From Legal Tech NY 2010: Early Case Assessment — how far left can you go?

This post is one of several summarizing our coverage of LegalTech New York 2010.  For our other LegalTech posts click here.

Reported by:  Alexis Gambetta / The Posse List 

There were multiple sessions covering early case assessment (ECA) so we’ll summarize a few of them.  We followed the  General Counsel Track and attended “Data Retention Plans and Early Case Assessment-Moving Towards a More Effective System In-House” which was sponsored by Merrill Corporation.  

We also attended the session “Advanced Discovery Analytics and Early Case Assessment” sponsored by Deloitte.

And we had an opportunity to chat with the StoredIQ team who are a bit of an expert in intelligent information management and e-discovery technologies and have (in their words) “revolutionized” ECA.   But they have very interesting technology and a unique approach and they were open to a long chat so we’ll start with them.

So here’s the skinny.  The vast majority of legal cases are settled before ever going to trial.  One of the one of the most valuable and indispensable techniques used by corporate counsel is early case assessment (ECA).  The only argument remaining:  how early it should occur – as early as the initial data gathering at identification and collection, or just before review but after processing?  Or maybe when it is still at the dispute stage?

As Ursula Talley (Vice President of Marketing for StoredIQ) explained “using ECA, legal counsel can assess the merits of a dispute, formulate a legal strategy and make decisions concerning the matter before the costly process of taking the case to trial begins”.   But traditionally ECA occurs close to the review stage of the e-discovery process since it requires that data already be processed and loaded into a review system.  And if you are a contract attorney waiting to begin that review you know the galacial pace of e-discovery:  counsel first determines who is involved (custodians), then preserves and collects their data so that the initial analysis and review can begin.  Maybe.

Expensive, inefficient and prolonged.  Why?  Because collection and preservation involves manual, forensic copying of the custodian’s hard drive and a complete data dump of the custodian’s archived email and documents into a central repository.  Only then can processing and analysis be performed to ready the data set for a first pass review. 

StoredIQ refers to performing ECA “in the wild” meaning where the data natively resides, and the need to have the ability to perform incremental collections. This eliminates the need to repeatedly collect the same data from custodians that are frequently subject to e-discovery requests. 

They have a product (surprise!) to address all of these issues and the product is called  StoredIQ Analyze Anywhere.   In brief: it enables ECA prior to preservation and collection, without requiring the movement of data from where it natively resides. This powerful ability to perform early case analysis on data “in the wild” to give legal counsel the ability to assess the merits of a dispute, formulate a legal strategy, etc., etc.  The goal is to make decisions concerning a legal matter significantly faster than traditional ECA.  What you are doing, in effect, is conducting ECA at the earliest stages of e-discovery without having to migrate ESI from various sources into a centralized repository. 

The interesting part is that StoredIQ has a data classification technology so that the business context of data in its native location is not only available to the ECA user, but is also captured and pushed downstream to traditional review tools enabling a more contextual review experience. 

This is important because as we learned at the Merrill Corporation session the ability to perform in-place ECA must be complemented by an e-discovery workflow that provides a simplified and efficient way to cull potentially matter-relevant data.  You need to process and analyze large initial data sets with user-friendly analysis features to help make sense of a mass of information.   

The Merrill panel was moderated by Daniel Pelc of Merrill and included Wendy Curtis, Esq. (Special Counsel, Orrick, Herrington & Sutcliffe) and Paul Weiner (a shareholder with Littler Mendelson).

The panel started off with a definition of early case assessment as follows:

Early case assessment can be defined as the following: “the implementation of litigation analysis and management protocol that provides for the assembly and review of appropriate information on an expedited basis (30‐90 days) in order to provide a preliminary assessment of the case and the optimal method for proceeding.”

They also discussed that the technology behind ECA has changed drastically over the past years. The number of competitors has risen and partnerships between ECA vendors and providers within the ECA vertical has exploded.

This was the most interesting aspect (for me) because the panel went through the beginnings/sources of ECA and search and put it all into perspective, explaining its development being from two sources:

The Legal Concept:  FRCP 34 includes electronically stored information (ESI) in its definition of a document.  Counsel must “scope” or “assess” the size of their client’s relevant ESI that must be produced in any given case.  See, for example, PhoenixFour, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006) (click here).  In order to determine what documents are relevant, counsel must cull and apply search terms to client’s data to produce rlevant documents. Large data sets were first processed, culled and then searched, which was very costly.

The Technological Concept:  Client’s data was (and is) unstructured.  Client and counsel had difficulty locating all relevant documents in a case.  Costs were high to comply with discovery obligations.  ECA tools, originally created as part of  records and information management (RIM) systems were used to structure and capture client’s data and/or locate, via culling and search terms, to find relevant data prior to processing.  Result: only relevant documents processed and reviewed = Large cost reduction.

So these early ECA methods left you with:

Processing side:  untargeted custodian interviews/untargeted data identification/untargeted preservation and processing/“brute force” review/no lasting value to case

Technology sde:   limited culling and searching capabilities over limited number of repositories/keyword searching only (no concept searching tools)/limited or incomplete data clustering

So that brought a new “proactive” approach to ECA resulting in:

Process Driven (Strategic): RIM/Document Retention Plan (DRP)/e-discovery Response Plan (EDRP) including litigation hold policies and procedures/leverage existing DRP and EDRP to prepare for and conduct ECA

Technology Driven (RIM and Analysis):  leverage existing technologies (RIM technologies, dynamic Data Mapping, and embedded or overlaid ECA tools) to prepare for and conduct ECA/targeted preservation and review thru data sampling, analytics and metrics/preserve, hash and collect relevant data/establish defensible audit trails and logs

And the big thing was search methodologies of which there are now a gazillion.  Ok, they told us about 15:

Boolean searches (and, or, not)

Wildcard searches (*auto*, *tion)

Proximity searches

Thesaurus/Synonym search

Fuzzy searching

Stemming

Statistical searching

Conceptual searching

Content-based searching

Topical searching

Weighted relevance searching

Adaptive pattern recognition

Associative retrieval

Natural language or non-boolean retrieval

Clusters of related phrases

The problem with searches, though, as the panel warned was the result.  Quoting Sedona:  “Sedona: “The use of search and information retrieval tools does not guarantee that all responsive documents will be identified in large data collections, due to characteristics of human language. Moreover, differing search methods may produce differing results, subject to a measure of statistical variation inherent in the science of information retrieval.”

The panel moderator (Daniel Pelc of Merrill) gave us the entire Powerpoint presentation which includes all the notes and slides and it is a treasure trove of information on ECA, search, and more.  You can access it by clicking here.

Postscript:

The StoredIQ software was extremely interesting to us because while the company was flagging it as early case assessment software the reality is that the “in the wild” approach actually means you can analyze your situation well before preservation and collection, without requiring the movement of data, from where it natively resides.   And this means, says Ursula, you have the ability to assess the merits of a dispute before it event becomes “a case”.   StoredIQ is in the vanguard of companies like CaseCentral and eTERA Consulting who are moving beyond (off?) the left side of the EDRM into early information assessment.

We’ll have an in-depth interview with Ursula later this month and you’ll learn more about  the “in the wild” approach.