Clearing the Fog of War, ECA Fundamentals Series Part 1

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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 Litigation

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:

  • What are the actual underlying facts?
  • What are the legal and financial risks?
  • What evidence might exist? With us?  With them?
  • How strong or weak of a position are we in overall?
  • What will it cost to proceed, and how much should we spend?

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.

Three Goals, One Name

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:

  • Traditional Early Case Assessment
    • Traditionally, early case assessment was and is focused on reducing uncertainty about the risks and costs associated with a new legal matter to inform a decision about how to proceed; because doing so now often requires reviewing relevant ESI, eDiscovery processes have become essential for effective traditional ECA
  • Downstream Activity Preparation
    • Finally, reducing uncertainty about downstream attorney review and eventual production has also been lumped under the ECA banner, including testing and refining searches and filters, evaluating potential workflows, and estimating needed resources

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.

About the Author

Matthew Verga

Director of Education

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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