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What is True “Early Case Assessment”?

By Matthew Nelson

Fresh off the heels of another Legal Tech New York (LTNY) event in early February, it remains clear that the promise of eDiscovery fortune continues to lure more and more companies to the table to claim their fair share of the feast.

Working in the legal technology space for over a decade as a lawyer and eDiscovery consultant, I like to think I know most of the eDiscovery “players,” but the emergence of countless new companies, partnerships, and technologies would probably leave the head of even the most seasoned eDiscovery veteran spinning when trying to figure out who’s who in the eDiscovery technology zoo.

Slogging through the LTNY vendor exhibition hall past hundreds of eDiscovery vendors left me feeling dazed by a roller coaster of emotions. I asked myself if it was normal to feel enlightened, confused, annoyed and sometimes downright scared by aggressive marketing after only a brief waltz through eDiscovery land. Should I be worried about feeling a bit overwhelmed or was everyone else just as confused by all the hype? Then it hit me like a ton of bricks: “What the heck is ECA?”

Similar to many other Legal Tech 2010 marketing buzz phrases, overuse of the term “ECA” is a poignant example of why discerning the truth about eDiscovery technology is so difficult for those attending legal tech and those tasked with buying eDiscovery solutions for their organizations. Early Case Assessment (ECA) is one of those nebulous terms like “compliance” or “information governance” that sounds really cool so the term ends up in marketing brochures and is incorporated into vendor sales pitches in an effort to remain competitive.

Sometimes the claims are legitimate and sometimes they are not, but attempting to discern the differences between competing technologies and to separate what is real from over zealous marketing is a challenge that often causes buyers to make expensive mistakes.

My moment of clarity left me feeling better about my confusion, but the question still remained:

“What the heck is ECA?”

The ECA concept is simple. eDiscovery technology can be utilized to help organizations “assess” the merit of each new “case” at an “early” stage before incurring extremely expensive collection, culling, processing, outside attorney review, and other eDiscovery fees.

“Hey, that sounds great. What’s the problem?”

The problem is that many vendors use the term ECA to describe their technology solutions even though their solutions do not allow for true early case assessment.

ECA technology seeks to limit the time and expense associated with traditional approaches to eDiscovery that begin when an organization asks employees or a vendor to manually copy data from servers and workstations in response to an eDiscovery request.

The collected data is then typically sent to 3rd party vendors or law firms for further filtering and processing. Once processed, the remaining data is often hosted by the same vendor so attorneys can search, review, and classify the remaining files for privilege and responsiveness before producing files to the requesting party.

The entire process could take several weeks or months for each new request and the vendors and law firms typically charge big bucks for processing, de-duplicating, hosting, converting, reviewing, numbering, and exporting files for production which explains why eDiscovery is a billion dollar industry. The rule of thumb is simple:

The more data sent to 3rd party eDiscovery providers and outside law firms the higher the eDiscovery costs.

The term ECA began gaining traction a few years ago when technologies evolved to allow organizations to begin the search, review, and classification of files before requiring the files to be fully processed. This type of technology provided the dual advantages of decreasing processing costs while allowing a peek at the data “earlier” in the case before costs for processing files that clearly were not relevant had already been incurred.

Until recently, this technology truly could be considered ECA because it enabled customers to evaluate files before first waiting weeks or months to have all the data processed.

A dirty little secret is that utilizing these kinds of tools still requires the data that is shipped off site to undergo some limited processing so that the data can be loaded into the vendor’s ECA technology solution.

Although these tools provide some ECA capability, the collection and copying of data for every single eDiscovery request still takes time and costs a lot of money.

“Sounds great, how can I buy it?”

Not so fast. The good news is that ECA technology has moved further up the river of eDiscovery expenses making what was once thought of as “Early Case Assessment” as - well, not so early. Modern ECA technology places an eDiscovery solution inside the customer’s firewall to allow the organization to search across its environment for relevant files at no additional cost.

What does that mean? It means the customer pays a fixed price to own the solution that can be used for every matter instead of paying 3rd party vendors large sums of money for every new eDiscovery request. The difference between today’s real ECA solutions and old ECA solutions and 3rd party vendor pricing models is very significant:

It’s like buying a car you can drive until the wheels fall off instead of being forced to buy a new car every time you turn on the ignition, further being forced to pay an additional fee for every mile driven (as well as some fees you probably did not anticipate), and then relinquishing the car you just paid for at the end of every trip.

The cost of buying and owning these new ECA technology solutions is often comparable to the cost of a hiring a 3rd party vendor for a single matter so the return on investment can be very fast. Every time there is a new case, the customer (think attorney) can simply open up her computer and search across the organization’s laptops, desktops and servers to truly begin “assessing” the new “case” within minutes without first waiting for employee data to be copied and shipped to a vendor for processing. Now that’s truly early.

If the customer isn’t lucky enough to find the “smoking gun” files that lead to quick resolution of the case, they at least can start identifying the key employees, documents, and issues quickly to gain an edge over the opposing party. If necessary, the same solution can then be used to apply a litigation hold for preservation purposes by simply copying (collecting) search results to a secure storage device that essentially serves as a rock solid evidence locker.

This technology represents a significant shift from traditional manual evidence collection to an automated data collection process coordinated by an employee from a single computer. No more calling the IT department, expensive vendors, or nervous employees who have normal day jobs to copy and preserve files in a way that often leads to increased risk of spoliation in the form of missing or deleted files and changing metadata.

The litigation hold data pertaining to a particular case can then be further searched and culled to only the most relevant files after the meet and confer conference by excluding unwanted file types, custodians, date ranges, etc. by simply clicking a box. The legal user then classifies the remaining files as responsive, non responsive, or privileged using the same interface with a click of the mouse.

Organizations prefer this approach for several reasons. First, true early case assessment can be performed for each new case within minutes instead of weeks or months. Second, large amounts of potentially confidential data need not be shipped off site for expensive and time consuming processing. Thirdly, a single eDiscovery technology solution is used through the entire eDiscovery lifecycle with chain of custody reports generated automatically for legal defensibility.

And last but not least, the customer owns the solution and need not pay expensive 3rd party vendor costs for every new matter.

Don’t let overwhelming marketing hype lead to an uneducated decision about technology. Dig deep to make sure you understand the true meaning of over used buzz phrases and if you’re still confused, call someone you trust to help you navigate the constantly shifting eDiscovery technology landscape.

About the author: Matthew Nelson is an attorney and Legal Consultant in EMC’s Global eDiscovery & Compliance practice where he leverages his legal and technology experience to help organizations address challenges related to e-discovery, compliance, and records management. He can be reached by email at nelson_matthew@emc.com.

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