The Business Case for Early Case Assessment
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AccessData Group
The Business Case for ECA White Paper
TABLE OF CONTENTS
Introduction .................................................................................................................................................................... 1 What is ECA?................................................................................................................................................................. 1 ECA as a Process.......................................................................................................................................................... 2 ECA as a Software Process........................................................................................................................................... 2 AccessData ECA ........................................................................................................................................................... 3 What Does This Mean For You?.................................................................................................................................... 4
Introduction
Early Case Assessment or “ECA” is one of the most misunderstood terms in the e-discovery lexicon. It variously means anything from a detailed multi-step data review process to a specific type of software that culls and creates review platform load files. To compound things further, legal practitioners will tell you that ECA is much more than an e-discovery term, but instead encompasses a risk-benefit analysis of the entirety of a case’s merits versus cost effectiveness. If we crowdsource, we see that the Wikipedia definition starts broad, “estimating risk (cost of time and money) to prosecute or defend a legal case” but quickly moves to an explanation that closely tracks the EDRM1 (Electronic Discovery Reference Model) and finally describes in detail the “software approach” to ECA. In reality the true complexion of “ECA” takes something from all of these definitions. At top level, and historically, it is certainly a pure risk/benefit analysis – should we go forward with this case or settle? But just as language changes and expands over time, ECA has expanded to include new meanings – including those that specifically encompass the e-discovery process. At the application level it becomes a process with clear benchmarks and phases - and then finally at the software level ‘ECA’ represents a set of tools that perform specific functions on data to help with the original cost/benefit conundrum. What you the user may be wondering is; What exactly is ECA to me? How does it affect my practice? What should I be doing to enhance my ECA efforts? This paper aims to answer those questions by providing a clear explanation of what Early Case Assessment is in the e-discovery context, how ediscovery affects the risk/benefit analysis of ECA and through what steps it does this.
What is ECA?
Early case assessment was used by attorneys long before the term “e-discovery” was coined and its overall goal is to provide a comprehensive analysis of risk associated with litigating a particular case. Holistic ECA is comprised of a wide variety of processes outside the realm of e-discovery including, but by no means limited to; assessment of the case merits through preliminary evidence and witness review; evaluation of judge, jurisdiction, opposing counsel, jury pool and burden of proof; and estimation of the logistical costs of discovery and taking the case to court, settlement numbers and contract attorney fees. The ultimate objective is really quantitative and qualitative input into a business decision over whether to settle or proceed with the case. While many of these factors have little to do with the logistics involved in analyzing electronically stored information (ESI), e-discovery does play a huge role in the process of total Early Case Assessment, particularly in preliminary evidence assessment and total litigation cost calculation. Much of evidence these days is stored electronically and assessing it early on means collecting, processing, and doing basic analysis on ESI. Of course all of these processes cost money and require services or software, which is why the handling of ESI weighs heavily in the cost calculation. Thus, while “ECA” has certainly not lost its meaning outside of the e-discovery context, the rest of this paper will focus on ECA as a process and set of tools to manage e-discovery.
1| Page
1See www.edrm.net.
ECA as a Process
Much of early case assessment in the e-discovery context is a process which closely tracks the left side of the Electronic Data Reference Model (“EDRM”). This includes; Litigation Hold or the process of informing custodians of the possibility of a law suit and requesting that they preserve all documents and communications relating to the subject matter of the suit; information preservation, which refers to the mechanics of actually making sure the information that is subject to the litigation hold is not destroyed or lost; data collection, which may entail indexing, forensic collection, targeted collection, and collection of structured and unstructured data; data analytics via data mapping and relationship tracing between custodians; Culling of data through deNisting (known file filters), de-duplication and processing; and finally first pass review using filtering, date ranges, and keyword searching. After first pass review the process may continue via production of information for second pass review or perhaps settlement and archiving of information. The goal of having the ECA process in place is to glean enough information that you can support decisions like whether it’s wise to kill the litigation (by settling) before it gets to the discovery phase, or to streamline the package of data you send to final review so that discovery costs you less. The value firms can create by instituting an ECA process comes with having a thorough, repeatable set of steps to manage the first waves of information that are generated by the contemplation of legal action. Add to this the time saved in low value, or non-billable activities and the economics quickly begin to stand on their own. Without litigation hold, preservation and collection plans, it’s impossible to corral the correct information or to accurately assess the size and content of the data stores you are working with. Without culling you’ll never know how much extraneous ‘noise’ you can get rid of to properly assess case timeline and cost estimates. And without first pass review, you lose crucial analysis points that come from teasing out relationships within email threads or between custodians. Plus, you contemplate sending everything you’ve collected into a final review scenario which means exponential growth in time and expense. A well-designed ECA process should help you to know your data, point you in the correct direction for the facts of your case (settle or go to trial), and if you do proceed with litigation, greatly reduce the amount of data you send down the pike to final review.
ECA as a Software Type
ECA software helps accomplish the steps outlined in the ECA process above; thus it could incorporate litigation hold software, processing tools, and collection tools. However, when people speak of ECA software, they usually mean culling and filtering tools that slice and dice a large and unorganized set of data from the a client or their own data stores. For this reason, ECA tools are best known for supporting the “first pass review” functions of categorizing, refining and bucketing data. The most well-known ECA function is probably the pre-defined filtering capabilities interface, which allows the user to apply broad filters such as file type exclusion or a date range to the data set. The filters are often available within the document review program and can be most effectively used for culling of irrelevant files or simply to better understand the overall dataset (size, number of sources and data profile). Pre-defined filters will include, but not be limited to: Encrypted Files, Decrypted Files, Duplicate Files, Graphics, Email fields (To:, From:, Subject, etc.), and Custodians. Another well-known facet of ECA software is its ability to render representations of connections between documents, custodians, and communication strings. For example a threaded or conversational view of email is intrinsic to a quick and holistic analysis of the data that allows for a contextual understanding of the chain of communication including parties involved and subjects. 2 | P a g e
These analyses and reporting functions can also present and quantify which documents did and did not meet search criteria. Seeing relationships between custodians and document connections can give users insight into the heart of the case and help them recognize and analyze key pieces of information. Reports and metrics are critical input to further development of overall case strategy and can influence whether or not the user performs additional collections. Reporting can also help to quickly determine if chronological or conceptual gaps exist in the current data set. Also, because concerns over security and disclosure are no less relevant here than at other stages of EDRM (in fact concerns may be greater because a larger and less controlled team is likely to conduct Review and Analysis), the reporting functionality can also include security and audit reports showing who viewed what data and when. Keyword searching is another crucial part of ECA software that gives users an idea of what words and concepts will be important in the case and allows them to estimate the amount of documents different combinations of keywords will generate for final review. Any ECA application will have an efficient and effective method for using key words to analyze and reduce the subject corpus of data down to a manageable subset, including: Stemming, Phonic, Synonym, Related, Fuzzy, Multi-word and Boolean. Programs will also offer data and evidence bookmarking at the global and case level to support categorization and organization.
AccessData ECA AccessData’s ECA Software accomplishes all of the above and more. Called AD ECA, the product is part of AccessData’s eDiscovery platform which encompasses the components mentioned above including litigation hold, preservation and data mapping, indexing, collection, robust processing, and complex filtering within first pass review. AD ECA is also available as a standalone product which focuses on the ‘classic’ ECA software functionality of processing and first pass review. Within both versions there is fantastic functionality along with an intuitive graphical interface designed leveraging Microsoft Silverlight technology:
3 | P a g e
AccessData ECA
Moreover, AD ECA’s processing engine is built on the industry-standard computer forensic technology, Forensic Toolkit® (FTK®), which is used by law enforcement and government agencies. As a result, AD ECA is able to handle complex files, and if it does encounter a file that it is unable to process, the solution reports on that exception, so users can revisit it as needed. In addition AD ECA includes OCR (optical character recognition) as part of the base product, so no evidence is inadvertently missed during early phases of case assessment. In testing, AD ECA reliably processed the following types of data: • Non-Windows-based files • Corrupt files • Deleted files • Large files • Embedded files • Open files and emails • New & exotic formats • Nested documents (files inside of files several levels deep) AD ECA’s first pass review functionality is similarly robust, offering advanced email analysis including threading and filtering; ability to extensively filter data by custodian, data source, metadata and type; and strong search functionality with the ability to view hit highlights in 600+ supported data types in both natural and text view using: • • • • • • • • •
Boolean Proximity Stemming Related Words Phonic Wildcard Synonym Concept Fuzzy (slider dials sensitivity up or down)
With its intuitive Microsoft Silverlight interface, AccessData ECA is also supports collaboration with numerous concurrent users. Both internal and outside litigation support teams can cooperate in real time on a single case. Additionally AD ECA includes some truly useful exporting and reporting capabilities, including the ability to TIFF at any time, create load files for all major final review platforms, and create transparent search reports, processing exception reports, and production and exclusion reports.
What Does This Mean for You?
As described above, the process of ECA executed with software can save time and money for a corporation or firm. By using advanced processing and culling techniques you can first radically reduce the amount of data you have to sift through. Then with filters and relationship analysis you can ‘slice and dice’ the data to see the case’s strengths and weaknesses. Finally with advanced searching you can zero in on key issues (while discarding irrelevant documents) and estimate review times and amounts. This all has the effect of giving you a better handle on your ESI, your data universe, and ultimately your case. While there may still be some debate over what the term “ECA” means, there can be no disputing its usefulness, whatever the definition. 4 | P a g e
AccessData Group
The Business Case for ECA White Paper
TABLE OF CONTENTS
Introduction .................................................................................................................................................................... 1 What is ECA?................................................................................................................................................................. 1 ECA as a Process.......................................................................................................................................................... 2 ECA as a Software Process........................................................................................................................................... 2 AccessData ECA ........................................................................................................................................................... 3 What Does This Mean For You?.................................................................................................................................... 4
Introduction
Early Case Assessment or “ECA” is one of the most misunderstood terms in the e-discovery lexicon. It variously means anything from a detailed multi-step data review process to a specific type of software that culls and creates review platform load files. To compound things further, legal practitioners will tell you that ECA is much more than an e-discovery term, but instead encompasses a risk-benefit analysis of the entirety of a case’s merits versus cost effectiveness. If we crowdsource, we see that the Wikipedia definition starts broad, “estimating risk (cost of time and money) to prosecute or defend a legal case” but quickly moves to an explanation that closely tracks the EDRM1 (Electronic Discovery Reference Model) and finally describes in detail the “software approach” to ECA. In reality the true complexion of “ECA” takes something from all of these definitions. At top level, and historically, it is certainly a pure risk/benefit analysis – should we go forward with this case or settle? But just as language changes and expands over time, ECA has expanded to include new meanings – including those that specifically encompass the e-discovery process. At the application level it becomes a process with clear benchmarks and phases - and then finally at the software level ‘ECA’ represents a set of tools that perform specific functions on data to help with the original cost/benefit conundrum. What you the user may be wondering is; What exactly is ECA to me? How does it affect my practice? What should I be doing to enhance my ECA efforts? This paper aims to answer those questions by providing a clear explanation of what Early Case Assessment is in the e-discovery context, how ediscovery affects the risk/benefit analysis of ECA and through what steps it does this.
What is ECA?
Early case assessment was used by attorneys long before the term “e-discovery” was coined and its overall goal is to provide a comprehensive analysis of risk associated with litigating a particular case. Holistic ECA is comprised of a wide variety of processes outside the realm of e-discovery including, but by no means limited to; assessment of the case merits through preliminary evidence and witness review; evaluation of judge, jurisdiction, opposing counsel, jury pool and burden of proof; and estimation of the logistical costs of discovery and taking the case to court, settlement numbers and contract attorney fees. The ultimate objective is really quantitative and qualitative input into a business decision over whether to settle or proceed with the case. While many of these factors have little to do with the logistics involved in analyzing electronically stored information (ESI), e-discovery does play a huge role in the process of total Early Case Assessment, particularly in preliminary evidence assessment and total litigation cost calculation. Much of evidence these days is stored electronically and assessing it early on means collecting, processing, and doing basic analysis on ESI. Of course all of these processes cost money and require services or software, which is why the handling of ESI weighs heavily in the cost calculation. Thus, while “ECA” has certainly not lost its meaning outside of the e-discovery context, the rest of this paper will focus on ECA as a process and set of tools to manage e-discovery.
1| Page
1See www.edrm.net.
ECA as a Process
Much of early case assessment in the e-discovery context is a process which closely tracks the left side of the Electronic Data Reference Model (“EDRM”). This includes; Litigation Hold or the process of informing custodians of the possibility of a law suit and requesting that they preserve all documents and communications relating to the subject matter of the suit; information preservation, which refers to the mechanics of actually making sure the information that is subject to the litigation hold is not destroyed or lost; data collection, which may entail indexing, forensic collection, targeted collection, and collection of structured and unstructured data; data analytics via data mapping and relationship tracing between custodians; Culling of data through deNisting (known file filters), de-duplication and processing; and finally first pass review using filtering, date ranges, and keyword searching. After first pass review the process may continue via production of information for second pass review or perhaps settlement and archiving of information. The goal of having the ECA process in place is to glean enough information that you can support decisions like whether it’s wise to kill the litigation (by settling) before it gets to the discovery phase, or to streamline the package of data you send to final review so that discovery costs you less. The value firms can create by instituting an ECA process comes with having a thorough, repeatable set of steps to manage the first waves of information that are generated by the contemplation of legal action. Add to this the time saved in low value, or non-billable activities and the economics quickly begin to stand on their own. Without litigation hold, preservation and collection plans, it’s impossible to corral the correct information or to accurately assess the size and content of the data stores you are working with. Without culling you’ll never know how much extraneous ‘noise’ you can get rid of to properly assess case timeline and cost estimates. And without first pass review, you lose crucial analysis points that come from teasing out relationships within email threads or between custodians. Plus, you contemplate sending everything you’ve collected into a final review scenario which means exponential growth in time and expense. A well-designed ECA process should help you to know your data, point you in the correct direction for the facts of your case (settle or go to trial), and if you do proceed with litigation, greatly reduce the amount of data you send down the pike to final review.
ECA as a Software Type
ECA software helps accomplish the steps outlined in the ECA process above; thus it could incorporate litigation hold software, processing tools, and collection tools. However, when people speak of ECA software, they usually mean culling and filtering tools that slice and dice a large and unorganized set of data from the a client or their own data stores. For this reason, ECA tools are best known for supporting the “first pass review” functions of categorizing, refining and bucketing data. The most well-known ECA function is probably the pre-defined filtering capabilities interface, which allows the user to apply broad filters such as file type exclusion or a date range to the data set. The filters are often available within the document review program and can be most effectively used for culling of irrelevant files or simply to better understand the overall dataset (size, number of sources and data profile). Pre-defined filters will include, but not be limited to: Encrypted Files, Decrypted Files, Duplicate Files, Graphics, Email fields (To:, From:, Subject, etc.), and Custodians. Another well-known facet of ECA software is its ability to render representations of connections between documents, custodians, and communication strings. For example a threaded or conversational view of email is intrinsic to a quick and holistic analysis of the data that allows for a contextual understanding of the chain of communication including parties involved and subjects. 2 | P a g e
These analyses and reporting functions can also present and quantify which documents did and did not meet search criteria. Seeing relationships between custodians and document connections can give users insight into the heart of the case and help them recognize and analyze key pieces of information. Reports and metrics are critical input to further development of overall case strategy and can influence whether or not the user performs additional collections. Reporting can also help to quickly determine if chronological or conceptual gaps exist in the current data set. Also, because concerns over security and disclosure are no less relevant here than at other stages of EDRM (in fact concerns may be greater because a larger and less controlled team is likely to conduct Review and Analysis), the reporting functionality can also include security and audit reports showing who viewed what data and when. Keyword searching is another crucial part of ECA software that gives users an idea of what words and concepts will be important in the case and allows them to estimate the amount of documents different combinations of keywords will generate for final review. Any ECA application will have an efficient and effective method for using key words to analyze and reduce the subject corpus of data down to a manageable subset, including: Stemming, Phonic, Synonym, Related, Fuzzy, Multi-word and Boolean. Programs will also offer data and evidence bookmarking at the global and case level to support categorization and organization.
AccessData ECA AccessData’s ECA Software accomplishes all of the above and more. Called AD ECA, the product is part of AccessData’s eDiscovery platform which encompasses the components mentioned above including litigation hold, preservation and data mapping, indexing, collection, robust processing, and complex filtering within first pass review. AD ECA is also available as a standalone product which focuses on the ‘classic’ ECA software functionality of processing and first pass review. Within both versions there is fantastic functionality along with an intuitive graphical interface designed leveraging Microsoft Silverlight technology:
3 | P a g e
AccessData ECA
Moreover, AD ECA’s processing engine is built on the industry-standard computer forensic technology, Forensic Toolkit® (FTK®), which is used by law enforcement and government agencies. As a result, AD ECA is able to handle complex files, and if it does encounter a file that it is unable to process, the solution reports on that exception, so users can revisit it as needed. In addition AD ECA includes OCR (optical character recognition) as part of the base product, so no evidence is inadvertently missed during early phases of case assessment. In testing, AD ECA reliably processed the following types of data: • Non-Windows-based files • Corrupt files • Deleted files • Large files • Embedded files • Open files and emails • New & exotic formats • Nested documents (files inside of files several levels deep) AD ECA’s first pass review functionality is similarly robust, offering advanced email analysis including threading and filtering; ability to extensively filter data by custodian, data source, metadata and type; and strong search functionality with the ability to view hit highlights in 600+ supported data types in both natural and text view using: • • • • • • • • •
Boolean Proximity Stemming Related Words Phonic Wildcard Synonym Concept Fuzzy (slider dials sensitivity up or down)
With its intuitive Microsoft Silverlight interface, AccessData ECA is also supports collaboration with numerous concurrent users. Both internal and outside litigation support teams can cooperate in real time on a single case. Additionally AD ECA includes some truly useful exporting and reporting capabilities, including the ability to TIFF at any time, create load files for all major final review platforms, and create transparent search reports, processing exception reports, and production and exclusion reports.
What Does This Mean for You?
As described above, the process of ECA executed with software can save time and money for a corporation or firm. By using advanced processing and culling techniques you can first radically reduce the amount of data you have to sift through. Then with filters and relationship analysis you can ‘slice and dice’ the data to see the case’s strengths and weaknesses. Finally with advanced searching you can zero in on key issues (while discarding irrelevant documents) and estimate review times and amounts. This all has the effect of giving you a better handle on your ESI, your data universe, and ultimately your case. While there may still be some debate over what the term “ECA” means, there can be no disputing its usefulness, whatever the definition. 4 | P a g e
