasing numbers of claims with complexity and protraction — all while dealing with tighter budgets and the struggle to attract and retain talent. As such, both law firms and in-house legal teams are prioritizing a balance of value and cost savings. They need the ability to get ahead of costly and time-consuming ediscovery challenges in order to determine the most effective approach to a matter.
Getting control of ediscovery early in the process allows legal teams to efficiently cull data, help reviewers be more productive, and make sure the process is defensible. Part of getting that much-needed control means using ediscovery software for ECA to review documents from collections and uncover relevant documents that are likely responsive in the matter. Choosing the right ECA process and supporting it with the right software allows legal teams to realize ECA benefits that include:
- Early risk identification and analysis.
- Enhanced ability to evaluate potential end-game solutions.
- Improved client satisfaction.
- A reduction in settlement and resolution costs and the time it takes to come to a resolution.
Ediscovery software is critical to efficient ECA, but only if you have a grasp on the process.
What Happens During ECA?
Most attorneys can estimate the potential size of a case and how much it will cost by simply looking at basic facts. However, assigning concrete figures and data to initial forecasts requires an efficient ECA process, from conducting complex searches to creating comprehensive reports. Following are some actions to take in order to move through this process efficiently and thoroughly.
Conduct Complex Searches
Complex searches are one of the most essential components of early case assessment. Legal teams need to be able to create, run, save, share, and manage complex searches to simplify finding documents containing specific and relevant information. ECA software can allow teams to easily run search term reports and create precise searches to programmatically remove irrelevant content and promote it to the review stage.
Visualize Data Points
It’s one thing to have access to data, but gaining a clear understanding of what that data means is another thing entirely. Data visualization software makes the early case assessment process run more smoothly by giving legal teams a modern and visual interpretation of data points. This expedites an otherwise lengthy and tedious process, allowing legal teams to explore documents at a glance without the need to review individual documents or conduct a predetermined search.
Evaluate Search Term Reports
During early case assessment, it’s critical to see what patterns arise from the evidence during the discovery stage. With ECA technology, legal teams can run search term reports to identify documents containing specific keywords or terms that are important to a case. Everlaw’s ECA tool, for example, can run numerous metadata and content searches simultaneously and quickly find out the number of documents that hit on any searches within a given report.
Perform Data Analytics
Data analytics can turn heaps of raw data into useful information. Legal teams use data analytics to create reports describing data volume, custodian names, date ranges, email domains, critical concepts, and other insights into large data sets. Data analysis using ECA software can help parties make informed decisions about the best course of action to take in a particular matter.
Utilize Sampling to Analyze Data Sets
Data sampling, another way to analyze large data sets, operates on the premise that, by reviewing a representative subset of documents, accurate conclusions can be drawn regarding the entire data set. In ediscovery, this involves examining a small set of documents for relevancy to determine how many relevant documents might exist within a voluminous data set. Legal teams can program ECA technology to look for specific keywords and other identifiers to pull only what’s relevant.
Create Comprehensive Reports
Reports make it easier for legal teams to understand important figures, trends, and other information about a particular case. Cloud-based ediscovery software lets legal teams create, upload, share, and export these reports on demand when it becomes necessary to hand them over to the court or opposing counsel. They also deliver a record of ediscovery activities for post-litigation review and analysis.
Early Case Assessment Checklist
While individual approaches to early case assessment may vary, this ECA checklist of items to cover can help guide legal professionals through the process.
1. The Facts of the Case
- A timeline that shows key dates aligned with the relevant facts of the case and any supporting documents.
- Summaries of all key interviews and witness evaluations.
- A list of likely expert witnesses who can support the case.
2. A Legal Analysis
- A summary of the plaintiff’s claims as well as the defendant’s response.
- The position the other side is taking, including their complaint, response, and anything that provides their perspective in their own words.
- A draft of the jury charge to discuss with the opposing attorney and judge to keep the jury on track.
- A summary of any additional legal issues that may arise, including an assessment of the likelihood of successful legal motions.
3. An Analysis of the Venue and Opposing Parties
- An evaluation of the court and jury pool.
- Research into past verdicts in similar cases.
- An analysis of the opposing counsel and their previous trial experience.
4. A Strategy
- An outline of your strategy, involving collaboration with the client.
- A settlement plan and analysis to support it.
5. An Assessment of Potential Exposure
- An assessment of the client’s risk of exposure to damages and costs such as:
- Attorneys’ fees.
- Compensatory damages.
- Statutory damages.
- Punitive damages.
- Offers of judgment.
6. An Assessment of Possible Outcomes
- An analysis of the likelihood of favorable termination, compared with the risks of continuing the litigation — enabling the client to make informed decisions throughout each stage of the case, including the:
- Pre-filing stage.
- Pleadings stage.
- Class certification stage.
- Discovery stage.
- Summary judgment stage.
- Pre-trial conference stage.
- Trial stage.
- Post-trial and appellate stages.
7. An Initial Cost Estimate
- A line-item budget to help inform the litigation plan to assess whether to continue litigating after reaching various stages of the case, including:
- Discovery (fact and expert), which is the most costly stage of litigation.
- Class certification (if applicable).
- Summary judgment and adjudication.
- Pre-trial conference.
- Post-trial motions.
While not all of these steps will be relevant to every case, such a checklist can help you streamline the ECA process and more effectively manage litigation.
Everlaw’s Interactive ECA Solution
Everlaw’s single, unified platform for ECA and review can do the following for litigators when paired with an effective ECA process:
- Control costs by narrowing the scope of review. A U.S. State Attorney General’s Office predicts reducing spend by over 20% by leveraging Everlaw ECA.
- Streamline workflows. Everlaw makes culling efficient and accelerates document review using an integrated platform that eliminates the need to export data to other platforms.
- Reduce data volumes. Law firms have reduced data volumes by over 70% on average using Everlaw ECA.
- Rapid upload speeds. Ingest up to 900,000 documents per hour while simultaneously checking for errors and duplicates from nearly every type of data.
- Cloud connectivity. Upload data directly from the most popular cloud applications, thanks to Everlaw’s Application Programming Interface (API), which integrates with Office 365, Dropbox, Google Drive, SharePoint, OneDrive, Google Vault, and more.
- Upfront processing and imaging. Everlaw ECA allows full interaction with documents that are processed and imaged up front, even before they’re promoted from the ECA environment to Active Review.
- Single-click promotion. Immediately promote documents in bulk from the ECA environment to the Active Review environment.
- Simple, yet powerful searches. Easily run search term reports and create precise searches to cull documents and isolate only the information you need for your case.
- Data visualization. Access visual communication patterns to help narrow down specific dates or custodians.
Learn how Everlaw’s ECA databases streamline the early case assessment process and help reduce the costs associated with hosting large amounts of data. For a deep dive into ECA, download our white paper: Getting Started with Early Case Assessment: Strategies for Performing ECA.