• Contributed by:

    Babs Deacon
    on Thursday, June 3, 2010
  • Comments: 1

    Early Case Assessment – The Emperor Has No Clothes

    Early Case Assessment (ECA) is the e-discovery solution most in demand, according to the 2009 Socha-Gelbmann Electronic Discovery Report. In my blog post, E-Discovery Takeaways, I discussed the various methods clients are using to reduce the cost of handling e-discovery such as by in-sourcing and moving data to the cloud. Many corporations and law firms are also pinning their hopes on ECA. This hope, however, is often misplaced; effective ECA requires detailed process know-how and avoiding undue faith in a single application touted as an ECA panacea.

    The report describes industry wide confusion between perceived and true functionality offered by ECA applications:

    “ECA has been a hot topic for the past two years. We believe a major factor for this level of popularity is that it is being portrayed by many as a silver bullet for constraining runaway costs. A concise, generally accepted definition of ECA does not exist. Consequently, defining ECA depends on who you ask. Some purveyors of products are working at rebranding old tools as ECA adding to the confusion.” [emphasis added]

    The survey results also indicate that “overselling” by software providers is one of the biggest problems in e-discovery related to ECA. Hand-in-hand with this problem is the need for ESI-specific lawyer education and mentoring.

    From Silver Bullet to Gold Rush

    Consumers of e-discovery services and software should take note of the Socha-Gelbmann report’s warning. It is always wise to be wary of applications that promise to “do it all”. Most applications do one or two things well and the rest poorly. Recently, it seems that developers slap “Now with ECA!” stickers on products that could potentially be used for ECA (often with an enormous amount of effort) but which don’t actually include any new functionality specifically designed for this purpose.

    The confusion surrounding ECA recently prompted George Socha and Tom Gelbmann to author an article on the subject, Don’t Box ECA (Law Technology News, June 2010). They point out that, while ECA can intersect with the discovery process, it actually goes beyond it. For the purpose of this blog post though, I’ll focus on how ECA does apply to discovery.

    The Truth about ECA

    At Integreon, because we consult with organizations at every stage of the EDRM framework, we have been beating the ECA drum for a long time. There is no replacement for old-fashion know-how, preparation and organization. True ECA is a managed process where the litigation team creates and reviews data maps, conducts and reviews potential custodian interviews, and looks at sample data. There are tools that can make some of this process easier but nothing really replaces this litigation-research.

    It is nice there are tools that help litigation teams get a whiff of the data without having to fully process significant numbers of PSTs (a common type of mailbox archive file) or restore stacks of backup tapes. Integreon uses tools such as Index Engines (i.e. Advanced Tape Discovery) and Clearwell (i.e. First Line Analysis), but these are only the tools deployed as part of a comprehensive, documented ECA process.

    Simply put, discovery related ECA is all about scope. The goal of this “assessment” or “analysis” is to make an educated prediction as to how much data should be preserved, collected and processed; how much the full discovery effort might cost; and benefits and risks to the client in a variety of discovery scenarios. If the ECA effort is effective, the litigation team will be able to put a relative value on the litigation, prepare for the meet and confer or settlement conference, and correctly target its collection efforts to the truly, potentially responsive custodians and data stores.

    Based on a review of interview memoranda and data maps, attorneys should also work with in-house specialists or outside consultants to analyze representative samples of data to understand and document data types, thread topics, participant interaction, timelines, etc. The team can run searches on this data to attempt to extrapolate the amount of information which may be potentially responsive and that will eventually need to be sent into review.

    After this phase, which is aided by e-discovery applications but is certainly not a “magic” turn-key process, the team should be able to formulate an initial strategy. If formal discovery is called for, they should be able to make an informed decision as to what to collect. Helpful ECA should allow the team to collect less data overall, and produce more responsively.

    Again, ECA is a human process. One hundred custodians dumped into an ECA tool will not miraculously percolate a case strategy, and could be an even bigger waste if the case might be won by collecting only twenty custodians. If the litigation team hasn’t done its homework, then no ECA tool in the world will be helpful. It will be like that All-in-One power tool that just collects dust in the basement, or that blender that is supposed to delicately crush ice but instead makes margarita soup.

    Perhaps the persistent underlying distaste for e-discovery is part of the reason that some attorneys look for a magic ECA tool to make all their troubles go away. The Socha-Gelbmann survey had an interesting comment on this:

    “As one survey participant put it, ‘electronic discovery is viewed as something you have to do, rather than something that is vital to learning about the case.’ Fortunately, some organizations understand this imperative and have been developing technologies and techniques to help electronic discovery practitioners craft and tell a persuasive tale.”

    I reiterate that true early case assessment isn’t primarily about e-discovery. It’s about litigation tasks such as interviewing potential custodians and witnesses. I often hear attorneys complain that document review and production management “aren’t why I went to law school”, and yet I hear almost as often that many of these same attorneys don’t bother to draft or review interview memoranda. I have also experienced litigation teams that don’t even want to look at evidence until it’s been pared down by review and production.

    Perhaps the mountain of electronically stored information (ESI) is so daunting that attorneys don’t think they can tackle it early in the process. I believe that litigators will not regain their confident management of the entire discovery process until they are extensively schooled in e-discovery management. The 2009 Socha-Gelbmann survey results do show that education is the weakest link in the e-discovery industry today.

    A Need for ESI Professionals

    If litigators are beginning to agree that e-discovery is really just part of discovery, then all litigators will have to have some level of comfort with e-discovery management — from Information Management at the far left of the EDRM framework through Presentation. No litigator, or even an attorney in another practice area, should be truly free from the responsibility of attaining basic competence in this area. However, this does not mean that the industry doesn’t need specialists. I may be a real home DIY-er but I still hire a plumber or electrician to do the professional work.

    Effective participation in the management and processing of ESI requires a similar level of specialization. The Socha-Gelbmann survey respondents decried the lack of good project managers and litigators who are able to participate fully in cases that involve ESI.

    “[M]any participants estimated that no more than 100 to 200 lawyers in the entire country [USA] really get electronic discovery.”

    This is especially problematic for law firms and corporate legal departments that are seeking to recruit members to an e-discovery team or practice group. As mentioned previously, corporations are hiring full-time ESI and litigation support personnel.  According to the survey, law firms are doing likewise:

    “Law firms, for whom the move in‐house means taking on activities previously delegated to providers, hope to retain relevance. Increasingly they feel the need to replace [the] dwindling volume of large case review projects with new electronic discovery revenue streams.”

    To meet the demand, new ESI professionals will need to be “created” by the e-discovery community. Early and on-going ESI education — in law schools, firms and corporate legal departments for attorneys, paralegals and litigation support professionals — should be a priority for 2010 and 2011. The curricula should include case law, technology, and project management training. A recent positive sign is that law schools are indeed beginning to offer classes in ESI; note Ralph Losey’s law school lectures available via his blog.

    Industry organizations are also stepping in with certification and training programs. For example, the Organization of Legal Professionals (OLP) and the Association of Certified E-Discovery Specialists (ACEDS) are both offering online training courses.

    However ESI program creation cannot be limited to education and mentoring. ESI competency needs to be a prerequisite for advancement. Conversely, don’t sideline ESI attorneys as “nerds” and push them off of the partner track — a fear I’ve heard articulated more than once from junior associates. Another issue is the time training can take away from reaching billable quotas. Associates should be rewarded for updating their skills, not penalized.

    Fernando M. Pinguelo, Esq., of Norris McLaughlin & Marcus, P.A. told me, recently, that his e-discovery class at Seton Hall Law School is one of about a dozen or so such courses dedicated solely to e-discovery taught in US law schools. His class members maintain a blog, www.eLLblog.com, as part of their course work which seems like a great way for law students to encourage their peers to sharpen their skills.

    If only 100-200 litigators in the USA “get it,” then more attorneys should be availing themselves of the services of a qualified ESI consultant. It is no sin to admit you’re not a techie; rather it’s a sign of foresight to bring in the right kind of technical assistance. Ralph Losey’s blog post from January 12th makes the case that hiring a consultant can in fact be a sign of competence, rather than weakness. Similarly, a recent report of recommendations for changing how e-discovery is handled in New York State Courts states that:

    “Court rules should be amended to require that counsel appearing at the PC possess sufficient knowledge about client technology systems to competently discuss them with the court and opposing counsel; counsel may, as appropriate, associate themselves with and bring client representatives or outside experts with knowledge of the issues.”

    Clearly, there is much credence to supporting e-discovery educational opportunities and bringing in ESI professionals in order to ensure that an efficient, accurate, and defensible process is conducted.

    In the third and final post of this e-discovery blog series, I will next discuss another trend reported in the 2009 Socha-Gelbmann survey: Data Analytics.


    One Response to “Early Case Assessment – The Emperor Has No Clothes”
    1. Chuck Kellner says:

      I think this is a perfect analysis, of both the market and the recommended approach. Keep it going!