by Dean Gonsowski on June 30, 2016
Samuel Clemens—best known by his nom de plume, Mark Twain—was famously quoted as saying “the reports of my death have been greatly exaggerated.” Apparently, while traveling abroad and becoming ill, rumors about his health rose to such a pitch that an American newspaper actually published Twain’s obituary. And, while his actual quote has morphed over time, it nevertheless serves as an interesting anecdote for anything that has prematurely been buried (like Roger Goodell – NFL Commissioner).
Early case assessment (ECA) has faced a similar fate over the last few years as the reports of its demise have blossomed, though some e-discovery experts denied this trend from the start. Let’s untangle fact from fiction to trace the origins of this solution.
The forefront of the ECA movement started in about 2008. At that time practitioners were just getting their arms around the 2006 FRCP amendments. Even then there was a need to be prepared for litigation—particularly early meet and confer conferences—as quickly as possible. Beyond the need to comply with those new amendments, the ECA message really resonated with corporations struggling to combat the rise of e-discovery and the proliferation of data volumes.
Initial versions of ECA allowed corporations to gain early insights into their data, as well as reduce ESI quantities prior to sending data to a vendor or outside counsel. Despite the numerous benefits, however, many of these early tools were reduced to their data minimization value proposition because they ultimately required export to a dedicated review tool. As ECA became more mainstream, review tools moved left and ECA tools moved right on the EDRM spectrum, and the push was for more end-to-end solutions.
Once ECA became part of the larger EDRM spectrum and not just a point solution, the movement took off for a number of years as enterprises began to focus on building their own e-discovery expertise in-house. Curiously, though, the ECA movement has recently appeared to lose steam with the advent of e-discovery analytics and technology-assisted review (TAR). For some, the rise of analytics seemed—like Mark Twain’s illness—to signal the premature death of ECA. Some seemed to think that it wasn’t wise or statistically appropriate to cull documents before using tools like TAR. Others were infatuated with the newer, shinier object offered by these cutting edge workflows. But, in either case, neither analytics nor ECA are mutually exclusive.
There are a wide variety of benefits to text analytics, machine learning, and various forms of TAR. In fact, a recent survey by the Coalition of Technology Resources for Lawyers (CTRL) revealed that 93 percent of the respondents thought analytics would be important for the practice of law in the next decade. However, it was—and is— naïve to think that analytics would obviate the need for ECA.
Misperceptions about proper application of analytics workflows may have also nurtured a general shying away from ECA. For example, a string of urban legends about analytics suggest that these features are most effective on very large document sets when, in practice, many analytics tools are just as useful on data sets that have already been selectively collected or culled earlier in the e-discovery process.
Why ECA is Resurging
Setting aside even the benefits of data reduction using ECA, another round of updates to the Federal Rules has brought the need for cooperation and proportionality even further to the forefront of legal minds. When case teams need quick insights into their data to build case strategy and determine ideal discovery protocols at the earliest stages of a case, ECA is still the way to go.
In short, ECA isn’t dead. In fact, it’s likely on the rise—thanks to several primary drivers:
- Data continues to grow at breakneck speeds. Yes, this has always been true since the advent of e-discovery, but consider this: 90 percent of the world's data has been generated over the last two years. And this data volume, velocity, and variety aren’t abating any time soon.
- Companies are particularly unprepared for the growth of unstructured data, with 50 percent of IT teams admitting that they’re not prepared for unstructured data proliferation.
- Analytics, once thought to be a substitute for ECA, are now being incorporated into the ECA process and are having an impact farther left in the EDRM.
- The investigative use case is continuing to expand in response to an increasingly aggressive regulatory climate (both domestically and abroad).
Ultimately, the evidence shows that a combination of workflows—which may include email threading, keyword searching, TAR, and ECA—is often the best way to tackle a review project as efficiently as possible. In the end, ECA’s death has prematurely been reported, and we predict that for the foreseeable future next-generation ECA tools will make this workflow even more critical for e-discovery practitioners of all types.
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.