When planning a dinner party, the typical process involves identifying what people will eat and drink at each “stage” of the evening.  Perhaps one starts out with appetizers and a cocktail when guests arrive before sitting down for soup or salad (in the US, at least) when the meal begins, often with a buttery Chardonnay or dry Sauvignon Blanc.  Then comes the main course, perhaps with a nice red wine (Chianti for some), and finally dessert – which can go quite well with a Muscat, some port or even ice wine for those of us out here in the Bay Area.  As part of the planning process, it is important to know what one is serving as an appetizer (Humboldt Fog cheese is hard to beat in my book) in order to know what to serve as an entrée (and vice versa); for example, no self-respecting chef would be caught dead serving teriyaki steak skewers as an appetizer when filet mignon is the entrée.

Now imagine cooking a meal where you did not know what you would serve as an entrée until after the soup/salad course had ended.  You would be forced to quickly decide what to serve, run to the store to buy supplies and then cook, arrange and serve everything – all while your guests waited patiently and continued to drink your (quickly dwindling) stock of wine.  Such an approach would be ridiculous, right?  At a minimum, it would result in an exceedingly long meal which would no doubt annoy guests.  And depending on which bottles of your wine guests stumbled onto, it could also be very, very expensive…

Preparing a meal is, oddly enough, not terribly different from eDiscovery: identification/ECA/preservation/collection is the appetizer, processing/culling is the soup/salad, review/analysis is the entrée and production (and presentation for outside counsel) is the dessert.  But unlike cooking where the entrée is typically the key step, with eDiscovery the “appetizer” is the most critical as it will dictate how all ensuing stages will develop, how broad they are, how long they take and, most importantly, how much they will cost. 

So why do most in-house eDiscovery practitioners and eDiscovery vendors have no clue what they are serving as an entrée until the soup/salad course is already over?  Put another way, why do they have no idea what their case looks like (including cost of eDiscovery, strategic approach and likelihood of positive outcome) until ESI has already been identified, assessed (ECA), preserved, collected, processed and culled?

As any good chef – knowing nothing about eDiscovery, of course – would tell you, a far better approach would be to figure out how things will go, what they will cost and what the ultimate outcome might be before the meal (or eDiscovery process) begins.  Or in eDiscovery parlance, conduct ECA at the very outset of the proceeding, before any ESI has been collected, processed, or culled.  When the “guests” in this case are concerned CEOs, CFOs and GCs, the steaks are simply too high to do otherwise (sorry, I couldn’t help myself).