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April 26, 2011

Riding the Waves of Early Case Assessment

Can you really conduct early case assessment or the notion is simply a fancy indexing and culling model?  What exactly is “early case assessment” (ECA)? 

While working on a project for one of my corporate clients I had to delve deeper into this question and reached out to a few of my old industry friends and colleagues — Gyorgy Pados of Capital Legal; Richard Cohen, of Renew Data, Rick Lutkus and Lori Chavez of Seyfarth Shaw, Michelle Mahoney of Mallesons Stephen Jaques, and Jonathan Maas of Ernst & Young — to gain a better perspective on the widely debated phenomenon.

Earlybird As the novelty of the ECA concept starts to wear off and more and more practical evaluation and understandings are abound it’s perhaps time to reflect on what is the positioning of ECA on the Electronic Discovery Reference Model (EDRM) framework. Is it matured yet to be used in the right way and embraced?  What capabilities are properly framed “ECA”?

ECA is used in this context by the legal technology and services industry with varying degrees of muddied waters. Both in the technology and services paradigm ECA could refer to appliance, software or software as a service to quickly collect-index, de-duplicate and search electronically stored information (ESI) to provide fast up-time analysis of its content. The concept is a platform or service to facilitate a quick fly-over of the ESI collection of the matter at hand to gather key reports of data make up, information and communication histograms patterns, concepts and themes, keyword analysis and evaluations. Most of the ECA offerings provide dynamic probing and data evaluation facilities to arrive to the relevant ESI at scope very much akin to the traditional fact finding early case evaluation approach for the strength and weaknesses of the case.  However, is this the right way to even define ECA, or should it mean something different, such as analytic capabilities prior to collection or indexing of data?

Read more on the Law Technology News website here.

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Comments

Recent comments from the LTN website:

1. April 27, 2011 10:56 AM

George, thanks for your comment, I am glad you noted this important distinction.

While I completely agree that "ECA" should really be called "EDA" if used in connection with the data during e-discovery, the reality remains that this "misnomer" is alive and well and therefore attracts attention to the topic of assessment itself.

As I mentioned in my article, most ECA products provide dynamic probing and data-evaluation facilities to arrive at the relevant ESI which is akin to traditional fact-finding early-case-evaluation approach to assess the strengths and weaknesses of the case itself, not just the data associated with the case.

But is this the right way to define ECA, or should it mean something different, such as analytic capabilities prior to collection or indexing of data?

To paraphrase one of my favorite Saturday Night Live sketches "Coffee Talk with Linda Richman" - The Early Case Assessment is neither Early nor a Case nor an Assessment - discuss :)

— George I. Rudoy

2. April 27, 2011 09:42 AM

While I agree with George Rudoy on much of his assessment, I take issue with one point - the use of the phrase "Early Case Assessment." A better phrase is "Early Data Assessment."

Although the phrase "Early Case Assessment" continues to enjoy wide use in connection with electronic discovery, it is every bit as much a misnomer today as it was when Tom Gelbmann and I commented on this in the June 2010 issue of Law Technology News (see "Don't Box ECA," http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202458746630).

True early case assessment looks at concerns such as whether there is a case, what it is about, what value to assign to it, whether insurance coverage is available, whether outside counsel are needed and if so which ones - a host of issues that have little and sometimes nothing to do with the electronically stored information we focus on for e-discovery.

In the context of e-discovery, what we really are talking about is "Early Data Assessment" - looking at some of the readily available ESI early on in the life of the case, to see what it tells us about the facts and legal points, to help us start to frame one or more potential story lines, to give us some guidance about where to look for further information and what type of information to consider chasing after.

As we noted in the June 2010 article, all that is the EDRM process writ small, at least from Identification through Presentation - the diagram dropped into an EDA process.

— George Socha Jr.

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