Defining early case assessment for ediscovery and litigation matters
What is ECA? Unlike some ediscovery terminology, ECA, or early case assessment, is open to interpretation: it can be whatever an organization needs it to be. The core definition of ECA is that it is the process by which an organization gathers, reviews, and analyzes data about pending or potential litigation in order to make informed decisions about how to proceed with them.
The specifics of that definition are subject to customization. Organizations can define for themselves how early and rapid the assessment process should be, what data or electronically stored information (ESI) they want to review, what constitutes a matter, and what outcomes are available. In short, ECA can, and should, be a fluid process that depends on the nature of the case.
Generally speaking, organizations use ECA to evaluate potential litigation as soon as possible after they learn about it. If, for example, a former employee alleged that his termination was motivated by discriminatory intent, the company would immediately gather information about when (or even whether) he was terminated, who made that decision, and what information the decision to terminate was based on.
This collection effort might involve paper documents; electronic data such as emails, timesheets, and digital records of personnel actions; and custodian interviews with the central players. Using that information, the company could make a rough but reasonably well-informed decision about whether to settle the case, and for how much, or to proceed to litigation with a strong defense.
During ECA, the organization must narrowly focus on the central legal issues a matter presents. In our example, those issues could be the nondiscriminatory basis for the employee’s termination and any evidence of discriminatory conduct involving the employee. Distilling the keywords to guide an effective search of electronic evidence is a critical step in ECA.
ECA is intended to offer, as its name indicates, an early estimate of the cost and impact of a potential case, but it should also allow an estimate of the expected cost of discovery efforts. ECA informs decisions about the eventual scope of discovery, which can drive the decision to handle ediscovery in house or outsource it. Through initial custodian interviews and data analytics, an organization can determine the approximate volume and depth of data that a case implicates and can make decisions about how to phase collection and analysis of that information. Therefore, it’s important that an organization complete some level of ECA prior to meeting with opposing counsel to discuss a discovery plan.
But ECA isn’t just for litigation: it’s also useful when faced with a regulatory compliance inquiry or an internal investigation. However an organization defines a “case,” ECA can help it to quickly gain insight into the magnitude and potential impact of that case.
Good ECA gives an organization confidence in its decisions, with the knowledge that its responses to threats are based on an objective assessment of the available information. Done well, ECA can reduce an organization’s risks while controlling its costs.
Early case assessment (ECA) is the process by which organizations rapidly gather and analyze data about potential matters in ediscovery, compliance, or internal investigations to reach informed decisions about how to proceed.