What is ECA? Here is my definition.

Much of my time is spent advising and performing activities concerned with preservation and Early Case Assessment (“ECA“). I like to do them both together, at the beginning of a case, with initial priority put on starting the preservation process. Yes, process. There is a lot more to it than just sending out a notice, as Judge Scheindlin reminded us all in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 685 F. Supp. 2d 456 (S.D.N.Y. Jan. 15, 2010 as amended May 28, 2010).

I was challenged by a partner the other day to come up with a simple two paragraph definition of the electronic discovery aspects of ECA. I thought it might be helpful to share my effort, written quickly, just like ECA. There is a lot of confusion and vendor hype surrounding the term these days. So the view of a lawyer actually practicing law in the field is needed. I don’t pretend my definition of ECA for e-discovery is the last word, far from it. This definition describes, to some extent, my personal techniques (such as the use of native views to help get inside the head of a witness), and every attorney tends to have their own unique approaches. This necessarily idiosyncratic definition is shared in the hope that it will start a reasoned dialogue on the subject by those of us whose professional careers are devoted to e-discovery; those of us who actually do ECA most every day, and not just sell software or consult about it.

Same Old, Same Old

Although the ECA process has changed considerably over the last few years, it is nothing new. I have been assessing a case at its commencement my whole career. Every trial attorney does. Review of documents has always been an essential part of most early case assessments. Nowadays, however, the document review is much more complicated, considering the volume of documents has exploded a million-fold and they tend to throw themselves away! In the old days of the 1980s a big document case was a warehouse of documents, now it’s the whole Library of Congress. See i.e.: Lehman Brother Examiner’s Report.

Yes, the document evaluation segment of ECA has changed dramatically in the last thirty years, although the rest of the components of ECA, such as study of the law and witness interviews is pretty much the same. Now, of course, you have to also ask witnesses about their ESI and preservation compliance, something rarely touched on years ago in the pre-Zubulake world. But that is not really a big change in witness interviews. You still focus on the merits of the case, what they know, the five Ws (who, what, when, where, why). Most importantly, the fundamental goals of real ECA remains the same: how good a case do you have? How hard will it be to prove? And every client’s favorite, the one that attorneys are adept at avoiding, how much will it cost? Depends.

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Source: e-discoveryteam.com
By: Ralph Losey