Australia: Take the pain out of eDiscovery by using early case assessment

Last Updated: 19 August 2016
Article by Neeraj Chand

The English philosopher Thomas Hobbes famously described life as 'nasty, brutish and short'.

John Lande, Isidor Loeb Professor of Law at the University of Missouri School of Law, once quipped that Hobbes's adage could be adapted to describe the experience of most parties involved in litigation: 'nasty, brutish and long'.

The stereotype is that lawyers love to spin out a good fight, because that way they make money out of it. Yet, I know litigators who have had only one case go to trial in the past 15 years. To be honest, I think a lot of litigators are very pleased when their client agrees to settle a matter. Often, it's the client who insists on going to court. Sadly, litigation is black and white. There's always a winner and a loser. However, every lawyer knows that conflicts usually revolve around shades of grey, and that the court system has no way of recognising this.

The life of a litigator has become even more challenging over the last couple of decades. These days, it might be better described, in another tribute to Hobbes, as 'nasty, brutish, long and painful'.

Why is life so often 'nasty, brutish, long and painful' for litigators today?

Digital recordkeeping means that both litigation and, specifically, discovery are much more complicated today than they used to be. The days when senior lawyers could focus on the key issues in a case and only had to deal with a few boxes of papers are well and truly over.

Now, as a senior lawyer, you're not just dealing with large numbers of paper documents but you also need to be skilled at running an eDiscovery. In large complex matters, there can be hundreds of thousands, sometimes even millions, of documents, including electronic files such as emails, Word documents, PDF files, spreadsheets, text messages, voicemails, etc.

In short, since the number and types of documents you (as a litigator) have to review have grown significantly, you now have to grapple not only with the law but with the practical problems caused by rapidly changing technology generating documents in a wide array of formats.

The trouble with litigation

During my time spent working in litigation support, I've met a lot of young lawyers. I wish I had a dollar for all those who fled litigation because they loathed dealing with documents. After all, they weren't warned about this part of the job at law school, and reviewing documents, especially electronic documents, wasn't quite what they expected when, after graduating around the top of their class, they joined the fancy law firm whose offices were decked out in marble and glass. It's a bit of a cliché, but they expected to be briefing counsel on their first day in the job.

Is there a solution?

If you're a litigator dealing with a complex matter involving a large number of paper and electronic documents, you're facing a major challenge. However, life can be made easier (for you, as well as your clients) if you are familiar with and are willing to apply the principles of early case assessment (ECA).

What is early case assessment?

Within the eDiscovery space, ECA commonly refers to the process of evaluating information that will provide a quicker understanding of the scope of risk in a particular matter.

More specifically, it involves the evaluation of electronically stored information (ESI).

How does ECA work?

Usually, when we first talk to lawyers about ECA, their eyes glaze over and they look slightly desperate. I can understand this. Just understanding and devising a strategy for a major case is enough of a burden. ECA adds one more thing to get your head around.

The reality is that ECA isn't rocket science. Yes, the software is clever, and sometimes very sophisticated, but the process is pretty straightforward.

When you strip it back to the basics, ECA is an investigative process that uses eDiscovery technology to ingest electronic datasets quickly, and provide a platform where lawyers can apply strategies to identify and target responsive documents.

Most cases rely heavily on a small number of documents, so it's important that these documents are identified quickly and easily. In most cases, too many documents are needlessly reviewed, which is not only distracting but costs lawyers time and clients money.

Through the use of highly targeted keyword/date/domain/custodian search criteria, summary reports, graphical depictions of data, network maps etc., ECA gives lawyers a high level overview of the document landscape and helps them quickly come to terms with the information at hand. By working smart, not hard, you quickly find that which you need to review instead of wallowing through the irrelevant muck.

Once you've filtered your dataset with ECA, an appropriate review software is typically used so lawyers can conduct review of the identified document subset. This process puts the legal team is in a position to make smart decisions (from both a legal and a commercial point of view) about how to proceed in a strategic manner.

ECA can be particularly valuable in cases where the court timetable has been compressed and the parties need to meet incredibly tight time frames.

Even if you're a smaller firm or in-house, you can now manage a large eDiscovery efficiently and cost-effectively by outsourcing ECA

Large firms may have the capacity to handle ECA in-house through their legal technology support (LTS) teams.

Interestingly, smaller firms without LTS teams are realising that they can handle large discovery and eDiscovery projects, too, if they outsource the technical ECA side of the work to providers who specialise in eDiscovery.

In the same way, in-house counsel are realising that they can save their companies a fortune by bypassing their external legal service providers and managing the process in-house, outsourcing only the technical side of the project and the document processing to an external provider specialising in eDiscovery.

Example of a smaller firm that's conquering the eDiscovery beast

One of our current clients is a boutique commercial firm. They're acting for a client who is a defendant in a class action.

To make matters more complicated, their client was joined as a defendant some months after the proceedings began. As a result, they were faced with an extremely compressed court timetable. The client needed to produce several million documents that had been generated over a 25-month period. Around 18 months worth of these documents were located on back-up tapes, which had to be restored.

Together, we devised an ECA strategy to identify the important repositories of documents for review. We worked with the lawyers and client to formulate a list of searches to run. We ran these searches and exported responsive documents in tranches as the data was recovered off back up tapes. The data was then exported into a Ringtail software review platform where the lawyers reviewed and categorised the documents in time to meet the court-imposed deadlines.

The partner running the matter is very pleased with how using ECA to develop a strategy made a very difficult situation manageable.

What are some useful tips for setting up and running a successful ECA?

Tip No. 1: If you're the lead partner on the matter, ensure you're involved and understand the process

It really helps if the partner running the matter, or someone who really understands the issues, is heavily involved in the strategic side of the ECA process, rather than flicking it down the food chain to someone who may not be as well informed. In our experience, frontend effort really does save on backend pain.

The more high-quality background information you can give whomever is going to run the ECA, the better the result you will achieve.

More specifically, the person generating the keywords needs to be someone who understands the case, the significant players, the likely repositories and dates etc. A carefully crafted and targeted search can save you and your team hours, because it eliminates at a very early stage those documents that aren't relevant. Even more importantly, it will save your client money.

Tip No. 2: Devise a detailed strategy

Use the principles of legal project management (LPM) to run your matter.

The days of managing matters on an ad hoc or improvised basis are over. It's inefficient and expensive. Moreover, clients won't stand for it.

If you don't know anything about LPM, either hire a consultant who is an expert in the area or get yourself some training.

I've seen a lot of lawyers run eDiscoveries. I've also noticed that those who use ECA in an intelligent way seem to have fewer grey hairs.

Tip No. 3: Research the possible legal technology providers

Research the various legal technology providers and find the best one for your matter. You want a team of experts who will be accessible and responsive, and who provide excellent value for money. It's a competitive market. My advice is to shop around: you could save a fortune.

Ensure that you do your research on the technology side of things. Different eDiscovery software platforms are best suited to different requirements or matters. Some platforms are more expensive and designed with analytics components to assist with review of larger document sets, but being feature-rich could simply be a costly distraction for smaller matters. Some have been developed for overseas jurisdictions; others have been specifically designed for Australia. Use Google to check out the various software options, including:

  • Doculitix
  • Relativity
  • Ringtail

Make sure you're informed about the available options when you walk into meetings with providers. You don't want to end up being persuaded to use the software that they prefer (possibly because they get a commission), rather than the one that best suits your matter.

In short, if you're outsourcing, make sure you do your homework before you sign on the dotted line.

Tip No. 4: Don't allow yourself to be baffled by technobabble in meetings with IT people

Finally, when meeting with IT people, make sure you ask questions if you don't understand anything. It's easy to be baffled by technical terms. As a lawyer, you must have met practitioners who hide behind legalese. It's no secret that IT people do the same thing. I'd encourage you to call them out on it whenever you encounter this. After all, just about everything can be explained in plain English.

In summary

ECA means that eDiscovery doesn't have to be 'nasty, brutish, long and painful'. Obviously, it's always going to be hard work. However, the rise in digital technology has the potential to save lawyers and their clients both time and money. The trick is to be intelligent about the way you use it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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