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.

Hello from Los Angeles, where the weather’s fine and summer’s in full swing! Accordingly, a few of us in the legal technology community spent the night before LegalTech enjoying a Dodger’s game hosted by LTN editor-in-chief and rabid Yankees fan Monica Bay (outfitted in full Yankee regalia for the occasion). So as to not incur Monica’s wrath, I left my Red Sox cap at home.

At the game, I happened to sit next to a colleague from another vendor who mentioned that her firm is about to celebrate twenty years in e-discovery.

Twenty years! What a remarkable milestone for any company. It got me wondering about how much technology has evolved over that time period, and raised an interesting question to noodle over between innings: With all of the investment and innovation in the e-discovery space, who’s actually winning the electronic data discovery tug of war, twenty years in?

What is the e-discovery tug of war, you ask? Let’s start with the scene in 1988.

On one side, the documents: They stared at you from across the mud puddle — hundreds or even thousands of boxes stacked one of top of another, hauled out from a warehouse where they’d spent their days, against their will, in windowless solitude, ready for battle. They were ticked.

And on the other side, you: With your new IBM PS/2 Model 80 (the best money could buy: 640×480 VGA color screen, 16mhz 386 processor, 80MB hard drive), flatbed scanner, and some new DOS-based database program called “Concordance.” To add insult to injury, Starbucks hadn’t even really gone national yet, so you were probably stuck with a jar of instant coffee to try to stay awake.

You didn’t stand a chance.

From then until now, two different dynamics have played against each other, pulling the flag back and forth over the dividing line:

1. On one side, the explosive growth of electronic documents has been truly mind-boggling. From a baseline of close to zero in 1988 (WordPerfect 5.1 wasn’t introduced until 1989), today essentially every single business document is created, transmitted, and stored electronically.
2. On the other side, technology innovators in the e-discovery space have used creativity and a large dose of Moore’s Law to store, process, and search electronic documents with ever-increasing speed and efficiency.

During the seventh inning stretch, with the Dodgers holding a commanding lead over the White Sox, I thought: Maybe technology is about to win.

Here’s the argument: Assuming that the creation of document content will still largely be human-driven, now that most every legally significant class of communication is being created and managed on-line, growth of e-discovery-relevant data volumes may quickly move from being exponential (when everything was “going digital”) to a rate driven more by productivity improvements and economic growth. Improvements in processing, search, and analysis of documents, however, will continue to improve at a Moore’s Law pace for the foreseeable future, presumably making it fairly trivial for advanced e-discovery technologies to outmuscle their longtime adversary.

Google shows some evidence of this victory of technology over data. Remember that just a few years back, search engines frequently trumpeted how much of the Internet they were able to index – and it was far from the whole thing. Today, that’s largely a solved problem. It’s simply amazing how quickly Google’s index ingests new data, often in what seems like a matter of minutes. In fact, I dare say that by the time you read this post, you’ll be able to perform a Google search on some of its content and have it come up front-and-center in your search results. Amazing.

What does this mean for electronic data discovery? The best e-discovery technologies will change to solve challenges that are far more strategic in nature. Instead of focusing on how fast and effectively they can process documents, or how quickly they can allow attorneys to review them, they’ll provide powerful capabilities for addressing some of the most important e-discovery problems that inside and outside counsel face, such as:

• How do I craft robust, defensible search strategies for my cases while minimizing e-discovery costs?
• How can I standardize a repeatable, high-quality discovery process that’s executed consistently across my organization?
• How can my organization become more proactive in identifying potential legal risks and liabilities based on our company’s “legal history”?

I’m sure you can come up with a number of others. What do you think – is the war against documents over, and electronic data discovery ready to move to a new phase? Or are there still many more battles to be fought?