Early case assessment (ECA) is a powerful tool for developing an overall litigation strategy at the start of a case. There’s no official guide to performing ECA and practitioners will put their own spin on the process, but these 12 steps are always a good starting point.
1) Assemble your team
Assembling the team means not just bringing in the right people at the law firm, but also at the client. For corporate clients, appropriate staffing will take into account decision-making authority and discovery management needs. These responsibilities may all sit with in-house counsel, but more often are split among multiple people. An IT staff member – or in the absence of an IT department, a tech-savvy employee – should be tasked with providing eDiscovery tech support. Finally, firms without in-house litigation support staff should contact their preferred eDiscovery provider or begin the provider selection process. Bringing your eDiscovery provider staff on board at this stage can be valuable as they will learn your case objectives as you develop them.
2) Summarize the pleadings and the parties
Begin by reviewing the pleadings and summarizing the claims, defenses and counterclaims. Diagram connections among the parties and with insurers or other relevant third parties; in this regard, consider possible third party discovery requests. Gather background information on the client’s financial situation and corporate structure, including organizational charts for the departments or other business units involved in the underlying dispute. Defendants will additionally want to analyze jurisdictional defenses, including personal jurisdiction and statutes of limitations; consider venue transfer and motions to dismiss on the pleadings; and evaluate the jury pool.
3) Draw up a case calendar
Trial and discovery deadlines are the frame of the case schedule. Equally important for planning purposes are interim deadlines negotiated by the parties, task completion benchmark dates and the timeline for settlement discussions. Many federal district courts have pertinent local rules or model scheduling orders; for example, specific deadlines relating to eDiscovery or a required mediation process.
4) Identify likely fact witnesses
With the client’s assistance create a spreadsheet of people with knowledge of the underlying facts. For employees, include title, dates of employment, department, responsibilities, office location, contact information and other useful personnel data. Use the spreadsheet as a foundation for developing a witness interview plan as well as a preliminary deposition list and order. It will also be useful later on for conducting custodian interviews during eDiscovery.
5) Evaluate the need for expert testimony
The next step is to identify potential areas for expert testimony and begin the expert witness search. It’s important to start this process early. Retaining the right expert may be a straightforward or even routine matter. In other cases, subject matter and degree of specialization make finding a suitable expert difficult, require time consuming research and potentially even lead to a “race to retain.” For budgeting purposes, draw up an expert testimony cost projection.
6) Investigate the facts
Work with the client to investigate the underlying facts of the case. Where possible interview the key players in the dispute. Use the interviews as an opportunity to evaluate witness credibility and identify potential factual inconsistencies. Where appropriate to the matter type, conduct background checks on the client and witnesses using public records. Summarize the facts in a memorandum and use a timeline to organize the chronology of events.
7) Identify and review key documents
The purpose of this step is not to launch the eDiscovery ship, but rather to hone in on a small number of obviously important documents.
Critical documents are frequently identified in or readily apparent from the pleadings or initial conversations with the client (e.g., personnel records in an employment case, the contract in a breach of contract action, the patent and file wrapper in a patent infringement case). Other key documents will be identified in the normal course of the prior step of investigating the facts. Coordinate with in-house counsel or other appropriate client contact person to quickly obtain review copies of these documents.
Determine whether key documents are easily accessible or if a forensic analysis will be required to find key documents.
8) Develop a discovery plan based on early data assessment
Early data assessment (EDA) is essentially a parallel fact investigation into the client’s information systems, especially its electronically stored information: data sources, volume, technical and logistics obstacles to collection, etc. It further incorporates an evaluation of available eDiscovery technology tools for data handling from collection through review and production. It’s important to evaluate technical capabilities, cost and defensibility risks.
Comprehensive EDA provides the information needed to draw up a realistic discovery plan that a) includes a preservation protocol; b) prioritizes and delineates the scope of data collection; c) deals with practical issues like budget projections, scheduling, provider selection and staffing needs; and d) anticipates early discovery motions, such as seeking a protective order or cost-sharing.
9) Assess settlement options
Assess the possibility of settlement in light of the pleadings, the potential gain or exposure, the history between the parties and verdicts or settlement amounts in similar cases. Talk to the client about likely money demands and what they consider an acceptable range for negotiations. Ask about strategic business considerations that will factor into their decision-making.
10) Analyze key legal issues
The law corollary to the fact investigation of step six is legal research into, and analysis of, issues raised by the pleadings and preliminary fact-finding. Identify and weigh the strengths and weaknesses of both your arguments and your opponent’s, including anticipating dispositive motions. The discovery plan developed in step eight may suggest procedural issues to pursue in addition to arguments on the merits.
11) Formulate case themes
What’s your story? Building on the fact and legal investigations, formulate case themes. Make a realistic assessment of the strengths and weaknesses of your case, including witness credibility and evidentiary issues. Identify gaps in your case that require further investigation to fill.
12) Engage in strategic planning
The culmination of early case assessment is strategic planning based on an overall assessment of the strength and value of the case. On a practical note, the strategic plan should include the case schedule, overall budget based on cost projections for each phase of the case (e.g., document discovery, expert discovery, depositions, summary judgment) and staffing projections and assignments.
Equally important to creating the strategic plan is sharing the strategy with the team assembled in step one.
The strategic plan is the basis for counseling the client on several critical points: as to likely outcomes in settlement and at trial; weighing cost, risk and case value; and recommendations as to how to proceed. Developing a winning strategy is the ultimate purpose of early case assessment and each preceding step should be directed to supporting this effort.
Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney.
This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.