If you build a house with a weak foundation, the building is sure to fall apart. The same holds true for e-discovery—if you don’t pay attention to the early stages and properly calculate from the beginning, you’re in for a world of pain down the line.
From information management to identification, preservation and collection, the left side of the industry standard Electronic Discovery Reference Model (EDRM) is truly the foundation of the electronic discovery process. Corporations face this challenge in litigation on a regular basis, and if the house falls down, the finger-pointing will begin.
Picture the EDRM turned 90 degrees to the left, so it stacks up vertically. From that angle, the data makeup of a legal matter’s possibly relevant Electronically Stored Information (ESI) forms the bedrock for successful data preservation, collection, analysis and review strategy. At this nascent stage, Early Data Assessment becomes important.
What is Early Data Assessment?
Early Data Assessment (EDA) has evolved recently as an integral part of the EDRM far-left side workflow. EDA involves preliminary evaluations of data early in the life of a matter. It can include examining the technology and data sources possibly involved in the specific legal matter, not to mention the metadata about that ESI.
The idea behind EDA is to determine the types of data to be potentially preserved, gathered and analyzed, maybe to identify gaps or overlaps in the data, and to begin developing a variety of lists that can be used to help scope the project. EDA also can entail working with the ESI to better understand its substantive content, construct and evaluate potential story lines, craft discovery strategies, and develop e-discovery cost estimates and litigation budgets.
The EDA process is not to be confused with Early Case Assessment which typically relates to assessing legal liability. By contrast, Early Case Assessment usually happens at the onset of a matter as inside or outside counsel assess the viability of a matter, compare it against similar past matters, determine whether insurance coverage may come into play, make decisions about what counsel to retain, and engage in other similar activities focusing on evaluating the entire case early.
EDA can be very effective for saving time and money if it occurs early in the life of a matter, much like building a house right sure beats fixing a disastrous money pit afterward. By taking a proactive approach and creating a profile (i.e., a high-level snapshot) of the types of data that may be collected, less time and money is subsequently spent for the legal matter when time is of the essence and uninformed decisions are dangerous and costly.
Additionally, a successful EDA shows you an overview of all your electronic evidence, thereby reducing the chance for surprise at the eleventh hour. Corporations and their outside counsel that skip left side steps like EDA and go right to the document review phase are bound to be unhappily surprised. Sometimes data that should have been deleted have not been, or other times, data that should have been preserved have been inadvertently – or deliberately -deleted.
Electronic data can be the noose that hangs lawyers because it is silent evidence that can be invisible until suddenly exposed. Just look at the recent example of the News of the World hacking scandal to see how a great tower of a company can be brought to its knees by a few incriminating emails.
Thus, strategically speaking, it is both best to get your house cleaned up at the outset of litigation, or even before litigation occurs, if possible.
Corporate law departments working with outside counsel can have two overriding goals with respect to EDA:
1. Get the (big) picture on electronic data
One of the biggest problems in predicting e-discovery costs is because of a lack of knowledge of “the big picture” about the data costs throughout the EDRM process. Early knowledge of the types or counts of electronic files and formats makes costs easier to estimate. Because readily-available and cost-effective EDA tools and methods are cropping up to help illuminate the dark and murky areas of ESI identification and collection, parties and counsel can plan accordingly, whether the decision is to settle the case or move forward with guns blazing.
2. Precision is key
When legal teams obtain accurate information about potentially relevant ESI at the outset and do so without expending too much energy or expense, corporations can expect predictability in e-discovery costs. For example, knowing early on that there are many large spreadsheets or hundreds of thousands of email messages, counsel can choose the appropriate technologies to crunch down the dataset and let this inform scheduling and resource planning.
Simply put, thorough EDA processes give lawyers insight and access to get to those crucial “silver bullet” documents faster, more effectively and with substantially less time and money spent. Because lawyers are constantly looking for needles in haystacks, searching for the critical hundreds of relevant documents among the less responsive thousands or millions of documents, the more surgical the collections and the more effective the data analysis performed before the heavy-lifting lawyering begins, the better for modern legal matters.
Leveraging EDA tools can provide solid grounding for corporate litigation, creating a stable foundation for the future as counsel continues through the e-discovery process. Building your company’s case based on accurate knowledge and a clear picture of the whole process before outlaying too much money makes common sense. Using EDA techniques and tools will ensure that you have your house in order from the very beginning, so you won’t have to pick up the pieces later.