For a number of years, many courts have been adopting “fast track” procedures, mandating that cases go to trial within one year of filing a lawsuit. See, e.g., Cal. Ct. Rules 208, 209 (employment litigation). For example, in the Eastern District of Texas, Judge Ward’s local rules have laid out strict guidelines and provide for early discovery deadlines. These early deadlines push cases forward and force parties to spend time, effort and money to quickly produce potentially relevant electronically stored information (ESI) for litigation. See, Appendix M Patent Rules, 3-3, 3-4 April 21, 2011.
Combine this with Gartner’s estimates that data will grow 800 percent over the next five years and 80 percent of that data will be unstructured, provides counsel with a significant early case assessment (ECA) challenge. It’s unstructured ESI that is most difficult to deal with because the data is stored on laptops, desktops and servers, and it is very difficult to manually search and collect that data without altering the metadata (see my July 29 column for metadata guidelines). Effective ECA is the solution for this dilemma of needing to quickly assess and understand the vast and growing amount of data for litigation.
The alternatives to indexing include creating full-disk images or outsourcing data collection to a service provider. Conducting a timely ECA using these approaches often is not possible because they require collection to be completed and analyzed for relevant data before case assessment can be completed. These processes increasingly take months to accomplish and are often too expensive and can’t give the legal team any insight into the data before their first meeting with opposing counsel.
Forensic-based approaches to e-discovery are another popular alternative that provides the ability to conduct advanced searches for relevant ESI before collection and thus allows the team to be able to conduct true early case assessment. This capability gives them a strategic advantage by helping them determine how to best negotiate search terms, date and time criteria, file types and metadata within hours of being notified about a lawsuit and before they start collecting data. This way, the lawyers have a preview of the available evidence and can analyze the case’s merits, develop a strategy and are better prepared to discuss and negotiate search criteria with opposing counsel during the meet and confer process.