Early Case Assessment – or “ECA” in common parlance – has become very popular in 2009; with even ECM vendors adopting ECA, some might say it has gone mainstream.  The reasons for this popularity are straightforward: the earlier one knows the critical details of one’s situation in a given matter the quicker one can 1) predict and define budget needs, 2) utilize appropriate resources, processes and tools to minimize spend, and 3) determine the strength (or weakness) of one’s case in order to ‘lose cheap early or win big late.’  The recipe for ECA is also simple: add one part assessment (the ability to glean key facts about a given matter) to one part analysis (having a knowledgeable person, typically an attorney, use such facts to form an educated judgment about a matter) and quickly stir (i.e. do both of these things immediately at a matter’s outset) and the result is effective ECA.

The problem with ECA as almost all vendors promote it today is that it’s not early.  These vendors promote ECA as part of the culling and/or review process, when ESI has already been preserved, collected, processed (typically by expensive third parties) and then loaded into these vendors’ “ECA” tools.  However, using the EDRM process as a roadmap it becomes abundantly clear that waiting until all of these steps have been completed is way too late, as in all likelihood weeks have gone by and hundreds of thousands if not millions of dollars will already have been spent – all before in-house counsel has any clue as to how their case should be handled or what it might cost.  That’s simply too long to wait.

There is a reason it is called “Early” Case Assessment: unless it’s done from the very outset of a matter, it isn’t ECA.  When should ECA be conducted?  As early as possible, ideally before any ESI has even been collected as this allows in-house counsel to collect only the ESI that is needed for any given proceeding, thereby saving millions that would otherwise be spent on collection, processing, and culling using most “ECA” tools.  Arguably more important, however, is the ability to assess one’s case within hours of an event’s beginning as this gives in-house counsel the ability to respond quickly knowing what the budget is likely to be and the strength of their case.  As with most things, ECA is all about timing – and in this case if it’s not early, then it can’t be ECA.