Early case assessment (ECA) describes the process by which litigation counsel consults with IT personnel who understand a client’s network infrastructure.

ECA’s purpose is to determine, in light of the legal allegations and probable defenses, the likely sources of electronic discovery and the most efficient means of preserving electronically stored information (ESI) for production later in the case.

The goal is to enable a party to implement defensible litigation holds and avoid distracting spoliation claims – and expensive discovery do-overs – all with minimum disruption and expense. That’s the theory, anyway.

Let’s examine a hypothetical case involving claims against a company that one of its new employees absconded with trade secret information from her prior employer, which she is now using to gain unfair competitive advantage in her new sales position.

ECA might determine that likely sources of relevant electronic information include the new employee’s company laptop, her email account, her personal folders on the company’s “K” file server and her shared folders on the company’s “Q” file server.

These sources are preserved, copied or imaged as appropriate to the case, while the rest of the company goes about its business uninterrupted. ECA has saved thousands of dollars, supports a defensible litigation hold strategy and blocks second-guessing months or years down the road. ECA is a success!

This is an amusing fiction. The truth, however, is that for nearly all clients, most of the potential savings were squandered long before the case started. If e-discovery savings and efficiency are the goals, ECA comes much too late.

It’s remarkable that it took so many years for the notion of ECA to catch on. In part, this was because during the era of paper documents, litigation holds were comparatively simple. Think “stop shredding the files.” Also, the total number of documents was a tiny fraction of the electronic documents existing today. Once a lawsuit began, attorneys could wait six months or a year to see how the case shakes out before beginning the expensive discovery process.  

The complexity, volume and fragility of electronic documents have robbed attorneys of the opportunity to start thinking seriously about discovery until after initial motion practice and settlement discussions. Over the past decade, plenty of clients – and their attorneys – have learned the hard way that waiting until deep in the litigation process to think about electronic documents is punished by added expense, allegations of spoliation and business disruption.  

Few clients react with understanding to the news that, since their important live files were deleted some months after the lawsuit started, they must now restore archived records at tremendous expense. ECA is meant to provide the answer.

The problem is, ECA must work within the network systems and infrastructure the client has at the time the litigation commenced. In too many instances, that network was built without a thought for how it might affect the client’s litigation budget. Too many documents are saved for too long.

Documents are disorganized. Information sources, while technically within the control of the client – meaning the judge would see it that way – are in the hands of third parties or employees who are ill-equipped to preserve or produce records at a reasonable cost. Third-party contracts with payroll, Web site and other record-keeping organizations do not address e-discovery responses or pricing.

Practical litigation holds are unachievable because of basic shortcomings in systems and software designed without e-discovery in mind. The most common example of this is email archiving. Many archiving platforms were designed for operational archiving, where most users search for a single old email. The systems are not set up for batch searches and react poorly to the common litigation-related request for all emails sent from or to a particular person.

Translation: Search and production is unduly expensive. Worse, some email archiving solutions don’t have the ability to selectively stop deleting aged email. This means that a litigation hold affecting a handful of employees requires either halting routine email destruction processes for the entire company – not an ideal solution – or periodically force-archiving selected users.  Ironically, many archiving platforms are litigation-ready, but these features are not seen as an advantage by the IT department during the selection process.

If counsel experienced with the demands of litigation were involved at the earliest stages of network development and in the selection of new software, many of these expenses could be mitigated or avoided altogether.  

For large companies, litigation is part of doing business. To conserve resources, litigation document planning, as part of or independent from document retention and destruction protocols, should be a regular concern. Companies that wait until the so-called early case assessment phase of litigation are wasting their money.

The good news is, most litigation counsel can help out, even if they know little about electronic records. It just takes getting counsel involved with the client’s IT purchasing decisions. So, spread the message: Early is too late!

Eric P. Blank is the founder and managing attorney of Blank Law + Technology PS. His practice focuses on electronic discovery counseling, e-security response planning and implementation, investigations and computer forensics. Mr. Blank has conducted more than 300 investigations into computer and software-related torts and employee misconduct since 2001 and has frequently been a court-appointed special master or neutral in e-discovery matters.