Electronic Discovery: Early Case Assessment

The exact definition of “Early Case Assessment” can mean different things to different people.

For some those in the technical area of electronic discovery it can mean sampling data, to others it can mean a quick pass over the data, to see what’s there – a first review.  For others it’s a method of using tools and technology to prod, poke, and manipulate the data to get the best out of it before going in full review platform.

For those on the legal side, early case assessment can mean just that. Looking at the data, and deciding if there is even case, and if there is what direction to go in.

Regardless of the definition, or where an individual sits within the e-discovery framework (consultant, vendor, lawyer, or client) the aim appears should be the same, reduce the costs and speed up the litigation processes.

Early case assessment is not entirely new thing, and has been discussed in relation to litigation, as far back as 1999 by Autonomy/Introspect. But back in 1999 the subject was not regularly discussed, only in recent years there has been a huge increase in the information about early cases assessment, with more and more tools coming onto the market.

These early case assessment tools are designed to allow a quick review of the data, to build up an overview of the data in the case, rather than a full detailed review and preparation for trial.

These tools may be seen as another marketing ploy, another tool to be bought.  This does not need to be the case. Whatever the tool, the true value of “Early Case Assessment” should lie with the client, not the vendor.

Wag the dog

Electronic Discovery, while a business, is not an end in itself; it is a method of assisting the lawyers reviewing data. It is important to keep sight of this function because, in large cases, it may appear to some clients that the tail is wagging the dog.

Some vendors are incredibly good at taking huge amounts of data, churning it up and spitting it out in to a review platform. Once a batch of data is in review the vendor can allow an army of paralegals/junior solicitors to plough through it until the review is completed. At which point more data is the released, or already waiting, to be reviewed.

It is a conveyor belt of data crunching and data review. The review team can appear to be just there to read what the electronic discovery team produce. The reviewers can just become part of the huge machine that is the electronic discovery process.

The business of reviews

It should be remembered by all those in the ED processing industry that solicitors and lawyers are not there simply to read what the ED company chose to put in front of them; rather the electronic discovery company is supposed to support them.

ED vendors and consultants should work with the lawyers to get them what they need to review.

What a difference a decade makes

A decade ago the law firms would be fighting with folders, bankers boxes, and leaver arch files as they conducted paper review. Fortunately, electronic discovery was pushed forward and junior solicitors can have a custodian’s mailbox delivered to their screen, through the wonders of review platforms, over night. This technology meant data could be de-duplicated, filtered, and keyword searched at a click of the button. It meant that the lawyer’s workload would be reduced. It was a magical time.

Now in 2009 Electronic Discovery firms are collecting and processing more data than ever before, and faster.  tens of thousands of files can be processed in a single day. Gradually, this speedy filtering and publishing of data for review is what law firms have come to expect and demand. The problem with this incredible speed is down to the law of unintended consequences:

E-discovery companies are now so fast that they can offer to collect more data than ever before. As they get more data they need to process data faster; so the cycle continues.  The net result is that more and more data is going to the reviewers, not less. Speed of processing does not mean increased reduction.

Working Example:

A vendor can collect 1 million emails from backup tapes, servers etc. Once this data has been collected it can be processed and made available to review in less than a week. If there is a 96.5% reduction in data sizes (through keyword searching, filtering, and de-duplication) that leaves around 35,000 emails to review. It would be rare to get such a huge cull of documents, but its a useful number to work with.

[For those thinking that 1 million emails is a ridiculous amount of data to collect, it is “only”around 30 GB of data, which will easily fit on a hard drive]

These 35,000 documents are the equivalent to (depending on who you believe) around 1 to 2 pickup trucks of paper. A law partner would think long and hard before sending a truck  to pickup that much data and deliver it to the law firm offices for review. In fact there could be structural problems about storing that volume of paper in one office, not to mention the manpower to move it let alone review it.

What this all boils down to is that 10 years ago it would require trucks, strong floors, and major decision to release 35,000 document to reviewers. Now this can be moved on a hard drive and done in a couple of days.

Due to the impressive technology available there can be, perhaps for all the right reasons, too much data processed and released into review. This swamps the reviewers, a reviewer can only read so fast.

Early Case Assessment

This is where early case assessment come into its own. Rather than loading all of the documents into a more expensive tool, such as RingTail, some or all of the data can be loaded quickly into an early case assessment tool, which are normally even faster to load into and cheaper per GB.

Within the early case assessment platform decisions can be made to cull out data sets, keywords, custodians, or media. Keywords can be tested and refined, custodians can be sampled and reviewed for relevance.

Once the data has been  through the early case assessment process the most relevant data can then be moved into a full review platform/process. This will make the process faster and cheaper, and allow decisions to be made early on in the case.

Early Case Assessment does not need to be a specific tool, it can be a methodlogy within an existing tool. Its is really an approach to data, rather than a specific tool or application.


One Response to “Electronic Discovery: Early Case Assessment”

  1. Electronic Discovery: Early Case Assessment v Review Platforms « Where is Your Data? Says:

    […] Early case assessment is the new buzzword in town. Last year it was concept searching, previously it has been near de-duping, long before that it was simply de-duplication. […]

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