Data analysis is one of those litigation support terms that mean different things to different people. Regardless of what you call it, the goal of data analysis is to make accessing ESI a more cost-effective workflow. It should be done early in the eDiscovery process and it should be done regardless of the size of the case.
Here’s why: As eDiscovery costs continue to increase, legal teams must manage the cost by analyzing the ESI prior to any processing or review. Data analysis is most often referred to as early case assessment (ECA). Here is a basic look at what ECA is and why it should be implemented in your workflow.
What is Early Case Assessment?
ECA in eDiscovery can be defined as a: preliminary and high-level data assessment that answers important questions about ESI.
There could be issues with the ESI that have far reaching repercussions if not resolved early enough in the discovery process. Case teams can use ECA workflows to quickly identify potential challenges when working with the ESI. This gives case teams options to prepare and address these potential challenges in advanced.
Data Analysis Is Not…
- Meant to replace in-depth custodian interviews and questionnaires
- Meant to replace agreed-upon preservation or collection protocols
- Meant to replace case team due diligence when identifying ESI
- Meant to replace or be interchangeable with ECA, attorney early case assessment of litigation risks
- A “one-size-fits-all” analysis of ESI
- When eDiscovery starts.
Why Is ECA Important?
In our experience, legal teams often ignore or avoid any data analysis. Too often, they rush into processing and review without a significant understanding of the content of their ESI. This avoidance is a disservice to clients and staff. Data analysis is an activity that yields significant cost savings to the client. With good tracking and reporting, the return on investment (ROI) can be proven in every case.
We see legal team spending on discovery increase unnecessarily when issues with ESI are uncovered too late in the eDiscovery process. This requires work to become reactive instead of proactive. While remediating these issues, we find most of the time and expense of remediation could have been avoided. If data analysis been performed on ESI at the beginning of the project, they could have avoided this cost. We find this holds true even in the smallest eDiscovery matters.
Courts and state bar rules both require attorneys to be competent when managing eDiscovery. Knowledgeable clients are demanding it of their outside counsel. Insurance companies who cover litigation costs closely scrutinize the plans for data analysis and reduction before they approve eDiscovery expenses.
10 ECA Checklist Questions:
- What is the total volume of ESI?
- What kinds of files are included in the ESI?
- Are the sources and types of ESI what the legal team expected?
- Are the source and type of the data consistent with client or agreed-upon ESI preservation, collection and production protocols?
- Are there any types of ESI that will negatively affect processing, review, or formatting of the ESI later in the eDiscovery process?
- Are there any non-standard data types such as internet files, mobile device data, or MAC data that need to be handled in an alternative workflow?
- Is the ESI consistent with the legal team and client’s expectations for scope and budget?
- Is the ESI consistent with the anticipated production workflows, milestones, and deadlines?
- Are there types of files that without question should be excluded from eDiscovery processing?
- Are there sources of ESI that should be phased into or even excluded from eDiscovery processing?