e-discovery 2.0

The legal battles during the discovery phase of the Oracle v. Google Java licensing and patent infringement complaint are now well documented. Just search for “Lindholm email” and you’ll find pages and pages of opinions and blog posts on the case. Why so much fuss over a piece of email? Well, as Judge Alsup aptly describes, this is the type of smoking gun email that has the potential to “turn the case on its head.”  More importantly, this inadvertent email never needed to happen, if the parties had better leveraged existing eDiscovery technologies.

The eDiscovery battle over admissibility of this email, as well as whether it can be a public record, is natural and to be expected, especially in such a high profile dispute. Google has already made five attempts to either claw back these documents or protect them under seal. Besides the question of whether privilege waiver is in fact granted simply by adding an “Attorney Work Product” annotation to email, which Judge Alsup has eloquently addressed in the filing here, there is another interesting question to be considered. In addition to the two email copies that had the above designation, there were nine other sequential drafts, created within a five minute period. These drafts were generated by the “auto save” capability of the email software, possibly as a way to prevent the author of the email from losing partial work. Don’t we all love that feature, since despite all the technological advances computers crash, networks fail, and software freezes, and in those times we’re thankful that our work was indeed automatically saved? However, if these are indeed present, are these drafts discoverable, especially if they have not been shared with anyone?

Although in this instance the intent of these drafts is made evident by the final email, which included the recipients, none of the nine drafts of the email have a TO:, CC: or BCC: address field filled in. So technically, the drafts in their “pre-final” form were never communicated to anyone else. If so, should they even be considered electronically stored information (ESI) that needs to be produced? Let’s say that these emails were never sent and merely existed as drafts, perhaps capturing a person’s train of thought. Are they discoverable?

Of course, determining whether such partial and non-evidentiary ESI exists among your millions and millions of documents to be examined for production becomes increasingly the purview of powerful search and analysis software. In this instance, Google and their legal team would have been well-served by email analytical software that can isolate drafts and offer them for removal from production. Also, using a capability such as Near Duplicate Identification would have identified these drafts as similar to the final ones that were marked as privileged. After all, if the legal team had known of their existence prior to production, they would not have been surprised by the opposing team producing them as key documents.

I invite your comments, especially on the notion that partially completed drafts are admissible as evidence.

In the first settlement of its kind, FINRA settled with the SEC on October 27, 2011 due to allegations over a 2008 incident where a regional Kansas City office of FINRA doctored documents.  The alleged doctored documents were from three internal staff meetings, where information was either edited or deleted and then provided to the SEC with the “inaccurate and incomplete” changes. Mary Shapiro, currently the Chairman of the SEC, is in an interesting spot as she was Chief Executive of FINRA at the time of the alleged wrongdoing.  She apparently had no direct involvement with the decision to take action against FINRA.

The motives for doctoring the documents are unclear, and so is whether or not the alterations of the documents led to any material damage other than FINRA’s diminished credibility.  Ironically, the SEC has had its own struggles in recent months with a slew of articles published in various newspapers highlighting their own challenges with document retention and the improper destruction of documents. Both of these scenarios have been called to light by whistleblowers within their respective agencies.

These antics certainly pose the question: Is it a good use of taxpayer money to have regulatory agencies fighting each other over document retention and record keeping practices? The answer is probably no. But the first question begs the second: If they don’t do it, who will?  While information management is not the sexiest part of the SEC and FINRA’s responsibilities, it certainly is an important one and the foundation of their information intelligence.  Without proper document retention and information governance, the probability of connecting the dots to discover insider trading or other malfeasance is low.  Moreover, in order for agencies to retain credibility they need to be able to locate documents with ease and speed and those documents must be truthful and accurate.

Because FINRA is a self-regulatory firm for securities and is overseen by the SEC, it seems appropriate that they investigate matters like the one at hand.  According to the SEC, the 2008 incident is the third instance in the past eight years where an employee of FINRA, or its predecessor, the National Association of Security Dealers, has provided altered or misleading documents to the SEC.  It remains to be seen if this is intentional on the part of FINRA to conceal undesirable facts or to promote an item on their agenda, or if in fact they are simply negligent with regard to their record keeping policies.  Either way, it is a problem for the SEC and the government in general as it undermines agency credibility and compromises the ability to intelligently leverage information.   This settlement also does no favors for FINRA at a time when they aim to expand their 4,600 base of supervisory authority to include 10,000 more investment advisory firms.

So, what can be done about this behavior and the risks it poses? Corporations and governments are facing the same issues that information governance poses due to the data explosion and the growing complexity of data sources today.  At a minimum, there needs to be a policy in place that governs how data, regardless of form, is handled and disposed of in the information lifecycle.  It also makes sense to form an audit committee within the government that can inspect and assess the information management practices of each agency, as well as serve as a  third party mediator between agencies when these challenges arise.  This is a good idea for two reasons.  One, agencies can focus on their responsibilities instead of getting sidetracked with issues they are not expert in, like document retention or record management.  Next, this problem has reached a point that it’s necessary to appoint an independent group to audit the government due to the data explosion and pace of technology today.  We have the SEC and FINRA to watch the financial industry and provide us with assurance that business is being conducted in a lawful manner.  We don’t need the SEC or FINRA to take up document retention as another responsibility, as there are other professionals that can do that more effectively and independently.

While expansion of government is not the goal of forming yet another committee, this committee could potentially free up agencies to do more of the work they are charged with.  This would also promote standardization across agencies and regulatory bodies, which would be a giant step in the right direction as data volumes grow.  The actions that resulted in this settlement were remedial in nature.  FINRA took decisive action to air a podcast about document integrity and scheduled an agency-wide town hall meeting addressing the same for all current and new employees.  They also hired an independent outside consultant to provide additional staff training on document retention and integrity.  This will be a continual educational process for the private and public sector, and employee training and auditing the process will be the lynchpins for success.  The element of deflection is also at work here, as the SEC is not a model example of best practices for document retention and the moment.

The SEC is working through allegations of document destruction, FINRA is accused of document doctoring, but all these assertions circle back to the central theme of having a document retention policy and compliance with that policy.  This naturally leads to the need for education and training, and the ultimate auditing of the process for compliance.  In this rare case of watchdog bites watchdog, three points become clear: 1) The SEC has a higher and best use other than policing these issues; 2) information management has reached a point that it requires a separate and independent body to monitor and regulate allegations of misconduct; and 3) sometimes it takes a dog biting a dog to truly illustrate the magnitude of a problem.

The data explosion that has burdened organizations across the globe for the past decade has become increasingly expensive to manage.  Many experts point to storage as the most obvious culprit for higher information governance costs.  There are, however, other factors driving those costs.  For example, demands for electronically stored information in legal and regulatory proceedings have significantly increased expenses surrounding data management.  Those demands have forced organizations to meet the high expectations that courts and regulatory bodies have for how they address their information or face the consequences.

Those consequences include sanctions and regulatory fines for groups that fail to account for how they store, manage and discover their information.  The $919 million verdict rendered in the E.I. du Pont de Nemours v. Kolon Industries case is paradigmatic of this trend.  That verdict was inextricably intertwined with the court’s instruction to the jury that executives and employees for defendant Kolon Industries deleted key evidence after the company’s preservation duty was triggered.

Going to Cloud Services for Data Archiving and eDiscovery

These rising data costs – and the risks they pose – are driving organizations to explore new technologies and methods for managing their data.  The latest alternative to traditional on-premise solutions involves leveraging cloud-based services.

The hype surrounding the cloud has generally focused on the opportunity for cheap and unlimited storage.  While cost effective data storage is important, that factor alone should not be determinative for selecting a cloud service provider.  Organizations must have the actual – not theoretical – ability to retrieve their data and do so in real time.  Otherwise, they may not be able to satisfy legal or regulatory requests, let alone the day-to-day demands of their operations.

In an analogous context, courts have traditionally compelled paper document productions even though the requested materials may be buried in a messy warehouse.  In one such case from this year, a U.S. district court in New York ordered a company to turn over decades-old records that were commingled with other materials in poorly labeled, shrink-wrapped boxes.  The court reasoned that disorganized record-keeping should not excuse an organization from producing relevant information.  See Brooks v. Macy’s (S.D.N.Y. May 6, 2011).

The rationale from the Brooks case is equally applicable to cloud-based services.  Cloud-based data must be intelligently organized so that companies can retrieve data in a timely fashion for business and legal purposes.  Otherwise, the savings achieved through cheap storage will be negated by the resulting legal quagmire.

Paring Back Superfluous and Duplicative Information

To facilitate the data retrieval process, the right cloud service provider should have the capacity to implement and observe applicable company retention policies.  An effective retention policy will generally help a company retain information that must be kept for business, legal or regulatory purposes – and nothing else.  The service provider should enable automated retention rules to ensure that information is kept only for a designated time period.  This will allow data to be expired once it reaches the end of that period.  And by expiring that data, the company will limit the amount of potentially relevant information available for follow-on litigation.

The pool of information can also be decreased through single instance storage.  This deduplication technology eliminates redundant data by preserving only a master copy of each document placed into the cloud.  This will reduce the amount of data that needs to be identified, collected and reviewed as part of the electronic discovery process.  For while unlimited data storage may seem ideal now, reviewing unlimited amounts of data will quickly become a logistical and costly nightmare.

Tools to Facilitate Discovery

A cloud service provider should ideally have eDiscovery functionality.  At a minimum, the service provider should be able to deploy legal holds to prevent users or automated policies from overwriting and destroying data.  Advanced search capabilities should also be included within the cloud-based service to reduce the amount of data that must be analyzed and then reviewed.  Moreover, the provider should support compatible load formats for export to third party review software.

Another key discovery issue is whether the cloud service provider can establish a clear audit trail for transmissions of company data.  Since information could be modified in transit by the routine operation of a service provider’s computer systems, an audit trail is necessary to prove that company documents and their metadata were not affected or otherwise compromised during transmission.  Without this assurance, a company may not be able to demonstrate the authenticity of its data before a tribunal or comply with key regulations.

A cloud server provider that can quickly retrieve and efficiently discover data has the potential to help organizations address their legal and regulatory demands in a cost effective manner.  Such a provider may be just the solution for organizations that are looking to properly address their runaway information governance costs.

It is axiomatic that the law helps those who help themselves.  Perhaps nowhere is that truism more applicable than in the context of electronic discovery.  The organization that implements an effective information governance strategy – including developing reasonable data retention policies – will likely avoid court sanctions and reduce its legal costs.  This was confirmed in a recent industry survey, which found that organizations “help themselves” when they develop information retention policies.  According to the survey, better retention practices drive dramatically better outcomes in litigation, particularly in the context of retention and preservation.

Such a finding is echoed by a recent case issued from the District of Indiana.  In Haraburda v. Arcelor Mittal U.S.A., Inc. (D. Ind. June 28, 2011), the court tied a litigant’s preservation duty to its document retention efforts.  In order to discharge its duty to reactively preserve evidence, the court reasoned that enterprises must proactively create “a ‘comprehensive’ document retention policy that will ensure that relevant documents are retained.”  Failing to implement a retention policy often results in a loss of key information.  And this, opined the court, may result in sanctions.

Such a finding is not limited to an isolated case.  Court decisions from across the United States in 2011 have found the same connection; better data retention practices yield more successful document preservation results.  For example, in the E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. April 27, 2011), the plaintiff manufacturer defeated a sanctions motion due to its effective information retention procedures.   The manufacturer implemented a document retention policy that typically kept emails from former employee accounts for 60 days, after which the emails were overwritten and deleted.   Among the emails deleted pursuant to that policy were several that the defendant argued were relevant to its counter-claims.  The DuPont court declined to impose sanctions, however, since the emails in question were overwritten before the duty to preserve was triggered.  Instead, the court lauded the manufacturer’s preservation efforts, finding that it “took positive steps reasonably calculated to ensure that information . . . was preserved for litigation.”  Because the manufacturer faithfully observed its established retention policy, it reduced a stockpile of email, made relevant documents unavailable for discovery and was still protected from court sanctions.

Similarly, in Viramontes v. U.S. Bancorp (N.D.Ill. Jan. 27, 2011), the defendant bank relied on its data retention protocols to stave off a sanctions motion after deleting several years of email.  Because those emails were destroyed pursuant to a neutral retention policy before a preservation duty attached, the bank was protected from sanctions under the Federal Rule of Civil Procedure 37(e) safe harbor for the destruction of electronic information.

The converse, of course, is also true.  Those organizations that failed to implement effective retention policies have fared poorly in discovery because they have not preserved relevant ESI.  Take the defendant, for instance, in Northington v. H & M International (N.D.Ill. Jan. 12, 2011).  The court issued an adverse inference jury instruction against that company because it spoliated significant emails and other data.  The genesis of this spoliation was the company’s failure to establish a formal document retention policy.  Instead of having a thoughtful, top-down approach, “data retention . . . was evidently handled on an ad hoc, case-by-case basis.”  The company’s failure to develop a pre-litigation information retention policy eventually led to the loss of key information and the court’s sanctions award.

These recent cases and others confirm the correlation between retention and preservation.  Simply put, proactive retention leads to better preservation in eDiscovery.  Anything less could be disastrous in litigation.

Symantec today issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information (ESI) that we see expanding by the minute.  Perhaps counter intuitively, the survey of legal and IT personnel at 2,000 enterprises found that email is no longer the primary source of ESI companies produced in response to eDiscovery requests.  In fact, email came in third place (58%) to files/documents (67%) and database/application data (61%).  Marking a departure from the landscape as recently as a few years ago, the survey reveals that email does not axiomatically equal eDiscovery any longer.

Some may react incredulously to these results. For instance, noted eDiscovery expert Ralph Losey continues to stress the paramount importance of email: “In the world of employment litigation it is all about email and attachments and other informal communications. That is not to say databases aren’t also sometimes important. They can be, especially in class actions. But, the focus of eDiscovery remains squarely on email.”   While it’s hard to argue with Ralph, the real takeaway should be less about the relative descent of email’s importance, and more about the ascendency of other data types (including social media), which now have an unquestioned seat at the table.

The primary ramification is that organizations need to prepare for eDiscovery and governmental inquires by casting a wider ESI net, including social media, cloud data, instant messaging and structured data systems.  Forward-thinking companies should map out where all ESI resides company-wide so that these important sources do not go unrecognized.  Once these sources of potentially responsive ESI are accounted for, the right eDiscovery tools need to be deployed so that these disparate types of ESI can be defensibly collected and processed for review in a singular, efficient and auditable environment.

The survey also found that companies which employ best practices such as implementing information retention plans, automating the enforcement of legal holds and leveraging archiving tools instead of relying on backups, fare dramatically better when it comes to responding to eDiscovery requests. Companies in the survey with good information governance hygiene were:

• 81% more likely to have a formal retention plan in place
• 63% more likely to automate legal holds
• 50% more likely to use a formal archiving tool

These top-tier companies in the survey were able to respond much faster and more successfully to an eDiscovery request, often suffering fewer negative consequences:

• 78% less likely to be sanctioned
• 47% less likely to lead to a compromised legal position
• 45% less likely to disclose too much information

This last bullet (disclosing too much information) has a number of negative ramifications beyond just giving the opposition more ammo than is strictly necessary.  Since much of the eDiscovery process is volume-based, particularly the eyes-on review component, every extra gigabyte of produced information costs the organization in both seen and unseen ways.  Some have estimated that it costs between $3-5 a document for manual attorney review – and at 50,000 pages to a gigabyte, these data-related expenses can really add up quickly.

On the other side of the coin, there were those companies with bad information governance hygiene.  While this isn’t terribly surprising, it is shocking to see how many entities fail to connect the dots between information governance and risk reduction.  Despite the numerous risks, the survey found nearly half of the respondents did not have an information retention plan in place, and of this group, only 30% were discussing how to do so.  Most shockingly, 14% appear to be ostriches with their heads in the sand and have no plans to implement any retention plan whatsoever.  When asked why folks weren’t taking action, respondents indicated lack of need (41%), too costly (38%), nobody has been chartered with that responsibility (27%), don’t have time (26%) and lack of expertise (21%) as top reasons.  While I get the cost issue, particularly in these tough economic times, it’s bewildering to think that so many companies feel immune from the requirements of having even a basic retention plan.

As the saying goes, “You don’t need to be a weatherman to tell which way the wind blows.”  And, the winds of change are upon us.  Treating eDiscovery as a repeatable business process isn’t a Herculean task, but it is one that cannot be accomplished without good information governance hygiene and the profound recognition that email isn’t the only game in town.

For more information regarding good records management hygiene, check out this informative video blog and Contoural article.

A federal jury returned a stunning, $919 million verdict yesterday for DuPont in a trade secret theft case.  In E.I. du Pont de Nemours v. Kolon Industries, the verdict was the culmination of a two-and-a-half year battle that DuPont waged against Kolon Industries to prove that Kolon had misappropriated key aspects of its formula for Kevlar®.

The court delivered a decisive blow shortly before trial when it found that Kolon had destroyed emails and other electronically stored information linking it to the trade secret theft.  The sanction for that spoliation was an instruction to the jury that Kolon executives and employees had deleted key evidence after the company’s preservation duty was triggered.

The verdict against Kolon is just the beginning of its problems.  DuPont will now request over $50 million in punitive damages from Kolon, another $30 million for reimbursement of its attorney fees and a permanent injunction forbidding Kolon from using the stolen trade secrets.  Not surprisingly, Kolon’s stock dropped 15% after news of the verdict reached the markets today.

The eDiscovery sanctions order and corresponding verdict make it clear that organizations should invest the time and effort to properly prepare for litigation and discovery.  As we argued in our previous post on the DuPont case, having the right tools in place could have prevented much of the spoliation – and the resulting instruction to the jury – that occurred in the DuPont case.

A famous quote from intellectual George Santayana provides an appropriate backdrop for organizations to better understand why they should deploy technology to strengthen their litigation response effort.  As Santayana explained in The Life of Reason: Reason in Common Sense, “[t]hose who cannot remember the past are condemned to repeat it.”

The “past” can be a powerful playbook in the game of eDiscovery.  Fortunately for organizations, the lessons of eDiscovery history abound.  Indeed, the decisions that courts issue every day across the United States and in other countries provide substantial guidance on what organizations should and should not do to properly prepare for the discovery phase of litigation.

One of the principal lessons that can be gleaned from American court cases in 2011 is that technology can help organizations address the demands of eDiscovery in litigation.  Technology has assumed such a significant role because it facilitates the oversight process that lawyers must engage in to ensure that pertinent documents are preserved for discovery.  This year alone, the failure to exercise that oversight has in many instances culminated in evidence destruction and sanctions.

That message was emphasized this summer by a Virginia based federal court in a hotly contested trade secret dispute.  In E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011), the court determined that it would issue an adverse inference jury instruction against defendant Kolon Industries as a sanction for its evidence spoliation.  The spoliation at issue occurred when Kolon deleted emails and other records relevant to DuPont’s trade secret claims.  After being apprised of the lawsuit and then receiving multiple litigation hold notices, several Kolon executives and employees met together and identified emails and other documents that should be deleted.  The ensuing destruction was staggering.  Nearly 18,000 files and emails were deleted.  Furthermore, many of these materials went right to the heart of DuPont’s claim that key aspects of its Kevlar© formula were allegedly misappropriated to improve Kolon’s competing product line.

Surprisingly, however, the court did not finger the Kolon employees as the principal culprits for spoliation.  Instead, the court laid the blame on Kolon’s attorneys and executives, reasoning they could have prevented the destruction of information through better oversight.  The hold process was particularly flawed.  The notices were either too limited in their distribution, ineffective since they were prepared in English for Korean-speaking employees, or too late to prevent or otherwise alleviate the spoliation.  Given the logistical challenges of implementing a hold in this instance, perhaps only the automated functions of technology such as archiving software might have strengthened the oversight process and obviated the spoliation that took place.

The lack of attorney oversight also factored into another pertinent sanctions order this year, this time from a federal court in Chicago.  In Northington v. H & M International (N.D.Ill. Jan. 12, 2011), the court issued an adverse inference jury instruction against a company that destroyed relevant emails and other data.  The spoliation occurred in large part because the company neglected to establish a global litigation response effort.  For example, there was no process for issuing or ensuring compliance with a litigation hold.  Nor was counsel engaged in the critical steps of preservation, identification or collection of electronically stored information (ESI).  Into this vacuum stepped rank and file employees – some of whom were accused by the plaintiff of harassment – who were tasked with identifying and collecting discoverable emails from their workstations.  Predictably, key documents were never found and the court had little choice but to promise to inform the jury that the company destroyed evidence.

The problems associated with the lack of oversight in DuPont and Northington are compelling reasons why organizations should consider using technology tools as part of their overall litigation response strategy.  One of the most helpful tools in this regard is archiving software.  Indeed, having the right archiving solution in place might have preserved the spoliated records in these actions.

For example, archiving software can be programmed to prevent employees from deleting emails and other electronically stored information.  By ingesting data into a central repository and leaving copies of the materials on local computers, employees could have access to their archived records.  They would not, however, be able to delete those documents from the software archive.  In addition, a litigation hold could have been placed on archived data to prevent automated retention rules from overwriting information.  Either of these features might have prevented much of the spoliation – and the resulting sanctions – that occurred in both the DuPont and Northington cases.

The automated functions of archiving technology can benefit a company’s litigation response in other ways.  For example, such a tool may limit the amount of potentially relevant information available for follow-on litigation.  Absent a legal hold, retention rules that are programmed into the software will ensure that ESI is expired once it reaches the end of a designated period.  In DuPont, such a feature could arguably have eliminated entire categories of older documents before a duty to preserve those materials ever ripened.  This facet not only has the potential to reduce legal exposure, but also the attendant costs associated with reviewing those documents in litigation.

DuPont, Northington and other cases from the recent past delineate the steps companies can take to address the challenges of eDiscovery.  Organizations do not have to “repeat” past mistakes that victimized clients and counsel alike.  Instead, they can implement the right technology tools as part of a thoughtful, proactive approach to litigation.  By so doing, organizations will avoid Santayana’s judgment by “remembering” the lessons of eDiscovery history.

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.

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