Technology: Early case assessment – What you don’t know can (and likely will) hurt you

The risks of not understanding your data are real.

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.

Having knowledge of this information helps in-house legal teams to quickly assess a case’s merits, costs and risks as soon as possible to make better and faster case decisions.

Since 2007, the Federal Rules of Civil Procedure have mandated discussions on scope of e-discovery in the early Rule 26(f) conferences for case planning purposes. The difficulty is that attorneys have been left to try to negotiate the scope of ESI preservation in a vacuum, i.e., with little to no knowledge of the potential scope and volume of relevant ESI that may exist for the case.  Traditionally, lawyers have been able to perform an assessment only after the ESI has been collected, processed and reviewed—a process that can take months. The vast majority of ECA technology solutions, with one notable exception, can assess the data only after it has been collected and/or indexed, or migrated to an enterprise content management (ECM) repository.

It’s important to note that index-based solutions need to create a directory of the corporate network. This directory functions like a card catalog of the data universe requiring storage (up to an additional 40 percent of your current data universe) and time to create. And that index must be updated on a regular basis.

Many e-discovery attorneys believe these indices are discoverable in litigation. If the index is discoverable, it could easily create a record of spoliation. For example, if there is a record of a relevant document in the index and you failed to produce the original document because it’s missing from your environment, your index could be used against you to prove a claim of spoliation.

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.

Key capabilities to look for in an effective ECA solution include the ability to:

  1. Gain insight and understanding of potential keywords, volumes of data and costs to eliminate the collection and processing of non-relevant data
  2. Test search criteria and analyze document responsiveness before data is collected
  3. Identify custodians with potentially relevant data that should get a legal hold notice
  4. Formulate a comprehensive case strategy and ensure business processes are minimally disrupted
  5. Identify potentially relevant data sources and get metrics on potentially relevant data versus total data volume
  6. Sample and test search criteria and privilege criteria before data is produced to opposing counsel

As a result, organizations with true early case assessment will have the ability to search, analyze and review ESI content to understand a case’s merits, identify responsive documents and further cull the dataset prior to attorney review allowing those organizations to minimize risk and save money.

The risks of not understanding your data are real. A recent lawsuit filed in the Superior Court of California, County of Los Angeles, alleges that a well-respected, national law firm and its document review attorneys recently produced 3,900 privileged and non-relevant documents to the federal government out of a total of 250,000 documents produced in litigation. This failure rate of 1.5 percent could have been easily avoided by having a true ECA capability minimizing the cost and risk of producing irrelevant or privileged data.

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