I was a member of a Masters Conference panel brought together by Digital Reef to discuss the question whether early case assessment is working as a way of saving time and money in litigation, as well as for improving its outcomes.
The moderator was Shawnna Childress of Navigant and of Women in EDiscovery. The other panellists were Steve Akers, CTO of Digital Reef, Bill Belt of LeClair Ryan, Browning Marean of DLA Piper US and Michelle Treadwell Briggs of Goodwin Procter.
“Early Case Assessment”, capital letters and all, is one of those expressions which lost all meaning when commandeered by technology marketing departments. It pandered to the idea that there existed a push-button technology solution, and the side-effects included two which were less than helpful: one was that we could defer thinking about cases until they hit us; the other was to make lawyers feel that they were bit-players in a technology solution.
The first of these means that we are always firefighting. Although companies are beginning to realise that there is no realistic alternative to a proper document retention policy and the technology and processes to back it, the reality in many companies is that this involves resources which are not readily available (perhaps because no-one has ever bothered to add up what the fire-fighting is costing – see this article by Katey Wood of ESG which suggests that a simple computation of external legal and ediscovery spend might provoke a different approach to in-house resourcing). Even where there is no in-house capability, companies ought at least to know what they will do on the occurrence of any reasonably foreseeable triggering event – a fire drill to be invoked to aid fire-fighting.
The idea that the lawyers are rendered superfluous by the technology is damaging for two reasons – it discourages them from investigating the available tools, and the costs, savings and benefits which they bring (what you might call a “turkeys and Christmas” point if you like clichés), and it takes the eye off the importance of process. “Process” – there is another of those buzzwords beloved by experts and misunderstood by users. It is not a technical expression or a term of art but simply means “this is how we do things here in a given set of circumstances”. This way of putting it, though cumbersome, actually means something, just as “the early assessment of a case” is more meaningful than the snappier “early case assessment”.
Digital Reef’s technology lies at the front end of the ediscovery process, and early case assessment was a wholly appropriate subject for them to choose. Whilst it would be foolish to say that any of the technology is as good as it is ever going to get, it is certainly true to say that the tools which are available for every stage of a case, including ECA, outstrip the abilities of most lawyers to use them appropriately.
Steve Akers obviously focused on the technology aspects of ECA. There was, he said, a better understanding now of the range of tools available to evaluate information in the early stages of a case, but too many people were still in “reactive” mode, with little preparation done in advance to be ready for effective ECA. Companies need to do more to understand their data, what exists, where it is and what should be retained or destroyed.
There was no avoiding the cloud, he said, and that had significant a discovery implications, as did the proliferation of hand-held devices and social media.
Bill Belt and Michelle Treadwell Briggs focused more on the human side, emphasising the point made above – ECA is primarily a process not simply the use of technology. You need people – the right people – to develop your processes and to understand their place in the legal procedures and in the achievement of the clients’ objectives. That must include the right technology, but it is more than a purely computer function.
To Browning Marean, the fundamental point was the express duty placed on lawyers to acquaint themselves with the facts of a case and its implications right at the outset. “Early case assessment” may have acquired new connotations with the growth of electronic documents and the availability of technology to handle them, but the primary duty is a more fundamental one of competence.
My theme was similar. I said that I struggled with the idea that this most intelligent class of business people, obsessed with the risk of malpractice claims (on the one hand) and with growing their businesses in a recession (on the other) do not know the rules, do not read the case summaries, and seem happy to assert that e-discovery is “too expensive” without getting as much as a single estimate or idea of what is possible. ECA, I said, was an intellectual task not a technology one and we see too much plodding from A to B without application of mind to the objective of clients or courts. “E-Discovery” is not a specialist science – it may involve new skills, but it is no more (and no less) than the discovery of evidence required by the rules.
I suggested that “early” means (in addition to its more generally accepted meanings) any point at which your decision-making will radically affect the scale and cost of what you do later – that is, it ought to be a continuous process in which “early” means “not too late”.
Digital Reef’s grasp of technology extends beyond its core information management function and into its marketing. I recently did a video interview with them (see article here) and they also made a multi-part video of our Masters Conference panel:
This is a good way of extending the reach of panel discussions. We got a good-sized audience on the day but the videos extend the reach of panels like this at, I imagine, no great cost. Achieving more for lower cost is what early case assessment is all about.
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