Think tanks, judicial members and practicing attorneys have all acknowledged the integral role early data assessment (EDA) plays in preparation for document production in civil litigation. EDA is an essential discovery readiness tool for any entity that seeks to reduce labor costs tied to document review, heighten search protocol defensibility or save time in the period prior to review and production.
By using EDA, organizations tasked with the production of documents (not limited to production within discovery) are able to drastically narrow immense sets of potentially relevant information into smaller, refined clusters of pertinent data. That data can then be feasibly analyzed with test search terms and other input parameters. Comprehensive EDA platforms are becoming a staple in efficient data management toolsets because of the wide array of associated benefits appreciated by many proactive corporations and their counsel.
The difference between EDA and ECA (early case assessment) is important. Whereas ECA involves the entire case—before discovery and beyond data analysis—EDA is a smaller, albeit important, subset.
For example, ECA encompasses broad notions of legal representation—fact finding, venue research, liability analysis, damage assessment, adversary investigation and litigation budget forecasting. EDA, on the other hand, aids in fact-finding and narrows the scope of important discovery data early on. During the process of EDA, data is separated between critical and non-critical groupings, the number of key players is narrowed, key search terms are tested and critical case arguments are identified. In addition, EDA is utilized in settings other than litigation. First, in regulatory matters, EDA is used to identify data quickly for responding to inquiries. Second, in policy audits, it enables parties to confirm their compliance with internal policies. Third, EDA is used to assist with internal investigations to answer questions regarding who, what, when, why and how.
Faced with discovery issues of all shapes, sizes and interests, many attorneys wonder which matters are best suited for EDA. While the answer depends on the circumstances of the particular matter, it is helpful to consider the following criteria:
- The data volume and type
- Maturation of case strategy
- Value or liability of the case
- Projected costs of processing and review
- Type of key players or fact witnesses identified
Additionally, EDA technologies can be most helpful when you are:
- Unsure of your case strategy
- Unfamiliar with your document set content
- Lacking internal technical resources to evaluate the data before processing
- Anticipating that traditional document review and native file export may not be sufficient
- Able to devote ample time to the discovery process prior to production
The cost of e-discovery continues to be one of the highest-ticket items on litigation receipts. Law firms and corporations, therefore, have an enormous stake in taking action to reduce the costs and time spent on legal discovery matters. EDA technology has proven vital in the management and reduction of costs associated with discovery, particularly with regard to document review and production. EDA also is useful to enable companies to make sound and defensible decisions, and it has proven to reduce data stores and provide key insight into settlement negotiations prior to discovery deadlines. There are several benefits associated with the use of EDA. Most critically, it provides an early window into liability and damage assessment, as well as the likely scope and expense of discovery. The information and analysis available through EDA allows a party to reduce its costs and increase defensibility by prioritizing and focusing on data most likely to be responsive in the further stages of processing and review. In addition, the use of EDA promotes collaboration and cooperation between opposing parties and counsel.
When used in litigation, EDA is most useful at the forefront of the pre-discovery landscape. It should be used as a tool that prepares litigants for the scope of discovery with which they will deal, and as a source of knowledge that imparts insight about the data that will be sought. The results of EDA are: dataset and custodian reduction, search term development, search defensibility, and litigation readiness. These results benefit parties from the earliest stages of litigation to the latter stages of trial after the EDA process is over.
Not only can EDA facilitate the entire production process, it also provides an invaluable early window into document review, which allows counsel to furnish “substantial human input on the front end [of automated search technology]” as suggested by the Best Practice Guidelines of the Sedona Conference. EDA is more than a technology- it is a methodology that involves people, processes and the right technology.
To experience the widespread benefits described herein, all types of entities that seek to proactively manage document review should consider the implementation of a comprehensive EDA solution.