Last week, I mentioned the seeming contradiction of law firms wanting to appear innovative, while also not spending any money on new technology, and how that might seem like a contradiction that was going to create problems when it comes to strategic planning for firms. Today, I want to talk about another one, one of the current buzz-worthy trends of the eDiscovery industry. Early Case Assessment. (ECA)
In theory, ECA seems like a brilliant idea. Get into a case early, figure out what documents you’re going to need, and how you’re going to locate them, and use search terms, custodian filters, concept search tools, etc. to limit the amount of data a Litigation Support provider is going to have to process and an attorney is going to have to review. Win-Win!
Except it’s not quite that easy. I’ve spoken to many in the field, and I’ve even heard from some corporations about the problems they run into in dealing with outside counsel in this area. I imagine that the conversation goes something like this:
Client: “Tell us what you need, and we’ll only send you that data”
Lit Support vendor: “We’ll come in and help you figure out how to limit the collection, and how to properly collect the data you need to send to your outside counsel”
Outside Counsel: “I’m not sure what we need yet, as I’m just starting to work on this case, go ahead and send me what you have, and we’ll figure out on this end what needs to be produced”
Client: “No, I don’t want to spend $X/hour for you to review documents that we know aren’t relative”
Outside Counsel: “Well, we don’t know what’s relative until we start reviewing what we have and putting the case together”
Client: “You’ll have to do better than that. We’ll work with our vendor to run searches on keywords that you and opposing counsel have agreed to, on the custodians that you’ve agreed to, and send the results to you once we’ve culled the dataset internally”
Counsel: “Well, we haven’t made any agreements with opposing counsel. We don’t want to be limited to that”.
And round and round it goes. The bottom line, is that too many attorneys aren’t doing the hard work of interviewing custodians, defining search terms or concepts, calling in technology and search experts, etc. They are still relying on the idea that they can just collect everything, and figure it out as they go along.
Here in the Midwest, that may still be true in many cases. The amounts of data that we see for cases here, most of the time, doesn’t even compare to some of the large cases that other firms are dealing with. You might actually be able to do a first pass review and locate the relevant documents without doing any ECA now, but the amount of data in the cases is growing, and it’s growing fast. On top of that, the clients are looking for ways to cut their costs, and they see the writing on the wall. They are becoming more and more aware of just how much they can save by using ECA tools themselves, and in some legal departments, doing the first pass review themselves. They’re not just sending over what they have to be reviewed. That costs too much money!
Eventually, attorneys are going to have to let go of the idea that they can put eyeballs on everything. When you start getting hundreds of Gigabyte’s of data, it’s simply not possible to do that in any sort of reasonable time, for a reasonable cost. You have to do something different, and the good attorneys are already prepared for that. The rest will be playing catchup. I just wonder how many clients will be willing to wait for them?