Much of my time is spent advising and performing activities concerned with preservation and Early Case Assessment (“ECA“). I like to do them both together, at the beginning of a case, with initial priority put on starting the preservation process. Yes, process. There is a lot more to it than just sending out a notice, as Judge Scheindlin reminded us all in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 685 F. Supp. 2d 456 (S.D.N.Y. Jan. 15, 2010 as amended May 28, 2010).
I was challenged by a partner the other day to come up with a simple two paragraph definition of the electronic discovery aspects of ECA. I thought it might be helpful to share my effort, written quickly, just like ECA. There is a lot of confusion and vendor hype surrounding the term these days. So the view of a lawyer actually practicing law in the field is needed. I don’t pretend my definition of ECA for e-discovery is the last word, far from it. This definition describes, to some extent, my personal techniques (such as the use of native views to help get inside the head of a witness), and every attorney tends to have their own unique approaches. This necessarily idiosyncratic definition is shared in the hope that it will start a reasoned dialogue on the subject by those of us whose professional careers are devoted to e-discovery; those of us who actually do ECA most every day, and not just sell software or consult about it.
Same Old, Same Old
Although the ECA process has changed considerably over the last few years, it is nothing new. I have been assessing a case at its commencement my whole career. Every trial attorney does. Review of documents has always been an essential part of most early case assessments. Nowadays, however, the document review is much more complicated, considering the volume of documents has exploded a million-fold and they tend to throw themselves away! In the old days of the 1980s a big document case was a warehouse of documents, now it’s the whole Library of Congress. See i.e.: Lehman Brothers Examiner’s Report.
Yes, the document evaluation segment of ECA has changed dramatically in the last thirty years, although the rest of the components of ECA, such as study of the law and witness interviews is pretty much the same. Now, of course, you have to also ask witnesses about their ESI and preservation compliance, something rarely touched on years ago in the pre-Zubulake world. But that is not really a big change in witness interviews. You still focus on the merits of the case, what they know, the five Ws (who, what, when, where, why). Most importantly, the fundamental goals of real ECA remains the same: how good a case do you have? How hard will it be to prove? And every client’s favorite, the one that attorneys are adept at avoiding, how much will it cost? Depends.
ECA Defined
So here is my response to a question asked by one of my favorite trial lawyers:
You asked for my one or two paragraph summary of EARLY CASE ASSESSMENT (“ECA”) in the context of electronic discovery. That and preservation is what we are currently doing. It would be easier to write a 5,000 word essay, but here goes:
ECA is a type of triage process for accelerated e-discovery at the beginning of a case. It focuses on the discovery/location, analysis, and review of electronic documents (ESI) that are highly relevant. The documents so located are typically referred to as the “low hanging fruit” and this is not intended to be a complete search and review. The targeted hot documents found in the ECA process allow trial attorneys and parties to begin to immediately evaluate the merits of the case and serve as initial guides to subsequent case handling, including witness interviews and other investigations. The simply relevant and highly relevant documents located in an expedited ECA allow e-discovery specialists to:
1) guide ongoing ESI identification, preservation and collection efforts;
2) refine initial search strategies;
3) begin to develop final review and production strategies; and significantly;
4) to eliminate, or cull out, large segments of ESI collected that is unlikely to have relevant information and is thus removed from further review;
5) refine initial projections and estimates of e-discovery costs, especially review costs, and formulate realistic budgets, and proportional scope strategy (the last item I like to call Bottom Line Driven search and review under 26(b)(2)(C)).
The highly relevant documents are located through various expedited search and review procedures, including:
1) manual review with judgmental sampling and random sampling using native software, i.e. – review of a custodian’s email through their PST file looking at their email collection the same way they see it;
2) evaluating the mental set of custodians by the native sampling;
3) testing and refinement of keywords;
4) utilization of special software designed to facilitate and enhance the above processes and include new search techniques available in the particular software, generally known as concept search methods. The concept search functions in most software includes:
a) visualization of witness and ESI relationships;
b) search of concepts related to key words and ideas;
c) location of documents with a percentage of similarity to documents identified by you as relevant, usually on a sliding scale by percentage; and,
d) various clusters of documents that the software recognizes and then presents for determination in bulk as to relevance (for example, you identify one representative type of document as irrelevant, and the software automatically marks all similar document as irrelevant, such as sports communications).
The ECA allows for the intelligent and legally defensible culling of most of the ESI in a collection, typically 90%, including processing culling such as deduplication and deNISTing. (My personal goal in all cases is to always cull out 98% in a legally defensible manner, not just the industry standard of 90%, and I believe this is attainable in many cases.) The ESI that is not culled out by ECA, or processing, is then passed through for actual full review, not just partial judgmental and random sampling review. Documents specifically identified as highly relevant or relevant in ECA will retain that tagging, but will be subject to further review for possible privilege, confidentiality, or sometimes limited issue tagging.
Again, this was written fairly fast (for me), less than an hour, and is not intended to be the end-all. Let’s hear what you have to say about it? Help me to clear up all of the hype now surrounding the hot term of the year – ECA.
ECA Oriented Software
Obviously there is more to doing e-discovery ECA than using software, but it does make the ECA process easier. I have been using a few software tools lately to try to improve my ECA efforts, including EMC²’s Kazeon and Kroll’s Advance View. I am acquainted with several others, including Clearwell’s Intelligence Platform, and FTI’s Ringtail QuickCull. Many other vendors offer ECA software tools and they are all worth checking out. If you have a favorite that is working for you, please let me know.
EMC²
By the way, EMC² is a really cool technology company, and I for one am glad they bought Kazeon and are making rapid strides at improving it. But wouldn’t it have made more sense for them to buy Relativity?
I told this joke to some EMC² executives and tech bloggers last week in New York and got a polite laugh. (Most had never heard of Relativity as a software review tool, only as a physics theory, so I had to kind of spell it out.) EMC² had invited me to speak at their annual information management tech-writers conference. Gabe Acevedo and I were the only lawyers in attendance. The rest were experts and writers on the subject of ECM – Enterprise Content Management.
In my talk I pointed out that the failure of enterprises to know where there data is and produce it when needed, is having a strong negative impact on the legal profession, driving up the cost of litigation. I gave them some insight, I hope, as to why EMC² bought Kazeon.
The job of the techs, bloggers, consultants, and EMC² execs in attendance is to help companies manage their information. Apparently not enough companies are listening to them, especially in the area of management of informal communications, emails, texts, and the like, which I explained is our biggest problem in e-discovery. Of course, it is not all their fault, the exponential growth in volume of ESI makes their job of information management a near mission-impossible. Every time they think they have it down, the volume doubles and the types of ESI used morphs tenfold. Still, high-tech companies like EMC² are working on it. They may well make our life easier someday by getting enterprises to better manage all of their information, including all communications.
It was fascinating event, primarily because there were so few lawyers and I had to really stretch to understand what they were saying. Much of what they were saying seemed very mysterious. These information management types have twice as many acronyms as we do in the legal profession, and everybody else in the room had been doing ECM 15-20 years. Fortunately, I had a good Internet connection and could Google all of their slang.
I got my revenge when it was my turn to speak and I threw a few acronyms back at them, like ESI, ECA, and 26(b)(2)(C). A lawyer showing Did You Know music videos, using a Mac and KeyNote software, and talking about case law – that was a real mystery to them too. The knowledge of this group about e-discovery and the law was shockingly low. Where else can you speak about e-discovery and no one in the room (Gabe excluded) has ever heard of Zubulake? Yes, it’s true. They had not heard of Judge Scheindlin either. Nor were they familiar with the Supreme Court’s recent decision in Quon. But they were taking good notes and sensed an opportunity to sell their services to companies burdened by e-discovery.
We lawyers really need to interact with these information management professionals more often. It is step one in the EDRM you know. (They had never heard of the EDRM either.) As Albert Einstein said: “We can’t solve problems by using the same kind of thinking we used when we created them.”
We have a lot to learn from information management professionals, and obviously they have a lot to learn from us too. They had heard of e-discovery, of course, but many seemed to think it was a problem that could be easily solved with software. That is what IT people always think. If I only had a nickel. Anyway, despite their refreshing naiveté concerning the law, it was a good group – very smart, outspoken, and they met my main test by laughing at all my jokes. Who knows, they may even invite me back.
I hope to venture out of my little e-discovery niche more often and talk to more non-law groups. It is good to encounter the mysterious worlds of technology writers, information management consultants, and other tech cliques. Someday I may even enter the strange and mysterious world of information science academia. It is good to encounter the mysterious from time to time. As Albert Einstein said:
The most beautiful thing we can experience is the mysterious. It is the source of all art and science. He to whom this emotion is a stranger, who can no longer pause to wonder and stand rapt in awe, is as good as dead; his eyes are closed.
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Ralph – My guess is that you spend relatively little time on early “CASE” assessment, and a lot of time on early “DATA” assessment. Real early case assessment in something inside counsel, and to a lesser extent outside counsel, have been doing for as long as lawyers have had clients. It is concerned with issues such as whether this a nuisance value case, whether to handle a matter in-house or send it to outside counsel, whether there is insurance coverage and if so how much, and so on. By and large, these issues have little or nothing to do with electronically stored information as we think of it in connection with electronic discovery.
Early DATA assessment – Now that is what you are talking about, and that is, essentially, the EDRM process writ small.
George – Your point is, of course, correct, which is why I carefully said in the article that this is the e-discovery aspects of ECA. I also said exactly what you say re the whole case assessment. I was lucky enough to do whole case ECA for 26 years as a practicing attorney before becoming a e-discovery only attorney. Please read my “Same Old, Same Old” section of the article. I suspect you missed that, no doubt in a hurry to do an early assessment of my definition.
If ECA for e-discovery, which you call EDA, is yet another EDRM process writ small, what isn’t? Reminds me of fractals. 🙂
Ralph – You were great at the conference. Many of the attendees remarked at how good you presentation was. Good to see you again as always.
Ralph, wanted to echo Gabe’s thoughts. It was a great presentation. I do want to say one thing in defense of my fellow Content Management experts. We are sometimes familiar with the outcome of an eDiscovery case, but it is rare that we know the names of the cases.
Our focus is on capabilities and the core requirements, but not on all of the legal cases that determine those requirements. The things we try to provide are:
– Easy capture of all content, emails+, that needs to be retained.
– Easy categorization and indexing of content so it is readily retrieved and classified when needed.
– Easy way to implement holds on all content.
– Complete audit trails of everything.
– User-proofing. While it is inappropriate to discuss intentional deletes, we have to make sure that their are no accidents, which has the same effect.
In a good system, the specific rules can be controlled by the General Counsel, or other business user, without a massive training class. We need to make sure that we work together to achieve this.
-Laurence Hart
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