Wednesday, July 9, 2008

Early Case Assesment

I do agree that the costs associated with electronic discovery dramatically affect the decision of whether or not to move forward with litigation. As we all follow industry news, General Counsel for most corporations are making a concerted effort to learn more about things that can be done in-house before the on-set of potential litigation to control costs associated with identifying, archiving and preserving data for outside counsel to review. In our own business we have begun to see a shift from the Law Firm selecting vendors to the corporation itself going out and doing vendor selections. Thus this discussion I felt needed some attenetion as it is apparent to me that most ediscovery solutions are catered to larger cases and larger companies. What about the smaller cases that need the same amount of work if not more to effectively prepare for litigation; how do they stay within a reasonable budget to justify the expense versus the ROI. This is where the lawyers get involved and have to change the way in which they prepare for litigation. No longer will it be accepted that you can just go in and collect everything from every custodian or source involved, especially now with electronic data and its unknown effect to the litigation.

Traditionally a Lawyer will select a vendor based on their comfortably with the vendor (including past history of success) and the experience of the vendor to perform services under duress. Today’s market though requires now that Vendors, as lawyers and other professionals, continually re-educate themselves of the best practice methods for handling a variety of case work and keeping up with court decisions to understand what methods are becoming widely accepted by the courts as reasonable. Reasonable has proven not to be directly correlated with a dollar value; therefore what may consider unreasonable based on real world expenses (i.e. ROI) must be identified early in the decision making process. This will determine whether a client proceeds with propunding litigation or works to mediate a settlement.

Law firms that can provide effective early case assessment to their clients seeking litigation will gain more credibility than those that continue to follow the methodology of "collect everything" until the budget runs out. Early case assessment includes the ability to identify the facts of the case through analysis of the custodians, concept and thread analysis of emails and data sampling other electronic data to determine the best case strategy. This should be done in order to better prepare the client for potential expenses that will arise should litigation be propounded. What is the benefit in propounding litigation when the case is worth $1M and it requires spending $150K just to process data for review (not including attorney fees)?

Most firms today don’t have the capability to provide such a solution as it requires the experienced expert to perform the assessment. The expert is typically a seasoned IT Professional or someone with a background in Computer Forensics. There is also the upfront expense of using various SaaS (Software as a Service) to analyze the client data and create the custom reporting required of the lawyer to determine and build the case strategy.

It is our duty as professionals to educate our clients early in the process of their potential exposure; this is accomplished thrrough early case assesment.

"I can show a child how to eat....though as time passes I must also show the man how to fish..."