by Oliver Silva, Senior Litigation Technology Specialist, Bingham & McCutchen LLP
Early Case Assessment (ECA) has become the coolest thing to hit the litigation technology scene since concept searching. E-discovery vendors are jockeying for position to be the first to the finish line in the race for the most comprehensive appliance leveraging this technology. What’s the buzz with ECA?
ECA allows litigation support professionals, paralegals, and attorneys to gain greater insight into their document collections by interacting with the data prior to review. By implementing an e-discovery strategy utilizing ECA, case teams no longer need to use their best guess for relevant search terms. They become active participants in the search and culling process, which can be extremely advantageous when formulating effective search terms. Add to that arsenal the ability to apply advanced filters such as searching for “SPAM”, categorically excluding emails from an HR distribution list or seeing statistics of a document’s relevancy percentage — all completed within minutes. Thousands of false hits or irrelevant documents can be discarded from the review in a few mouse clicks.
In utilizing ECA tools for various cases, I have seen firsthand what ECA does well and what it does not. This is definitely not a one-size-fits-all solution. It can be very effective in certain scenarios and less effective in others. If you are considering implementing ECA as part of your discovery strategy, there are a few things to take into account prior to recommending this approach to your case team.
How is ECA going to add value to my case?
*Formulating Search Terms vs. Negotiated Search Terms
The type of case will have an impact on how beneficial adding an ECA strategy will be. Matters which do not yet have an agreed upon set of search terms can benefit greatly from ECA. The ability to test your search term “theories” on the actual live dataset can be instrumental in planning your review strategy. Formulating search terms without being able to see, touch or sample the data can leave you at a disadvantage. For example, there may be industry/project specific terminology that could be missed during the custodian interview process. In more traditional forms of the e-discovery process, the case team will take certain “key terms” of the case and turn those into keywords. There may be a few iterations of the keywords, but for the most part there is little information gained from a search-term report other than hit counts. Through the use of ECA tools, you have real-time access to your document collection and can do multiple iterations of search very quickly. The end result is a more informed decision regarding developing keywords.
On the other hand, if your case has a set of negotiated search terms, from a 26(f) conference for example, you will not have enough flexibility to leverage multiple iterations of search. There are still some features that can increase the culling percentage, but you will need to weigh the cost/benefit of reducing your reviewable data set by these features exclusively. For example, if you know the client receives many CNN or Wall Street Journal e-mail “blasts” which are not relevant to your case but will likely hit for your key terms, ECA tools can easily identify those documents and analyze if there are any conversations in relation to that email.
*High Culling Rate
Vendors boast that by using an ECA tool you can reduce your dataset by 90 percent. Remember the person who first told you if it was too good to be true, it probably was? Well, that person has never used an ECA tool. This is one area in particular that I was surprised to discover actually stayed true to vendor assertions. Make no mistake, the culling rate will be impacted the most by how focused your search is. However, with the additional features ECA has to offer you might easily add another 10 percent to 15 percent to your culling rate. If you are dealing with 100,000 documents, eliminating 10,000 - 15,000 from review has a trickle-down effect on processing, review and production costs.
*Documented and Defensible Search Methodology
Let’s assume that you are have a case for which search criteria has not been defined. How important is it to you to have a well-documented procedure and methodology for how search terms were devised and executed? What better defense for your search strategy is there than to say, “I have sampled “x” percentage of hit and non-hit documents throughout the entire collection of data, and devised these carefully constructed search terms accordingly.” Take that opposing counsel! ECA tools can come equipped with “canned reports,” making the documentation of your search methodology simple. Many of my case teams have incorporated them into binders and attached memos should the need ever arise to defend the search process.
*Going “Back To The Well”
One of my colleagues uses this phrase frequently to describe the need to return to your original set of data in response to additional requests or further investigation. Sure, you can always go back to your processing vendor and ask them to run some extra search terms and let you know how many documents are identified, but wouldn’t you like to have that ability at your fingertips? A request to the vendor can sometimes take days or even a week depending on data volume, and if you are dealing with a fast-moving case you may not have time for that. If your case has the potential to result in additional requests, this may be the answer you are looking for. Within a short amount of time you are back in your original data set and have the results for your new set of search criteria.
The bottom line is that using ECA in certain situations can save your team time and money, and in this economy, lowering discovery costs is on everyone’s mind and certainly a goal for us and our clients. ECA can be an overwhelming idea to attorneys who are new to e-discovery because they already know it costs too much and they don’t want to pay in the first place. You need to have a well-documented cost analysis for them to illustrate the costs of ECA vs. the cost for additional document review that happens without it. Let’s be clear — there is an upfront cost to implementing this approach (typically to the tune of $350 - $550 per GB; some vendors are offering it for free, but be wary of the costs on the other side), but if you can increase your culling rate, it can have a dramatic effect overall on discovery costs.
About the author
Oliver has been in the Legal IT industry for over seven years, five of which were with public/regulatory agencies and the last two have been with Bingham McCutchen LLP. He specializes in consultation and project design of matters relating to E-Discovery as well as implementing, managing, and supporting all phases of the E-Discovery process.
