Under the Federal Rules of Civil Procedure, parties are obligated to share a description of their documents, including electronically stored information (ESI), and any tangible things that might support their case or defense at the very beginning of a lawsuit. This is one critical reason that parties should investigate their electronic documents early in a case. 

But ESI isn’t just useful in litigation; it can also inform your strategy for investigations. Parties, therefore, need to examine their electronic repositories so that they can quickly understand the facts and evidence and determine the best way to proceed. 

Admittedly, this review can be incredibly challenging when you have little information about a legal or regulatory matter. It’s hard to know where to start, especially under the pressure of a tight deadline. Yet it’s better than the alternative: taking a reactive approach to litigation and finding yourself behind the 8-ball when you’re late to uncover a smoking gun document that raises the value of the matter and threatens your defense. 

Here are some tips to make your early case assessment process smooth, effective, and efficient. 

Contents

What is early case assessment and evaluation?
Tips for addressing ESI issues at each stage of discovery
1. Identifying data
2. Preserving data
3. Collecting data
4. Reviewing data
The role eDiscovery software plays in early case assessment 

What is early case assessment and evaluation? 

Early case assessment is the process of quickly reviewing a document collection to learn about a matter and estimate its potential risks and costs. The overarching goal of early case assessment is to determine which course of action is most prudent to resolve the situation, whether it’s an internal investigation, lawsuit, or regulatory matter. 

During early case assessment, lawyers assess whether potential claims and defenses are viable and recognize potential challenges in moving forward with a matter. They identify key witnesses and documents that shed light on the pertinent facts. They also decide how much of a risk the matter poses and determine whether the risk is worth the potential reward. In short, early case assessment helps organizations evaluate risk, reduce legal expenses, control potential exposure, and resolve matters as quickly as possible. 

Tips for addressing ESI issues at each stage of discovery 

The early case assessment process should start as soon as you’re aware of a matter, whether that’s when you realize an investigation is on the horizon or when litigation becomes reasonably foreseeable. At that point, you should progress through the following steps, mirroring the process of the EDRM. 

1. Identifying data 

At the start of the case, review any available documents to determine what types of data may be relevant. Complaints, subpoenas, regulatory notices, and demand letters may all be good fodder for deciding what information may be responsive. 

Next, determine where that data resides. You’ll need to ask questions like these: 

• Which sources are likely to contain relevant information?
• Who created documents and other data that are likely to be responsive?
• Where is that data stored? 

This is also the time to start identifying potential keywords to help you search for other documents. 

2. Preserving data 

Once you have identified potentially relevant data sources and the custodians of that information, it’s time to issue a legal hold. Every identified custodian who may have relevant material—whether they created or received it—should receive a written legal hold. At this point, you’ll need to cast a broad net so that you don’t miss any potentially relevant information. Therefore, your list of custodians could include current and former employees and contractors as well as any third parties under your control. 

The legal hold notice should include, at a minimum, the name of the matter and a description of its claims so the custodian can accurately determine whether they have any potentially relevant documents. You should also inform custodians that they must preserve all potentially relevant documents, erring on the side of preservation if they have any doubt, both now and until further notice. You should also instruct them to stop deleting any information and explain the consequences of failing to comply with the legal hold. 

As you identify custodians, you may want to issue each a questionnaire to complete, conduct short interviews, or both. You should ascertain what custodians may know about the matter as well as have each person identify any other potential custodians or sources of information of which they’re aware. Custodians can be a treasure trove of information that would be difficult to discern during document review, so take the time to be thorough now. 

Your IT team can be a valuable partner in this process. Work with them to determine what types of systems might contain relevant ESI and how best to retain and capture this information. They may be able to point you to other relevant data sources as well as backup sources. Be sure to ask them to suspend any routine data disposal policies. 

3. Collecting data 

The next step is to collect all potentially relevant data for review. You’ll need a secure repository where you can store this information indefinitely until the close of the project. 

In cases that are larger or more complex, you may face a daunting amount of information. If your matter involves thousands upon thousands of documents, you may need to use specialized eDiscovery software or recruit the assistance of an eDiscovery specialist to help you. 

Whatever harvesting method you choose, the key is to follow a defensible, repeatable process. Record the guidelines and procedures that you follow. Make sure the team collecting the documents understands the necessity of preserving the integrity of both the data and its metadata. Without care, electronic documents can be inadvertently altered, running the risk of spoliation sanctions. 

Finally, ensure that you’re storing the documents in an archive that is secure, easily accessible, and searchable for review. 

4. Reviewing data 

During document review, you and your team will assess your information to better understand your case. The key is to ensure you are protecting confidential and otherwise sensitive information as well as documents protected by the attorney-client privilege and work-product doctrine. 

But keep in mind that early case assessment doesn’t call for a full-fledged review of every single document. At this point in the case, you’re trying to get a high-level understanding of the matter. So, use culling techniques to limit your data set as much as possible. DeNISTing, deduplication, and filtering techniques can help you quickly and efficiently reduce your data set. Then you can use search terms and concept clustering to isolate the documents that are most likely to be responsive to the issues. Data sampling techniques can also help you get to the heart of the matter more quickly, because you’ll analyze a smaller set of representative documents to extrapolate information about the whole data set. 

The role eDiscovery software plays in early case assessment 

Early case assessment is supposed to be a quick and dirty review—so it’s not practical to use linear review techniques to go document by document. Instead, you need to use the most efficient means of review possible. That means eDiscovery software that includes powerful analytics as well as AI-driven algorithms. 

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