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.
Photo by Christian Schnettelker, www.manoftaste.de
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Once upon a time I bought a used hard drive at a computer resale shop which I needed for a patent infringement suit I was defending about software developed for a 1987 Apple Mac computer. The hard drive contained all of the client files for a well-known law firm in my home town. Apparently neither the lawyers nor their IT folks bothered to properly wipe the contents. It’s not hard to eliminate sensitive data from computers, phones, and tablets, but everyone must think about it given the size of eWaste. According to the according to a report by the United Nations University, the academic and research arm of the United Nations by some estimates:
…consumers threw away 92 billion pounds of used electronics last year, up from 87.7 billion pounds the previous year.
Of course many online services offer trade-in programs including Amazon’s Trade-In program which:
…allows customers to receive an Amazon Gift Card in exchange for hundreds of thousands of eligible items including phones, electronics, video games, books, DVDs, and CDs.
Given the size of electronic eWaste it is all the more essential that sellers remove sensitive data to protect their privacy, so don’t just hand over any electronic device without making sure all of your personal and business data has been completed removed.
The ability to collect, access, and analyze massive amounts of data has reached the point where no single entity can do all the work; great data collaboration is a necessity for success at any level of business. According to article, “Andreas Weigend, who directs Stanford University’s Social Data Lab, is a longtime proponent of the societal benefits that come with the socialization of data. If the last century was marked by the ability to observe the interactions of physical matter—think of technologies like x-ray and radar — this century, he says, is going to be defined by the ability to observe people through the data they create, share and consume.”
Such a socialization of data and the collaboration that comes with it has many sides though, “On one side, businesses now require smart machines to blend vast amounts of data together for analysis. Two-thirds of organizations are already trying to blend together five to 15 sources of data for analysis, according to a recent Harvard Business Review study (PDF), and the majority who use manual analysis with Excel docs realize it’s not a viable solution anymore.
On the flip side, once that complex data blending has been done, there are significant benefits to the wisdom of the crowd, aka data analysis collaboration. Various experts in different disciplines can review and weigh in, external partners can collaborate on shared data insights, and new answers can be asked in a groupthink manner with iterations within the data analysis.”
