In the U.S., 96 percent of all civil cases are resolved short of a jury trial. Along the way, however, costs associated with litigation discovery (e.g., preservation, collection, review, production) are financially burdensome to both the plaintiff and the defendant. In many instances, the opposing party will even strategize on how to make it as difficult as possible to comply with the eDiscovery process, including time and cost to respond to discovery requests. How do you know what your risk is? Should you settle? Do you have a sound legal strategy?
These are the kinds of questions that litigators must ask themselves during the very first phase of the eDiscovery process. They have a crucial need to determine their risks/benefits of taking a case to trial versus entering into what is often a series of protracted settlement discussions. The most pressing issue at hand — developing a winning litigation strategy — should not get lost in a discussion about data management.
This is the second post in a two-part series regarding the evolution in the way that the litigation technology industry has been searching for consensus over distinctions between a pair of key concepts in eDiscovery: Early Data Analysis (EDA) and Early Case Assessment (ECA).
In our previous blog post on this subject, we reviewed how the proliferation of eDiscovery software tools has transformed ECA into more of a data management exercise. These tools — many of which were developed in response to rising concern from in-house counsel about the soaring expenses of preservation, collection and review — gradually shifted the focus from case assessment to data assessment.
But a growing number of industry experts are observing that a new generation of technology has arrived to make the EDA/ECA distinction meaningful at last. Specifically, we now have software tools available that can empower litigators to make better decisions about their cases by having more useful insights at earlier stages in the development of litigation strategy.
“A new approach to eDiscovery technology development should give a litigation team the tools to identify clear litigation objectives and then build a plan that is focused on achieving those goals,” said Steve Ashbacher, vice president of litigation solutions with the LexisNexis software and technology business. “It should provide a way to analyze the case by seeing the full story so you can more clearly see what your case is trying to tell you.”
This new approach would basically revolve around the idea that eDiscovery should not be conducted based on a linear review continuum, but rather through the lens of early case assessment, according to Ashbacher.
“Remember, the primary purpose of EDA is not to learn every fact or review all documents, but rather to gain enough information about the stakes in front of you in order for the litigators to decide how to proceed,” he said. “The more that your eDiscovery software tools can help you obtain that knowledge, the less money and time you will need to spend on setting your case strategy.”
Advanced search engines power the new generation of eDiscovery software tools, which feature visual analytics that are designed specifically for the rigors of eDiscovery. This new technology disrupts the traditional linear review model, from PreDiscovery to production, by rethinking the role of ECA and providing powerful analytics throughout the eDiscovery process.
One example is Lexis DiscoveryIQ, a fully integrated enterprise eDiscovery software platform developed by LexisNexis and enhanced by Brainspace Corp.
“With Lexis DiscoveryIQ, LexisNexis and Brainspace are challenging the status quo,” said Ryan Bilbrey, managing director of OmniVere, LLC, and a member of panel of advisers for the development of the new platform. “Disruption is a term that’s tossed around almost callously in legal technology circles these days, but in this case, here is a team that has reimagined the eDiscovery process to help litigation teams achieve vastly better results.”
The result is a comprehensive platform, focused on ECA, which brings to bear the most advanced eDiscovery technology and analytics tools available. This and other new eDiscovery software tools are shattering the myth that visual analytics and other sophisticated tools can only be used on “bet the company” matters by making them cost-effective for any size of case.
The “EDA vs. ECA” conversation is not new in our industry; thought leaders in eDiscovery have been surfacing this confusion in terminology for a few years now. But here’s what is new: this conversation is no longer just a deep dive into IT minutiae for data scientists.
“Advanced technology solutions have now been commercialized in a way that makes the distinction between these two things crucial for litigators to understand,” said Ashbacher. “Litigation teams — both in-house and outside counsel — can now put these software tools to work in a way that provides them with earlier insights into their cases, resulting in better litigation strategy at reduced costs to their clients.”
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EDA vs. ECA: In Search of a New Approach