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The Importance of Early Case Assessment in eDiscovery

Litigation has become an everyday risk of doing business. Companies can address this risk by balancing mitigation ...

Litigation has become an everyday risk of doing business. Companies can address this risk by balancing mitigation efforts with provisions for early case assessment. In fact, legal experts argue that early assessment is the most critical step of eDiscovery and the litigation process. While there is consensus on that front, there is less agreement on what constitutes early assessment and the best practices.

Key Takeaways

  • Early case assessment (ECA) is a process used by companies to identify, analyze, and understand all aspects of a potential or pending litigation early in the process.
  • The goal is to gain as much information as possible about the case, which can then be used to make informed decisions about how to proceed.
  • Companies prioritize ECA because it can reduce the overall cost of litigation, increase efficiency, improve decision-making, and improve chances of a favorable outcome.
  • Not completing an ECA can result in increased costs, missed deadlines, and poor decision-making.

What Is Early Case Assessment?

Smart casual man on the phone-unsplashECA involves identifying, analyzing and understanding all aspects of a potential or pending litigation early in the process. The goal is to gain as much information as possible about the case. The company can then use this data to make informed decisions about how to proceed.

Risk assessment usually involves these main components:

  • Reviewing the facts of the case
  • Identifying key issues
  • Analyzing applicable law
  • Assessing strengths and weaknesses
  • Identifying potential outcomes
  • Developing a litigation strategy

Is Early Case Assessment for Claimants or Defendants?

Both parties in a case should complete an ECA, but the claimant must do so quickly. Failure to do so could cause the statute of limitations to run out, making it impossible to file the claim. Also, the longer companies take to file a claim, the more difficult it becomes to track evidence. Employees could leave the organization or witnesses could move away.

Finally, claimants must complete thorough ECAs because of the regulations surrounding discovery requests. Claimants cannot simply ask for any or all information that could be valuable to the case. Instead, they must submit detailed eDiscovery requests. The only way to know precisely what to ask for is to complete an ECA as soon as possible.

Defendants should also complete early case assessments. This helps them determine where they stand and how best to choose a suitable approach. It also gives them time to review the evidence and know what is stacked against them before the claimant sees it.

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Why Should Companies Prioritize Early Case Assessment?

Litigation can throw a wrench into business processes at an organization. Companies must pull resources from existing business functions to address litigation needs. In some cases, they might even need to hire industry experts. Is it any wonder it could take time to complete an ECA? Nevertheless, there are benefits to prioritizing this task:

  • Reduced costs: An early assessment can help reduce the overall cost of litigation by helping to focus eDiscovery efforts and avoid unnecessary expenses.
  • Increased efficiency: Early review can help streamline the litigation process by identifying key issues early on. This can help save time and resources down the road.
  • Better decision-making: By understanding all aspects of the case early on, companies can make more informed decisions about how to proceed. This includes deciding whether to settle or go to trial.
  • Improved outcomes: Early assessment can improve the chances of a favorable outcome by helping to develop a strong litigation strategy.

What Are the Risks of Not Completing an Early Case Assessment?

When considering the importance of conducting an ECA, understanding what is at stake can move companies to take action. Here are some of the risks organizations expose themselves to when they choose to delay action:

  • Increased costs: Without an early assessment, companies might incur unnecessary expenses related to discovery and other aspects of litigation.
  • Missed deadlines: In some cases, failing to complete an early evaluation can result in failure to comply within the designated time. This could harm the outcome of the case.
  • Poor decision-making: Without an early assessment, companies might make poor decisions about how to proceed with litigation. This could lead to unfavorable outcomes.

What Are the Steps for Early Case Assessment?

Experts use eight main steps to work through the ECA lifecycle. Companies can adjust these steps based on their specific needs or the details of the case:

  1. Identify the source files you need to analyze.
  2. Conduct a risk-benefit analysis.
  3. Place a legal hold on relevant documents across the organization.
  4. Take the necessary steps to preserve relevant data locally and abroad.
  5. Collect all relevant data based on keywords, timeline, metadata and other relevant parameters.
  6. Review the information you collect.
  7. Enlist the assistance of an attorney and industry experts to review documents further.
  8. Present relevant documents to the parties in the case.

What Are Best Practices for Early Case Assessment?

Proactive companies have an internal protocol for how to complete case reviews. These are some standard best practices they follow:

  • Use ECA software to complete organization-wide scans for data based on parameters you set.
  • Become familiar with your ECA software well ahead of ever needing to use it to comply with an eDiscovery request.
  • Complete an ECA as soon as possible as a claimant and immediately after another company makes a claim when you are the defendant.

What Is the Importance of Early Case Assessment Software?

ECA software can help streamline the review process. It helps workers complete the ECA lifecycle with reduced errors and increased speed. Companies typically need Microsoft 365 business accounts to leverage the best of Microsoft Purview. It is the main eDiscovery tool Microsoft provides to help businesses increase productivity and manage risks.

Despite the benefits of software, companies should not rely solely on technology to complete case assessments. Experienced persons should also implement data controls and review data manually. These professionals should look for corrupted files and matching metadata that coincide with the timeline of events leading to the litigation.

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