Early Case Assessment – Before 26(f)

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01Aug2012

Early Case Assessment – Before 26(f)

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By Samantha Green, Esq.

Using early case assessment (ECA) to prepare for the 26(f) “meet and confer” helps practitioners address the issues and challenges around preserving discoverable data and aids development of a “discovery plan” which establishes the foundation for effective discovery. The more you know early on about the location and volume of your electronically stored information (ESI) and the client’s preferences regarding document review, the better prepared you will be to conduct a successful 26(f) conference and face the challenges that surround the collection of ESI.

“Meet and Confer” Pitfalls

The meet and confer continues to be a challenge for many attorneys. An unsuccessful meet and confer can damage an attorney’s credibility in the eyes of his client, frustrate the judge and opposing counsel, and result in burdensome costs. When the two sides fail to hammer out details during the meet and confer, they will often find themselves spending more time arguing about discovery than the merits of the case itself.

Failure to communicate about the data pool could result in relevant ESI not coming to light. There is also the risk that non-responsive information may be over-produced. When this happens, it can be difficult to determine whether the monetary and legal magnitude of the case is proportional to the expenses associated with e-discovery. ECA can help you find the right balance that will result in cost savings without increased risk or decreased defensibility.

What ECA Tells You about the Data, and How It Can Reduce Costs

There are three key areas where ECA tools can give you a big step up in approaching a 26(f) conference:

  • Knowing the scope of the data set will allow you to more accurately estimate the processing, hosting, and review costs.
  • Knowing what types of data need to be reviewed will help determine how long the review will take so that reasonable timelines can be established. This information is critical in negotiating production dates, and it may also help determine if reviewers with special skills are required.
  • Sampling key search terms in advance allows for better negotiation of final terms and may provide support for the use of clustering or other technology-assisted review workflow.

ECA tools also have the potential to help make meet and confer preparation and execution a more automated, step-by-step process. Tools like Fios Clarify, for example, allow reports to be run on a broad variety of metrics, such as the number of Excel files, emails, or unprintable files you have in your entire data population. Clarify also allows all searches and results to be saved so that the sampling process is well documented – making it both repeatable and defensible.

Instead of processing all the data associated with a case, which can be costly, you can use ECA tools to cull the data by custodian, date, file type, and/or key terms. A good tool will allow you to run searches and either bulk tag or tag individual documents that should be further processed and loaded on the chosen review tool. If you cull the data pre-processing, you eliminate the need to process, host, or review the entire population and thereby save your client significant time and expense.

Seize the Strategic Advantage

Finally, keep in mind that effective use of quality ECA tools doesn’t just save money. It can also give you an important strategic advantage in pursuing the case. Knowing your client’s data set very early in the discovery process allows you to be much better prepared not only for negotiating custodians and search terms but also for persuasively arguing the legal merits of the case. Simply put, these tools are easy to use and economical, put you in a much stronger position when conferring with your adversary, and ultimately save you and your client many potential headaches.

For additional information on using ECA to prepare for 26(f), download the white paper here.

Author: Samantha Green, Esq., e-Discovery Counsel, Fios, Inc.

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