e-discovery 2.0

At LegalTech New York there was still considerable discussion about ECA, which I of course assumed meant early case assessment.  And, while I have a good idea of what ECA means in the practice of electronic discovery, it struck me that many electronic discovery vendors were making up definitions to suit their own needs.  So, in a search for the one true meaning I began my search in earnest.

First, I went to Wikipedia.  Apparently ECA can stand for a whole host of things, including:

• Evangelical Christian Academy, a school for missionary children in Madrid
• Entertainment Consumers Association, an entity representing American game consumers
• European Cockpit Association, the representative body of 34 national flight crew associations in Europe

After a brief diversion into the mandate of the European Cockpit Association I decided that Wikipedia wasn’t the answer. Then I came across a pretty illustrative post from the Settlement Perspectives blog. There, the author struggles with the same quest and ultimately concludes that an early case assessment is a “disciplined, proactive case management approach designed to assemble, within 60 days, enough of the facts, law, and other information relevant to a dispute to evaluate the matter, to develop a litigation strategy, and to formulate a settlement plan if appropriate.”

What’s interesting about this definition is how important *early* is to a successful ECA.  While it seems both obvious and axiomatic, doing this process within 60 days seems to hold some of the secret sauce.  According to Schering-Plough’s VP of Litigation and Conflicts Management: “in 60 days…  you will know 80 percent of what you will ever know about a case.”

While this 60 day window initially seems reasonable, I’d wager that the timeline can be exponentially more aggressive, especially for practitioners leveraging next generation search and analytical tools…

As an example, let’s assume a fairly broad collection of relevant electronically stored information (ESI) where counsel wisely iterates on their search strategy to divine 80 percent of the significant case facts. This process could and should occur with 60 hours, much less 60 days. Not only is this compressed time frame dramatic in terms of moving the window from two months down to one week, but in reality an ECA needs to be done this quickly in order to facilitate preparation for the newly accelerated meet & confer conferences, as well as providing counsel with the insights to develop a settlement posture before the parties have become entrenched for expensive and protracted litigation.

We live in a time where information is now presumed to be instantly available.  While perception isn’t quite yet reality, it’s incumbent upon modern litigants to have real case data available within days, if not hours, from the inception of litigation.  Since the opposition probably has a significant jump start on the facts (since they filed the lawsuit), the defendant doesn’t have the luxury of taking two months to determine 80% of the relevant facts.

“Unless I’m wrong, and I’m never wrong…” this means that counsel should be conducting ECAs in nearly every case.  It should be “must have” instead of a nice to have. However, anecdotal evidence suggestions that ECAs aren’t performed routinely today.  The question is why?

Aside from the educational component and the use of old school, brute force review methodologies, the answer may lie in a common litigation mindset:  i.e., the desire to avoid costs for as long as possible.  Even in the Settlement Perspective piece the author admits to this mindset:  “I would prefer to avoid ‘all the major work’ on a case if I can.”  While he doesn’t seem to lump data analytics into this camp, this pervasive notion is still readily apparent.

In order to make the sea change where ECA is a standard operating procedure in every matter, counsel must understand that while some costs are incurred early in the process the benefits are crystal clear: i.e., determining customized case strategies early in the matter to decide whether to fight or settle.  Similarly, corporate clients must recognize that the benefits outweigh the costs and require their litigation counsel to include this process in every significant matter.  Failure to do so merely widens the rapidly growing information gap, leads to uniformed case decisions and heightens confusion with the European Cockpit Association.

If you have been to LegalTech before, you know that – by the end of the day – you could use a nice stiff drink to recover. So why not do it with some company? We (Aaref, Dean, Kurt, and Will) will be at the Bridges Bar at the Hilton at 7pm, and we are happy to buy drinks for the first 50 E-Discovery 2.0 readers who join us (we will have a big E-Discovery 2.0 sign on our table, so feel free to just stop by and introduce yourself). It’s a great way to meet us, suggest ideas for what we should cover on the blog, and get warmed up before going to the B-Discovery event later that evening.

Come early though. We mentioned the idea to Brandon, who runs the E-Discovery 2.0 group on LinkedIn, and he invited his group to arrive shortly after, so the seats (and the drinks!) may go fast.

It’s a new year in legal technology, and the visions of sugarplums dancing in our heads quickly give way to visions of LegalTech 2009. After all, who can help but dream about another opportunity to brave the icy streets of New York City in February? Fond memories of attempting to wolf down a stale croissant and cold cup of coffee while jostling for an uptown cab outside the New York Hilton can set even the most jaded litigation support manager’s heart aflutter.

The weather and the Manhattan traffic may remain the same, but, as we’re all painfully aware, this year’s show takes place in the context of a dramatic global recession that is having a huge impact on the legal industry’s use of technology, particularly electronic discovery. It’s in challenging times that innovation often thrives the most, so this year’s LegalTech may actually yield a surprising number of new ideas and technologies.

Innovation aside, this year’s LegalTech will likely have a bit of a different “look and feel” from last year:

Some things, of course, never change. Fortunately, the team at Incisive Media has been working overtime to put together a stellar lineup of practitioners, legal experts, and judges to provide insight into some of the key issues of legal technology. While electronic discovery is top-of-mind for many, there’s a lot of more than that on tap. Key sessions include:

• Patrick Oot, Director of Electronic Discovery and senior litigation Counsel at Verizon will lead the first-ever LegalTech Town Hall meeting, to be featured on YouTube. The Town Hall will be an interactive discussion where participants will be able to submit questions in real-time to a panel of experts for immediate feedback and insight on the topics that are of top concern.
• John W. Woods, a partner at Hunton and Williams, will deliver a keynote on “How eDiscovery is Changing the Relationship Between Law Firms and their Corporate Clients”. Clearly there’s a sea change going on here, which seems to be being accelerating by the economy, and it will be very interesting to hear what John has to say.
• Finally, LegalTech would not be complete without a contribution from a leading light of the bench. And this year, none other than United States Magistrate Judge John M. Facciola of Peskoff v. Faber and United States v. O’Keefe will be presiding. Ralph Losey said he’s “just about my favorite judge of all time” and it’s sure to be a fantastic session to get up to speed on the cutting edge of electronic discovery law.

The fantastic speaker lineup, of course, just scratches the surface. LegalTech is also an incredible networking opportunity to meet with fellow practitioners and vendors. However, it can be a little overwhelming, particularly to first-time attendees. So, we thought we’d close with a video that Monica Bay put together last year that provides a quick “how-to” guide for making the most of your time at LegalTech.

As a final note, I’ll be attending the E-Discovery 2.0 LinkedIn Happy Hour before B-Discovery’s LegalTech event.  It’s at the Hilton’s Bridges Bar from 8:00 – 9:00pm on Monday February 2^nd.  Come by and say hello.  If you are not a member of the E-Discovery 2.0 LinkedIn group, sign up here.  See you at the show!