Early Case Assessment: the generic approach
Early Case Assessment (ECA) refers to the concept of carrying out a preliminary review of a case or matter. Usually in anticipation of, or in the early stages of, a litigation but not necessarily.
In its simplest form, the idea is to identify the key drivers and outlines of the case in order to determine a position and approach:
- what are the issues at stake?
- what are the business impacts and drivers?
- What are the claims and facts?
- who is involved or might be involved (custodians or other relevant parties)?
- when did the facts contested occur?
An other important aspect include identifying Precedents: have we previously dealt with similar cases? Who handled the case (internally and outside counsel)? what was the outcome etc.
Early Case Assessment differs from a full case strategy and planning in the sense that it is really a preliminary review, usually carried out to determine the immediate next steps: who should handle it (who should be assigned to the matter) and the level of risk and associated actions. For example, following an ECA exercise, it might be determined that given the scope and possible business impact, an early notification (heads-up) should be provided to the Management team.
Most Enterprise Legal Management and Matter Management Systems will allow for ECA. it is also possible to carry out ECA "manually" with the use of pre-defined checklists.
ECA is the initial step in preparation to further activities such as case planning, case mapping, the use of decision trees and overall case strategy.
ECA is often associated with eDiscovery but is really a logical step undertake by all legal teams and especially litigators when first involved in a legal matter.
Early Case Assessment: the eDiscovery approach
Within the context of eDiscovery, in additional to the fundamental questions listed above, the question "what type of relevant data might have?" becomes critical.
This initial analysis will enable the eDiscovery team to determine the scope of the eDiscovery effort and support the "meet and confer" discussions with the other party.
ECA is the outcome of this "first pass" when parties involved get a true sense of the scope of the eDiscovery exercise required.
Early Data Assessment (EDA)
Early Data assessment (EDA) is often used instead of ECA. However it represents a "Data-centric" view of a case. EDA is more concerned with data volumes, data types, data location etc than "legal content" of the data.
Carrying out an EDA exercise is more of an IT exercise than a Legal exercise and is critical in determining for example eDiscovery budgets and carrying out appropriate eDiscovery Project Management.
Routine Early Case Assessment
Carrying out an Early Case Assessment on routine, voluntary basis provides the legal team with another dimension to help determine the fundamentals of the case: based on the initial analysis of the data of the case, what does the prognostic look like? was this initial analysis able to uncover "smoking guns" which might make a defense more difficult?