November 2009 Blog Archive
ECA Deconstructed (Part 2): ECA is an Appetizer, Not an Entrée
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).
Posted by: Craig Carpenter on November 16, 2009, 3:11 pm | Permalink | Trackback
Twitter: A Powerful Communication Tool with a Dark Side (1st in a Series)
Twitter has gone so mainstream so fast, it is hard to keep up. Just how fast has Twitter spread? In 1H 2009, Twitter reached almost 11% of all active internet users, and more than 15% of adult internet users in the US will access it by next year; interestingly, most of this growth is being fueled by those over the age of 25. Considering the fact Twitter did not exist until 2006, this is nothing short of astonishing.
Why is Twitter so popular? Think of Twitter as email or IM on steroids in that thoughts, ideas and commentary can be conveyed instantly with a very wide audience (some Twitterers, like Ashton Kutcher, have millions of followers). Read an interesting book? You can Tweet about it from your laptop. See a great movie? Tweet about it from your iPhone. Attend a terrific panel session at the Masters Conference? Tweet about it from your iPhone, Blackberry or laptop (shameless plug – my apologies for that).
But as with many things, that which makes Twitter so powerful and popular also makes it potentially very, very dangerous and fraught with information risk. First, Twitter’s speed and breadth amplify communication velocity – which can be good when the content being communicated is appropriate and important, and bad (in some cases very bad) when the content is misleading, inaccurate, proprietary or fraudulent. Second, Twitter is not the most secure form of communication; Tweets and even Twitter accounts can be co-opted or faked, which can lead to all sorts of unintended consequences (just ask Tony LaRussa). Third, because it is so fast, Twitter lends itself to rapid communication that is often not reviewed – for accuracy, spelling, etc. – or otherwise proofread in many cases. And finally, because the length of each Tweet is limited to no more than 140 characters it is often difficult to convey context or exact meaning in a Tweet, which leaves interpretation to the mind of the follower (or millions of followers) – whose motives may be highly suspect.
In the next installment we will delve more deeply into the potential legal ramifications of Twitter, as the Twitter rage is far from over…
Posted by: Craig Carpenter on November 12, 2009, 2:25 pm | Permalink | Trackback
ECA Deconstructed (Part One): It’s Not “ECA” Unless it Happens EARLY
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.
Posted by: Craig Carpenter on November 2, 2009, 1:06 pm | Permalink | Trackback