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It has recently become clear that a new breed of early case assessment (ECA) is emerging.

In recent years, many  eDiscovery vendors have focused on ECA as a means to trim down data volumes as fast as possible. As a result, the potentially most insightful (albeit expensive) attorneys only see the data after it has been cleaned. The argument, of course, is that previewing pre-cleaned data is not worth the time of a $500/hour attorney. If they read all data in a linear fashion, that would be valid reasoning. I’ll call this scenario ”Quantitative Early Case Assessment”. Examples of technology to support this approach are:

• Smart identification of custodians and data locations with automatic legal hold interviews. During the legal hold interview, software (like ZyLAB’s) can provide the customer with interview tools to determine a (very) early case assessment. Such interview questions are based on ABA best practices for ECA.
• Automatic and recurring collection of data, not only by location, file name, extension, and MIME type, but also by using full-text search to collect only relevant documents that match the negotiated Boolean.
• Exact de-duplication: NIST, in-house NIST, against other custodians, within custodian, and in production.
• Support in the review process for batch coding in the case of email threads, related documents, (near) duplicates, etc.
• Organizing review documents in groups with Machine Assisted Review technology to identify potentially privileged, confidential and responsive documents.
• Automatic redaction.

But there are many cases where a more qualitative approach can be very efficient and valuable to a $500/hour attorney. This is sspecially when negotiating a settlement—which  happens in 97% of all cases. In this scenario, parallel to the quantitative apporach described above, a team of attorneys (often mediators) searches and analyszes the data to look for strong evidence that will allow them to accelerate the negotiation and settlement process with the opposing party. All data that is ingested and processed is automatically enriched with advanced content analytics and is available for in-depth search and advanced analysis and visualization. Data can be mapped against the claims and relevant documents can be found quickly and easily. In addition, valuable insights gained from “the earliest early case assessment” help steer the eDiscovery strategy and budget, and minimize the legal risk, exposure and expenses from later stages.

Using this parallel approach, often a settlement is reached well before the quantitative data processing work is done and clients are saved a lot of money. There are more and more high-end law firms who prefer to make money providing valuable legal advice to their clients (for instance in a settlement process), which also has a much higher margin to them than a low-value and low-margin document processing and review services and which also results in happier (returning) clients.

Yes, I can see why Qualitative Early Case Assessment  is giving Quantitative Early Case Assessment and run for the money!