As we look ahead to a new year, there is an interesting shift in the conversation surrounding e-discovery that portends a change in 2016 with how we view the value that technology can bring to the process.
A growing choir of in-house counsel and outside law firms are talking less about the paradigm of linear e-discovery review—where electronic evidence travels from one stop on the EDRM to the next—and more about the need to gain a deeper vision into the evidence in a case as early as possible. In response to this evolution in client focus, we predict a sea change for litigation technology in 2016 brought about by the emphasis on early case assessment (ECA).
Of course, ECA is a term that means different things to different people. At the heart of ECA is the need to understand and deal with very large data sets resulting from the growing volume of electronic evidence, litigation and regulatory investigations, and make the right decision for the client when it comes to litigation versus settlement. In other words, being able to conduct ECA provides a means to assess exposure quickly, reduce cost and better shape litigation strategy.
In fact, the BTI Litigation Outlook survey has already identified early case assessment as the number one market driver for 2015, noting that in-house counsel are focusing on aggressive settlement strategies and placing more focus on case elimination rather than trial. Moreover, a recent LexisNexis survey of property and casualty (P&C) insurance carriers found that three out of four P&C Carriers use some form of early case assessment, with a stunning 98 percent of them declaring it is “effective” or “very effective” as a means of cost containment.
Benefits of ECA
There are three primary benefits that corporate clients can realize from treating ECA as their new paradigm for e-discovery:
1. Reduce Costs
ECA drives down costs in two additional key ways. First, by addressing electronic evidence at the source and making the content searchable, litigation teams can start reshaping the entire e-discovery process across the workflow, gaining dramatic efficiencies downstream.
Second, an effective ECA strategy on the front end of the e-discovery process can significantly reduce data volumes into the funnel, which obviously has massive implications for cost savings during the expensive document review phase. Some companies have been able to reduce the amount of data subject to review by as much as 85 percent with a robust early case assessment effort.
2. Manage Risk
Interestingly, one of the things that many in-house counsel found appealing about outsourcing their e-discovery in the past was the notion that they were transferring the responsibility of storage, spoliation, retrieval and other potential data custodian risks. Now, many corporate counsel are determining that it’s actually in the company’s best interests to keep as much of the e-discovery work in-house in order to better manage risk.
ECA plays a crucial role in this risk management. Taking e-discovery upstream and closer to the original data allows the client to control its own standards for consistency, transparency and repeatability, which all equate to defensibility. This translates to greater control and reduced risk.
3. Shape Litigation Strategy
In addition to reducing costs and more aggressively managing risk, a focus on ECA helps litigation teams to develop more insightful litigation strategy. Simply put, the more information that your in-house team has regarding the size and risk associated with litigation, the more likely your company is going to be making the best decisions about how to proceed in the case.
Do we go all-in on trying the case, knowing the discovery expenses we’ll be encountering and the sheer volume of pre-trial work that will be required? Do we push forward for now but apply some clear litmus tests on how far we’ll litigate and at which points we’d be willing to settle? Or do we fold our tent now, cut our losses and get the matter resolved as quickly as possible? Hopefully, the decision whether to settle or move forward to trial is simpler, now that projected costs and the potential risks involved with the litigation have been thoroughly assessed.