I wrote a previous post on the “Guidelines for Helping Companies Through the Early
Case Assessment Process”, with a focus on internal steps and technology necessary to achieve success. While an important part of the process, technology is only part of the solution. A comprehensive approach to early case assessment requires the right processes, technologies and most importantly, people. Like everything involving litigation, the right expert is often key to a successful litigation strategy. None is more important to this process than a neutral consultant who is well qualified to advise a client on early case assessment technology and other preliminary steps. The correct advice in the early stages of litigation is key to the success of the remainder of the case and to controlling the high costs of litigation.
Statistics show that over 90% of all cases settle prior to trial. Short of trial costs, the costs involved with e-Discovery represent somewhere between 50-75% of the money spent by both plaintiffs and defendants. Because of this, organizations have a continued need to conduct early case assessment to determine their risks and benefits of taking a case to trial. This is why designing the correct ECA strategy is so important.
Many service organizations, law firms, and corporations refer to early case assessment differently. Consultants hired by the corporation or law firm on a case manage cases on a risk basis. There also exist a number of software tools that assist in and help facilitate the process of early case assessment. Effective early case assessment might require the combination of professional expertise and software. This pairing, depending on the professional and tools used can provide various degrees of early case assessment review. Early case assessment, as a managed process, often requires customization to each case and the client involved.
The goal of Early Case Assessment is to proactively assess each case and secure the best possible outcome. Early case assessments are a critical part of a corporation’s overall litigation risk management program. With early insight into data, corporate lawyers and IT teams can develop keywords for “meet and confer” meetings and shape case strategy. While these steps necessarily require technology and processes, they are only as good as the people who are hired to direct and implement them.
What is Important in Selecting a Consultant?
I believe that there are 3 key components that should be considered when deciding which consultant is correct for your litigation: experience, knowledge and agnosticism.
1. Experience - Managing electronic discovery projects properly and efficiently requires careful planning and diligent execution. A dedicated consultant with deep institutional and industry knowledge should work with you during the various steps of the discovery process. Litigation consultants have a wealth of legal, technical and industry expertise, making them uniquely qualified to craft early case assessment strategies for your particular needs while following early case assessment best practices. In fact, the process of e-Discovery is becoming an extremely complicated subset of litigation and is best understood by individuals who work in it on a daily basis.
Due the complexities of today’s litigation, it is often unrealistic to think that a single consultant will know the answers to each and every question that arises during the case. However, starting with an experienced consulting team that has strong relationships to other industry experts is the best way to assure that the advice you get will be the most effective for your litigation. What you want is a consultant that recognizes the best service providers and expertise for each problem and can craft a solution that is both effective and cost-efficient.The early case assessment lifecycle will typically include all of the following processes and your consultant should understand the importance of each of them and understand how they impact litigation and build them into a plan:
- Performing a risk-benefit analysis
- Understanding the role of a legal hold and how it should be implemented
- Preservation of information in both the US and abroad when needed
- Gathering relevant information for attorney and expert document review
- Process potentially relevant information for purposes of filtering, search terms and analytics
- Proper selection of a review platform that accommodates all the custom needs of the litigation (non-English documents, native document review, remote access, system security, risketc.)
2. Knowledge – ECA consultants assist you in the development and implementation of custom case assessment strategies and technologies to achieve your litigation objectives. This requires that they have a vast base knowledge at their disposal.
The Federal Rules of Civil Procedure (FRCP) require that both corporations and counsel know where data is stored, how accessible it is, and proactively understand what challenges your company may face if required to produce it. These rules are detailed and often outside the “normal” realm of legal knowledge. An experienced consultant should be well versed in the FRCP to help you comply with judicial expectations, while at the same time preserving your clients’ confidential information.
In many organizations, IT personnel are experts in the data required to be preserved under the FRCP but frequently do not understand the legal complexities of discovery. An experienced litigation consultant specializes in bridging the gap between legal and IT. They can help you assess potential risks related to litigation and investigation matters, and quickly anticipate and resolve issues as they arise.
A qualified consultant can bridge the gap between ECA technology & strategy, developing a customized approach to early case assessment tailored to the needs of your investigation. Some of the solutions and methods that a consultant should be experienced in include:
- Selecting a Defensible Representative Data Set - Identify and confirm critical data filtering terms. Understanding what a defensible representative strategy is regarding sample size, diversity and completeness of source data is key to successfully standing up to judicial scrutiny.
- Developing Search Strategies - Selecting the most effective search methodology (e.g., concept vs. keyword searching) and the best search terms to effectively and defensibly identify what time frames, individuals and subject matters are the most relevant are important to developing a successful strategy.
- Testing & Validating Data – Experience in running queries and repeatedly test, analyze, sample and validate data by measuring and analyzing its response to various key terms
3. Agnosticism – This may seem like an unusual component for evaluating the effectiveness of a consultant, but one that I believe in very strongly. Every litigation is unique and requires implementation customization in order to properly design a successful strategy. When a consultant is wed to a single technology solution or approach, the client may not be receiving the advice that is best for the particular needs of the current litigation. While the underlying litigation principles and knowledge of the consultant should be universal, having the flexibility to select the correct technology is what separates a good solution from a great one.
Unique litigation factors that may impact designing the best approach to ECA assessment include: data that may be located behind firewalls that require special handling, third party data control situations, data residing in foreign countries, specialized document formats and other areas of differentiation. Not all tools are designed for all situations.
A consultant who has experience with multiple ECA tools and document review platforms can often provide the best advice to a client. In the end, it is how people implement the available technology tools and understand the existing (and ever changing) laws and court rules that will have the greatest impact on designing an efficient and cost-effective strategy.
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