by Dean Gonsowski on September 29, 2016
It’s been a while since I did a webinar expressly focusing on ECA. I must say, I’d taken far too long of a hiatus.
Fortunately, I got right back on the horse, and earlier this month I had the pleasure of moderating a webinar entitled: “Thinking Outside the (Black) Box with Early Case Assessment.” It featured a panel of stellar practitioners, including Alison Grounds (managing director) and Chris Haley (director of legal technology) at Troutman Sanders eMerge, as well as Rene Laurens (senior Relativity solutions specialist) from kCura.
Instead of jumping right into the nuanced themes, we wanted to establish the foundation of early case assessment (ECA). Alison proffered her well-wrought definition:
Early Case Assessment: Using technology to analyze ESI for developing legal strategy, assessing legal risks and needs, or complying with legal obligations in internal or governmental investigations, litigation, mediation, records management planning, or other legal matters.
As we’ve discussed before, today’s ECA has continued to evolve—and it isn’t anything like your grandfather’s ECA. One material part of the evolution had to do with the move past pure culling techniques.
Culling is Not Assessing
While valuable for reducing data sets and cutting review time and costs out of the e-discovery process, culling alone doesn’t really address many of ECA’s benefits. Those benefits include understanding not just the volume and type of data at hand, but also the way that data influences budgets and timelines; where search terms may come into play; and what concepts are covered across the data set.
During the webinar, Chris wisely noted that “most people in the past equated ECA with the filtering of data,” but that “now, you need to find what’s important.” To get a little insight into whether case teams are using ECA regularly in today’s landscape, we conducted a quick poll to find out about the audience’s experience with ECA:
While there was a range of experience levels, it certainly was good to hear that no one had suffered such ECA trauma that they were permanently turned off. Clearly, these workflows are having an impact on teams who pursue them. Yet, there is still plenty of room for expansion.
Benefits of ECA
For those who haven’t explored ECA yet, the panel highlighted reasons it should be a no-brainer for all modern e-discovery projects.
- Applies defensible limitations to discovery scope.
- Reduces downstream costs.
- Focuses attorney efforts on most relevant information sooner.
- Compliance with federal rule requirements.
- Enables specific objections to discovery requests.
- Gives insights into volume.
- Avoids potential alteration of metadata.
- Provides graphics and analysis.
Alison spoke at length about the need to prepare for the recent amendments to the FRCP and how ECA helps that cause. Proportionality arguments are made easier and more effective with early and accurate insights into data types and volumes. Chris raised a good point about making proportionality arguments: “You can't just say ‘it's too hard to find data’ to a judge—you need ECA tools to make a compelling argument.” Data insights like these also enables case teams to come with more specific responses and objections to e-discovery requests—making their arguments much clearer in court and at the negotiation table.
Aside from the savings achieved by culling during ECA, its search and analytics workflows also bring the most potentially critical information to the forefront, empowering expert attorneys to dig into the case from the start and create a more effective strategy.
The ECA Landscape
We ended the session by polling the audience about how often they used ECA.
Among our audience, only 12 percent of teams are using ECA on every case—and nearly 11 percent have never used it at all. The results weren’t shocking by any means, but they did illuminate the fact that there’s still a ton of room for upside.
ECA seems to be like many technology applications where most practitioners want to find the right fit for the tool at hand. While there’s nothing wrong with a “horses for courses” approach, today’s ECA applications—with analytics and data visualization capabilities built in—can be used effectively far more often than not.
Dean Gonsowski was the vice president of business development for Relativity, where he worked closely with enterprise customers, partners, and government agencies to enable them with more effective technology adoption for evolving e-discovery purposes. A former litigator, general counsel, and associate general counsel, Dean has more than 20 years’ experience in litigation, e-discovery, information governance, and cybersecurity.