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The Case for Early Case Assessment
By Ramon Nunez

What you don't know can hurt you. Early last year, Merck stood accused of covering up known dangers associated with the medication Vioxx. Well into litigation, emails were discovered that clearly implicated officials within the organization. The company now faces about 7,000 pending state and federal lawsuits and its liability has been estimated at up to $50 billion.

If Merck's legal counsel had had access to effective eDiscovery analysis software, they would have been able to discover early on that a cover-up had occurred. Early case assessment may have allowed those lawyers to reach an early settlement, minimizing financial loss, and preventing a very damaging public trial.

Companies that are unable to quickly analyze their electronic documents are extremely vulnerable-without sufficient understanding of their legal position, corporate counsel is paralyzed, or worse, misled.

The current approach to e-discovery offers little relief-it is a process dominated by a parade of outsourced service providers, and it relies largely on manual approaches and methods that are error prone, time consuming and simply not scalable to address the exponential growth in content being created and stored electronically.

Email is now the #1 source of evidence in corporate legal matters. As a result, the eDiscovery market is growing by 60% annually. eDiscovery has become the most costly component of the legal and investigatory process, and as it grows in complexity, the associated costs and risks continue to soar.

The ability to assess cases at their earliest stages can reduce overall e-discovery costs by as much as 75%, and can reduce the typical document review load by as much as 80%--significant considering that analysts forecast e-discovery software and services to be a $7 billion dollar market by 2007.

However, most corporations currently lack the ability to conduct early case assessment. Today, most corporations facing litigation must outsource e-discovery work to outside service providers, which means handing over hundreds to hundreds of thousands of emails and documents with no knowledge of what information they may contain. Once the documents are processed and ready for review, the attorneys overseeing the project will often turn to contract lawyers, paralegals and low-level clerks to review each document one-by-one and at a frantic pace in an effort to meet a court-imposed deadline.

Even the most prepared firm lacks the foresight to know what will truly be unearthed. As a result, many of the messages and documents may appear nonsensical to the hired reviewers-either completely irrelevant or read out of context. When a relevant message is detected, the reviewer has little way of knowing how the lone email might fit into the overall picture. Armed with little knowledge, the reviewer struggles to identify documents that may be of importance. Those documents that are flagged are routed to the legal team, which then attempts to make sense of the poorly filtered stack of potential evidence.

The legal community is slowly awakening to the harsh reality that the current e-discovery process is slow, overly complicated, costly, error prone, and fraught with risk. While most subpoenas come with short time frames in which companies must produce information, current manual review processes are too slow and tedious to allow for a comprehensive understanding of the data at hand.

Making the Case for Early Assessment

Some level of analysis can-and should-be conducted at every step of the electronic discovery process. Efforts at analysis ought to begin with the earliest attempts to identify sources of potentially relevant information. The efforts should continue all the way through the selection of which materials to present at trial.

However, today's manual review process does not allow for analyzing data at the beginning of a case, or even as a case progresses. Instead, analysis is done only after every single document has been read and coded, one-by-one, out of context.

When attorneys and their support staff can use software to begin assessing data early in their handling of the case, they can do a better job of prioritizing and triaging the data. Early case assessment technology enables corporate counsel or law firms to quickly find and drill down on the most relevant case material during early the earliest stages of a case, often within hours of processing content. This gives them the opportunity to focus efforts on the data that is most likely to mean the most to the case at hand.

At the same time, an effective early assessment could lead counsel to the conclusion that as much as 80% of the data they processed is irrelevant and doesn't need anything more than a cursory examination. Such early insight can inform initial strategic decision-making and drive more favorable case outcomes.

Another reason corporations should be quick to adopt strong early case assessment tools is because prosecutors already have them. Government agencies such as the Department of Justice and state attorneys general offices are adopting early case assessment solutions out of necessity-they simply don't have the labor or financial resources to sustain long corporate trials. They need a tool that will allow them to get to the heart of a case quickly. Corporations that can't assess their own data as quickly as opposing counsel are at a potentially devastating disadvantage.

Early case assessment tools can also help corporate counsel facilitate better legal relationships with government agencies. For example, the success of mergers and acquisitions depends a great deal on whether or not a company is able to work productively with the FTC and produce timely results.

Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), agencies have the time and ability to challenge mergers prior to consummation-beyond the standard 30-day waiting period-when additional information is needed to perform sufficient antitrust review. However, as the nature of documents and information has changed, corporations are increasingly burdened in responding to these second requests, and agency staff faces greater challenges in reviewing and analyzing resulting documents.

Corporations currently have only two months to work with the FTC to produce all documents relevant to each specific second request. These tight time constraints make it difficult for the FTC and corporations to work together to determine exactly what information should be requested. Early case assessment software can give legal teams control over a process that is rapidly becoming unmanageable. Counsel can conduct an initial assessment of materials at the outset of the review process and then work closely with the FTC to recommend and negotiate what information should be requested.

Finally, early case assessment analysis can be used throughout a case, to quickly reconsider the full base of case information relative to new developments or information. This allows corporate counsel and law firms to revise sets of relevant and important materials to ensure their completeness, without the time and expense of exhaustive re-review.

Assessing the Solutions

A strong early case assessment analysis technology must be first and foremost easy to use. Traditional analysis approaches call for constructing basic preliminary searches to see what the data contains. These random stabs in the dark usually result in either getting nothing back at all or getting thousands of largely irrelevant hits.

Early case assessment can only be successful when traditional text search tools are combined with guided analysis capabilities that allow users to scan the search results by intelligent sub-groupings such as topics, threads, people and concepts. Dynamically generated high-level views of the search results can help an investigator develop a glossary of key terms while determining if a set of search results requires further scrutiny.

This combination of searching and browsing not only finds relevant documents quickly, but may also reveals related emails to provide an expanded view of the "dialog" on a specific topic or concept. Graphical views of threads and communication patterns between people that would be virtually impossible to create with current methods can be created instantly. These views quickly reveal where to look for important documents and messages in a way that is easier and more intuitive than simply reading individual items.

A useful early case assessment solution must also provide multiple layers of visualization to allow users to see pictures of data, not just rows and rows of text. Such technology can show relationships between people, between items in a collection of data, and between topics, to give just a few examples.

Two of the most effective types of interactive visualization are social network analysis and context group analysis. A social network graph might show who was discussing a particular topic during a specific three-month time frame, and then be adjustable to view how those communication patterns changed over time. A context group visualization can employ the same level of depth and interactivity to show how messages and message threads are related to each other.

Early case assessment solutions are most useful when combined with powerful document review capabilities. Corporate legal teams and law firms need to be able to quickly uncover critical case content up front, before manual review has even started, and then organize the content for smarter, less costly review. Of course, a strong review application must contain all of the functionality of today's most popular eDiscovery review applications, such as prioritization, flagging, deduplicaiton, project management, and multiple workflows.

The marriage of early case assessment analytic capabilities and strong review functionality can not only limit the scope of a case at its earliest stages-it can also pave the way for a smoother, more productive review. Employing analytics during the review stage enables reviewers to address content in priority order, placing the greatest focus on areas most likely to contain important information.

Ultimately, applying early case assessment technology is the only way corporate counsel and law firms can streamline the now overwhelming eDiscovery process while improving efficiency and maintaining more control over their own information. In the end, it can save millions of dollars and cut through mounds of frustration.