E-discovery: The dying art of early case assessment

The machines are winning, and your company may be the loser

This column is the first in a series addressing the challenges of early case assessment in the era of e-discovery. In this column, I attempt to define the problem; in the columns to follow I will offer some suggestions for how in-house counsel should work with the company’s trial counsel in the early stages of litigation to ensure that e-discovery issues do not become an impediment to effective strategic analysis.

Before the term was co-opted by e-discovery vendors, early case assessment was a concept that captured the essence of the trial lawyer’s craft, quickly analyzing and synthesizing evidence from multiple sources, collaborating with the client to develop an initial case strategy and formulating a preliminary discovery and litigation plan that will advance that strategy on the road to a successful resolution. In short, early case assessment encompassed the full skill set that an experienced litigator draws upon to seize the initiative from her adversary and develop a proactive strategy for winning the case.

Unfortunately, the high stakes of e-discovery have transformed early case assessment into a data management exercise. The substantial expense of preservation, collection and review in the e-discovery era and the risk of serious sanctions for any significant error in this process have shifted the focus from case assessment to data assessment, a change that threatens to subvert the essential role of trial counsel in early strategic analysis and planning. In a very real sense, trial counsel are now competing with both e-discovery vendors and specialized e-discovery counsel for the client’s time and resources in the early stages of litigation. This tension presents a significant issue that can undermine the quality of your company’s representation and likelihood of success in the litigation. 

 Almost every major e-discovery vendor now includes early case assessment tools as part of its product offerings and services. Some of these products provide powerful analytical tools that can enhance more traditional methods of early case assessment. However, the primary focus of most of these products is project management, not developing litigation strategy, and the data these tools provide  can become a distraction from learning the substantive issues in the case. This problem can be magnified by the increasing role of specialized “e-discovery counsel” who are not part of the trial team and whose sole focus is managing the litigation hold and discovery process. Because e-discovery counsel are typically from the same firm as your company’s trial counsel, you may reasonably expect that your e-discovery counsel understands trial counsel’s litigation strategy and is working toward the same goals. In some cases, however, e-discovery counsel may be little more than project managers whose paramount goal is protecting the firm from liability for e-discovery malpractice.

 In-house counsel may unwittingly contribute to the problem by diverting attention and resources away from substantive case evaluation. One of the many unfortunate consequences of both the spate of e-discovery sanctions cases and the expense of electronic data preservation is that many in-house counsel are now almost obsessively concerned with litigation hold issues. Accordingly, at the commencement of litigation, they may focus on the issues being addressed by e-discovery counsel and e-discovery vendors. Overworked in-house lawyers only have a limited amount of time to devote to any single litigation matter, and they may spend so much time talking with e-discovery counsel that there is no time left for trial counsel. What should be the most pressing issue at hand—developing a strategy to win the case—is lost in a discussion about data management.

 Cases are won by identifying clear litigation objectives and then building a litigation plan that is focused on achieving those goals. When early case assessment instead becomes early data assessment, your company’s litigation team has put the cart before the horse, and despite a flurry of activity, your company’s case will be going nowhere. 

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