A multi-part series on the fundamentals eDiscovery practitioners need to know about effective early case assessment in the context of electronic discovery
In “Clearing the Fog of War,” we reviewed the uncertainty inherent in new matters and the three overlapping goals of ECA. In “Sampling a Well-Stocked Toolkit,” we began our survey of available tools and techniques with an overview and with a discussion of sampling. In “Searching and Filtering for Fun and Profit,” we continued our survey with a discussion of searching and filtering options. In “Threading, Duplicates & Near-Duplicates,” we turned our attention to tools for handling threading and duplicates. In “Advanced Analytic Tools,” we conclude our survey of tools and techniques with a review of advanced analytic tools and TAR workflows. In this final Part, we discuss how to bring these options together.
Our survey of tools and techniques for early case assessment has revealed a wide range of available options, each with different strengths and intended applications, but achieving effective ECA is not a question of applying as many of these tools and techniques as you can. Rather, it is a question of selecting the right ones to best serve your primary goal – whether that’s Traditional ECA, EDA, or Downstream Prep – and then building on those initial steps in a rational way to eventually achieve all three goals over the course of your ECA efforts.
To return to our earlier analogies, it is a question of aligning the right lenses, in the right order, to peer through the fog of war and bring your informational quarry into sharp focus.
When your top priority is pursuing the Traditional ECA goal, the first question to ask yourself is how much knowledge you have of what you expect to find. If you know a lot about what you’re looking for in your ESI (e.g., from thorough custodian interviews, from overlap with prior legal matters, etc.), you may be able to jump right to searching for it. If you don’t know a lot about the materials you’re seeking, which is more common, you will want to start with one or more of the tools and techniques best suited to revealing unknown unknowns:
Once you start to get a handle on what you are really seeking (or if you already knew), you can transition from these initial, exploratory efforts to more targeted search and filtering efforts, which can quickly find relevant materials and hot documents. And, as you find relevant materials to review, thread and duplicate management tools can be used to find related materials to review for context as needed (e.g., related emails, alternate drafts, etc.).
If your top priority is pursuing the EDA goal, finding individual documents and facts is less important than ensuring sufficiently complete collection has taken place and that any filtering applied during processing has not been excessive. In such situations, your focus should be on tools and techniques that help you see the big picture of your ESI collection and reveal the gaps within it:
Formal random sampling can also be useful during EDA, particularly if there are disputes over the appropriate scope of preservation and collection that need to be resolved. Sampling to estimate prevalence can be used to apply relative value determinations to different sources and tranches and to estimate costs and benefits associated with specific proposed work.
When your top priority is pursuing the Downstream Prep goal, you are concerned with learning about what happened, but only insofar as that informs what must be reviewed later and how it should be prioritized. And, you are concerned with understanding the properties and the big picture of the ESI you’ve collected, but only insofar as that informs what tools and techniques for culling you should choose and what review methodologies are likely to be effective. All of the tools and techniques discussed so far can be leveraged to assist in the Downstream Prep effort:
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