This morning at the The Masters Conference, one of the leading e-discovery conferences, taking place in Washington, DC, I sat in on the first half of Early Case Assessment: Looking to the Future – From Early Assessment to Early
Awareness. Here are notes from the first half and some comments.  

What is ECA? It’s getting an early look at the facts of your case and at the scope of discovery. Goal: understand the matter risk profile and the cost to defend so that counsel make informed decision about settlement or moving forward?

Where are the immediate savings; how is this different than past?
It’s not a tool per se, it’s a method (a process, the right people, and technology). ECA does not generate savings very early – it’s not about upfront savings. You have to invest at the outset to learn about the case. Clients typically want to delay spending, so ECA is counter-intuitive to many lawyers. Lawyers need to spend more upfront but this creates significant savings over the life of the matter. As important, it prepares lawyers to argue their case more effectively.
The vendor challenge here is that clients are reluctant in this environment to spend upfront. So you need to educate your client – let them know that ECA will reduce the volume of documents that require human review. For a DC practice, dealing with agencies, lawyers have cordial relationship with adversaries. ECA works better with agencies than private parties because of the cordial relationship.
Another benefit of ECA is as an “early warning system.” But from an antitrust perspective, this is less of a factor. Benefit may be greater in securities or fraud matters.
When lawyers offer search terms, they often don’t know the impact on the case. ECA let’s you understand the impact of the search terms that you select. But ECA is still aspirational – uptake is still slow.
Need to emphasize the doc review cost savings.

Other than cost, are there other limits that hold back ECA? Clients are the main barrier. We are moving beyond linear review and search terms to a more subjective approach. If you can do that quickly and iteratively – as you can with ECA – you have a powerful approach, one that is much better and cheaper than collecting too much data. So ECA is less about the tool than getting real insight into data and let that drive decision making and strategy. It gives you more control over the process, with objective insights into the data, so it’s more defensible.
The early adopters are likely to be lawyers or clients who regularly deal with key word searching (RF: suggesting serial litigants I think).

Tools that are better at ‘understanding’ data are in the ECA bucket… how do these emerging technologies affect the process, especially if clients bring the tools in-house? To start, who should operate the tools? It depends on organizational structure. It can be IT, Legal, Info Security, other corporate departments. Depends also on budget. Companies must make conscious and considered decisions about the process. Legal is the ultimate stake holder and should drive the process. Purchasing is beginning to fall into the model of enterprise software acquisition. As for running the software, this is still an emerging area because the processes are still evolving. This too requires work, for example, defining workflows.
There are risks in moving away from lawyers supervising the process. First, you can lose attorney-client privilege. And second, without lawyer supervision, problems in data collection or custodian selection are more likely.

[End session notes]

[Begin comments]

Unfortunately, I had to leave at the half-way mark. What struck me most about this discussion is how much education is required. Already 20 years ago, it was obvious that upfront investment and planning in assessing discovery materials was a good decision. That is, it always makes sense to invest and plan. Sometimes cases do settle and it feels like you’ve over-invested. But that confuses decisions and outcomes. Frankly, I just don’t understand the reluctance to invest. Perhaps if lawyers thought more carefully about the full life-cycle cost of litigation and kept historic data (imagine that!), they would understand.

Further, it was also obvious two decades ago with the earliest full-text databases, built form scanning and OCR’ing documents, that iterative search was an absolute necessity. By 1992, there was a decent selection of conceptual and Boolean search tools. Tool selection did not matter – iterative search and analysis was critical and obviously necessary to anyone who gave the matter any thought.

I find it distressing that there is still a need to discuss this. This is not a knock on the panel, which, unfortunately appears to be a necessary discussion. It does not speak well, however, of lawyers and the legal profession that two decades is not enough time to ‘get it.’