eDiscovery vendors and analysts - including myself - are coming out with a raft of product and commentary about Early Case Assessment (ECA). However, we might be assuming a lawyerly acceptance of ECA that just isn't there.
ECA is the ability to search and analyze discovered data early in the litigation process. Traditional ECA has existed for some time as first-pass review. The difference now is that traditional first-pass does not occur until the data has been collected and processed into the review platform, which can be quite late in the eDiscovery process. Newer incarnations of ECA happen much earlier to allow attorneys to grasp the merits of a case from the beginning. ECA begins as soon as collection starts and quickly gives attorneys a general but accurate view of what relevant data looks like. This helps them make some early strategic decisions around settlement offers and/or case strategies for moving forward. It's a great way to bring an informed viewpoint into the meet-and-confer.
But here's the rub: attorneys have already spent money on review platforms and are familiar with using them to do first-pass review. A new approach to ECA requires investing in an additional ECA product. Companies might be able to purchase ECA as an option from their review platform maker, but it's not free. The financial investment stops many attorneys from purchasing ECA, even when it results in cost savings over the life of the litigation. If attorneys understand that it will save them time and money, won't they buy it? Probably - but that's a big "if."
The key is educating both corporate and law firm attorneys on the benefits of ECA, including better case strategy, more effective meet-and-confer, reduced review volume, more effective search, and a much shortened eDiscovery process. There is very little downside here.
I urge companies like Clearwell, Stratify, EMC Kazeon, CaseCentral and others to build their cases for ECA.Christine Taylor, an analyst with The Taneja Group, has more than a decade of experience in covering the IT and communications industries. She has written extensively on the role of technology in e-discovery, compliance and governance, and information management. View Full Bio