10 Steps for Effective Early Case Assessment and Happier Parties

13
Apr
2011

Eddie Sheehy

Leading legal teams and litigation support providers are increasingly using investigative review techniques to perform genuine and effective early case assessments (ECA) for their clients. These teams provide their clients with more thoughtful options and greater insights into cases earlier in the litigation process, before significant costs have been incurred.

This trend towards enabling a more thorough evaluation of data early on is enabling litigation support vendors, law firms and in-house counsel to quickly identify critical evidence that the case may turn on, rather than merely figuring out how much data there is.

His Honor Judge Simon Brown QC – Specialist Mercantile Judge in Birmingham, UK – is famous for saying that virtually every case he has looked at turned on fewer than five to ten documents.  ECA should be about identifying these 5-10 documents and enabling the parties to understand the context of those documents in a matter of hours or days, rather than weeks or months.

By following the steps outlined below, companies can determine at a much earlier stage if the facts of the case support a potentially positive outcome or if settling early is a better option.

Step 1: Understand Your Case
Understanding your case is the most critical step in this entire process and can be achieved by reviewing the five W’s – What, When, Who, Why and Where. Starting with the ‘What’, what realistically happened in the given situation? The ‘When” should answer the question of timeframe in terms of when did this happen and how long has it been going on for? The ‘Who’ simply asks who the key custodians might be; starting with fewer custodians is better early in the game. This brings us to the ‘Why’ – why would participants want to gain this information? Finally, it is important to ask ‘Where’: where do you think this evidence could be lurking? Answering these five W’s will set you off on the right track to effective and efficient ECA.

Step 2: Undertake Fast, Targeted and Forensically Sound Collections
The best way to approach collection varies depending upon a company’s IT systems and any pre-existing collection and storage technologies. By leveraging advanced technologies to assist in the collections process, there should not be the need for an expensive forensic practitioner. The important thing is to ensure the technology used to collect the data is up to date and forensically defensible.

Step 3: Use Fast and Scalable Processing Tools
The latest eDiscovery software is capable of processing incredibly large datasets very quickly and smaller datasets in little to no time at all. By being able to rapidly process the most readily available information, legal teams can begin investigating the most relevant data immediately, which reduces both time and cost. Without a modern processing tool, the entire process will be inefficient and possibly ineffective by missing key documents or failing to cull irrelevant documents sufficiently to reduce the time and cost involved in the review process.

Step 4: Use Targeted Searches to Thoroughly Investigate Your Case and Key Custodians
This step will identify the 5-10 documents on which the case will turn.  Start with your initial ‘what’ analysis and run a potentially relevant search on a project or product name, a person or place etc. If you only have vague details, try to come up with at least a handful of words.

1. From the results of this initial search you might consider these actions next:
   • Look for custodians which have exchanged emails
   • Look at a list of all email addresses and domains to see if anyone is talking about this topic with external parties
   • Scope your search to when you think these events were happening, or plot findings against a timeline
   • Find similar documents to the initial ones you have uncovered
   • Identify which custodians have received or sent similar or duplicate key emails, documents or attachments
   • Look at listings of every word in the collection to see if any other facts emerge
2. Target Suspicious Behavior.Another approach is to target “suspicious” behavior. This entails looking for people who: 
   1. Blind copy external domains
   2. Send encrypted content
   3. Send zip containers with key information to outside parties
   4. Re-name documents and forward them under some type of innocuous name
3. Look at Deleted Information
4. Conduct a Domain AnalysisConduct a domain analysis to incorporate domains you would not expect to see or that you might find of interest, as well as external e-mail accounts (e.g., Gmail, Yahoo! Mail or Hotmail). If the case involves a third party organization, it could pay to look at all the emails going to that organization in the lead up to and after the particular event.
5. Examine Relationships. After undertaking the relevant searches discussed above, it may be useful to display a relationship diagram which identifies the key players and their key relationships. This would identify the individuals they talk to most, or some individual emailed infrequently, or an internet based email account that seems out of place. Review the email content and work out the relationships between individuals. This can have key consequences in how a case develops.

Step 5: Establish the Context of Your Key Facts
Once you have found the facts, it is critical to understand their context. Using the initial relevant information as a base, extrapolate a number of relevant searches which will bring to light email conversations between parties, document clusters, etc. to show a greater level of context around the core items. This step should lead to the identification of hundreds or thousands of documents which provide context for the five or ten central records identified in Step 4.

Step 6: Navigate and Organize the Data in Seconds
The ability to quickly navigate and interact with data is vital, as it permits seamless legal analysis during the earliest of stages.  Knowing this means that any useful eDiscovery tool must be able to work quickly with indexed data, and must be flexible enough to keep up with and adapt to the thought processes of the lawyer or litigation support personnel using it.

Step 7: Seamlessly Add Additional Sets of Eyes
After quickly reading through potentially related documents, it is important to bring in additional people to look through some of the actual documents for extra information and to ensure nothing was missed. Keep in mind that this step is an extension of the initial investigation rather than a full review.

Step 8: Undertake a Rapid First Pass Review
To carry out this next step effectively, start by dividing the data into smaller parcels and distributing them appropriately. Have review teams look for results which are relevant to the legal team’s strategy, rather than trying to solve the entire case themselves by locating a ‘smoking gun’.

Step 9: Consider the Metadata as well as the Data
Studying the metadata is just as important as studying documents/email content. The strength of a matter will often depend upon metadata specifics, seeing that they are the first things regulators look for in contract investigations. It is essential to ensure that your eDiscovery tool is up to the task as many only provide information on basic metadata whereas harder to find metadata specifics often provides the most crucial evidence.

Step 10: Iterate the Process
By taking an iterative approach, you will be making decisions based on facts, not statistics. It will enable you to shape the investigation, prioritize your custodians, scope and re-scope your time range based on the information that you uncover, and expand or narrow the content and the team as your case evolves.

It is no surprise that by thinking strategically, utilizing the most advanced technology, and adding doses of simple human intelligence along the way, key facts, documents and overall context become easier to find and understand.  The above techniques permit legal professionals to use their proficient skill set to the best of their abilities, while improving the outcome for themselves and their clients by identifying the most relevant documents earlier in the litigation process than ever before.