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ShareECA: Value Is In The Eye Of The Beholder
Posted by Christine Taylor on October 19, 2009
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.
Comment by Anonymous on October 19, 2009 1:49 PM
Hi Christine,
Excellent piece, and I certainly agree that ECA's intuitive nature doesn't automatically mean that counsel (inside and external) will take up the banner. Inertia generated by their traditional modus operandi (of waiting to spend money until absolutely necessary) will challenge many to spend the time/money/cycles early on in the process. But, as you wisely point out, the benefits are certainly there for those practitioners that do make the change.
See myth #4 in the blog if you???re so inclined.
http://www.clearwellsystems.com/e-discovery-blog/2009/08/25/electronic-discovery-mythbusters-debunking-common-myths-about-early-case-assessment-eca/
Best, Dean Gonsowski
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Comment by Rob Robinson on October 20, 2009 7:11 AM
Great coverage. I appreciate the comments - as well as Dean's follow up comments. At the recent Masters Conference there was some discussion on the use of ECA and how it needs to be carefully considered based on the "triggers it initiaties". I think these comments came up in Dean's speaking session - so will defer to him for any elaboration.
Again - appreciate the coverage of such a relevant topic - as the education you provide certainly helps both end users and vendors (such as Orange Legal Technologies) consider this area of interest.
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Comment by Rebecca Boucher on October 20, 2009 4:36 PM
Christine, your suggestion that ECA move up in the eDiscovery process, so that involved parties can understand what they have as quickly as possible is valuable. As you know, some eDiscovery tools have attempted to support ECA using a sampling process. They are limited to sampling because without a specific list of files and email requested by the legal teams you would need to sort though large volumes of data to truly understand what you have. Most discovery tools have limited processing capability. They are not designed for large scale collection and review, so sampling small subsets of the data to ???get a general idea of what exists??? is the best they can do. Index Engines on the other hand, scales to perform cost effective and efficient processing of all ESI early in the process. This solves the ECA challenge and allows you to be fully prepared for litigation.
Read more about how Index Engines supports ECA on our blog: http://www.indexengines.com/blog/
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