A multi-part series on the fundamentals eDiscovery practitioners need to know about effective early case assessment in the context of electronic discovery
In the early nineteenth century, the Prussian military analyst Carl von Clausewitz wrote of the overwhelming uncertainty inherent in decision-making during military conflicts:
War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty. A sensitive and discriminating judgment is called for; a skilled intelligence to scent out the truth.
By the end of the nineteenth century, the phrase “fog of war” had appeared as a shorthand description for this state of uncertainty, and this apt metaphor has remained in wide use to the present day, applied in every context from business to video games.
The fog of war is also apt shorthand for the state of uncertainty that exists early in a new legal matter. Whether you are gearing up for litigation, an agency enforcement action, or an investigation, you are faced with potential conflict and liability shrouded in a fog of uncertainty:
Early case assessment (ECA), fundamentally, is the process of trying to clear some of the fog of uncertainty around the answers to these questions and others like them. As litigation has evolved in the eDiscovery era, however, so too has the scope of what’s included in ECA.
The name ECA is now used to encompass not only the traditional ECA described above, but also what might better be called “Early Data Assessment” and “Downstream Activity Preparation.” All three goals are attempts to remove some of the fog by reducing one area of uncertainty:
The intersection of these three connected-but-distinct goals can make the ECA phase of an eDiscovery effort a confusing one for practitioners. What should I and others be doing to accomplish these goals, and how should we be doing it? How do we start to clear the fog?
In this series, we will attempt to answer these questions by reviewing the fundamentals that legal practitioners need to know about performing effective ECA in the context of eDiscovery. Topics will include sampling, searching and filtering, threading and duplicates, analytics, integrated workflows, and more, to equip you “to scent out the truth.”
Upcoming in this Series
In the next Part, we will begin our review of available tools and techniques with an overview of the options and a discussion of sampling.