What is the Term ‘Early Case Assessment’ Really About?

In the last couple of months, I have seen many different definitions of Early Case Assessment (ECA). Some vendors mold the concept of Early Case Assessment to support their own offerings–which isn’t surprising, but it does cloud the issue. Some of the definitions have merit, but not all. There is one definition that I disagree with in particular: it states that Early Case Assessment consists of a traditional sequential legal review in which the documents are split up into review sets for the lawyers to review the documents one by one. This definition asserts that Early Case Assessment is easier after the full, or at least a significant, legal review has taken place. It results in a reduced set of relevant documents, but the drawback, of course, is that it requires the expense and effort of a traditional legal review early on.

Let’s take a step back and see what we can find on Wikipedia for Early Case Assessment:

According to Wikipedia: “Early case assessment refers to estimating risk (cost of time and money) to prosecute or defend a legal case. Global organizations deal with legal discovery and disclosure requests for electronically stored information “ESI” and paper documents on a regular basis. Over 90% of all cases settle prior to trial. Oftentimes an organization will find they need or want to settle a case, for whatever reason, only to find they wish they did before they spent so much time and money on the case.“

The last sentence gets to the real essence of Early Case Assessment: being able to reach a favorable settlement before spending too much time and money! You can only do that if you really know what is going on. In other words, you need to know exactly what relevant data is in your document set as soon as possible. The last thing you want is to be surprised by opposing counsel with an email that you were not aware of and that is not in your favor in the middle of a settlement procedure, mediation or court proceeding.

But, there are other, more cost effective strategies, tools and technology than a massive legal review. A true early case assessment does far more than reduce the number of relevant documents. It arms the legal team with a very good sense of their legal risk, what damaging evidence they may – or may not – possess, and how many people are involved. It is crucial to assess everything in order to determine the strategy and budget. Will you just settle and pay X dollars, or are you going to fight and allocate X dollars to the defense and response work required? Early Case Assessment is more about defining your eDiscovery strategy than it is about implementing it (i.e., reducing the number of documents). Therefore, one should look for a system that enables to you mine your complete information discreetly and “in the wild” before disrupting business-as-usual with an eDiscovery or legal hold process. The right search tools make this possible.

These tools and techniques have been used effectively by law enforcement, intelligence and security applications, where it is impossible to trim down the document set by means of a legal review. Advanced search, content analytics and text mining help professionals to identify “hot” and “relevant” documents immediately, resulting in an immediate insight in what is really going on.

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Source: eDiscovery and Information Management
By: JCScholtes (Zylab)