While working on a recent false advertising lawsuit for a Fortune 500 client, law firm Holme Roberts & Owen had less than two weeks to gather data for e-discovery and determine case strategy.
The case involved thousands of documents. Relying on the standard e-discovery collection, processing and review process would have been too time consuming. Instead, the law firm turned to advanced analytical tools to perform an early case assessment.
The firm contracted Clearwell Systems Inc., one of a number of vendors that provide early case assessment (ECA) solutions. Using advanced search, filter and culling technologies, the team of one associate and one paralegal quickly weeded out irrelevant data. In less than a week, Holme Roberts & Owen was able to make sense of the key evidence and quickly conclude the matter.
Amendments to the Federal Rules of Civil Procedure took effect in December 2006, and since then ECA has been a critical component of the litigation process. In-house counsel are now charged with the responsibility of understanding their corpus of data to comply with the rule's mandatory meet-and-confer requirements. In addition, ECA can help attorneys estimate e-discovery costs and guide case strategy.
"The ECA requirement for civil cases is relatively new, so many attorneys are still trying to figure out how to do it," says Brian Dykstra, owner and senior partner of Jones Dykstra & Associates, a litigation support and e-discovery consultancy. "Relying on technology can help make ECA faster and easier."
Trial vs. Settling
ECA is all about strategizing. By understanding the information a company has internally, the legal team can make a sound judgment as to how to proceed with the case, especially if there is a question of whether to continue toward a costly trial or settle outright.
"ECA is really a risk assessment," says Jack Halprin, director of e-discovery at Autonomy Corp., a provider of e-discovery technologies, including ECA solutions. "Is there a smoking gun document; does the evidence point to liability; is this an isolated event or a pattern? You want to be able to make a judgment call."
Being able to answer these questions before going to trial can save a company thousands, if not millions, of dollars. For example, if in-house counsel were able to determine--based on the facts of a recently filed suit--that its clients likely were liable for the alleged actions, the lawyers could then recommend the company settle rather than stage a costly, losing fight in court.
In addition, ECA can help counsel determine if executing the e-discovery process might make a case more expensive to pursue than settling.
"ECA sometimes reveals cost parameters, including e-discovery, which will indicate a fixed cost for the litigation that has to be taken into account in connection with either what you hope to gain from going to trial or what settlement options are out there and appropriate," says Thomas E. Birsic, the litigation practice area leader at K&L Gates.
However, a company shouldn't settle outright just because e-discovery might pose a high, fixed cost. After performing the assessment, if counsel determine that the cost of conducting e-discovery is too high, they can then approach opposing counsel during the meet-and-confer conference and negotiate the parameters of e-discovery based on the information gained from the assessment, reducing their cost burden.
ECA software is often wrapped into more robust solutions--mainly collection, culling and processing tools. These solutions rely on a variety of methods to quickly scan a company's data repositories, from servers and e-mail archives to desktops and laptops. Some methods use a basic keyword search, others use contextual and concept searching, while others rely on intelligent analytics to slice and dice data in a variety of ways.
Guidance Software Inc., an e-discovery technology vendor, has as part of its collection tool a component that searches a limited number of employees' files to create a sampling of the overall corpus of data.
"Once the data is collected, we can run an assessment of the data to get a report in terms of what the data looks like in general, such as a breakdown by file types. Then we can determine what the strategies for the downstream elements of the e-discovery process, such as processing and culling, will be," says John Patzakis, chief strategy officer at Guidance.
Autonomy Corp.'s solution can perform an ECA prior to collection. Using a proprietary mathematical algorithm, this solution can intelligently clump together documents with shared topics and generate two- and three-dimensional visualizations of the data to help counsel better understand their data set early on.
"Once you have the data separated into concepts, you can analyze the concepts and get a view of what the data is saying to make an assessment about the case," Halprin says.
The tools available for conducting ECA aren't cheap, costing in the range of tens of thousands of dollars or more.
They are ideal for large organizations with an extensive body of internal data.
Still, if the company can afford it, ECA tools can end up paying for themselves by helping in-house counsel make an early determination whether to proceed and fight the case or settle before e-discovery and trial costs escalate. However, there is some time sensitivity to ECA, and when a case arises, in-house counsel need to use these tools sooner rather than later to reap their rewards.
"Before you want to gear up for litigation, if you can know what shape you are in, that can make a big impact on the posture, exposure and ability to settle the case," says Dean Gonsowski, vice president of e-discovery services at Clearwell. "But you must conduct early case assessment as early as possible, because if you wait until months after the case has been filed, you'll lose a lot of the benefits."