I was a member of a Masters Conference panel brought together by Digital Reef to discuss the question whether early case assessment is working as a way of saving time and money in litigation, as well as for improving its outcomes.
The moderator was Shawnna Childress of Navigant and of Women in EDiscovery. The other panellists were Steve Akers, CTO of Digital Reef, Bill Belt of LeClair Ryan, Browning Marean of DLA Piper US and Michelle Treadwell Briggs of Goodwin Procter.
“Early Case Assessment”, capital letters and all, is one of those expressions which lost all meaning when commandeered by technology marketing departments. It pandered to the idea that there existed a push-button technology solution, and the side-effects included two which were less than helpful: one was that we could defer thinking about cases until they hit us; the other was to make lawyers feel that they were bit-players in a technology solution.
The first of these means that we are always firefighting. Although companies are beginning to realise that there is no realistic alternative to a proper document retention policy and the technology and processes to back it, the reality in many companies is that this involves resources which are not readily available (perhaps because no-one has ever bothered to add up what the fire-fighting is costing – see this article by Katey Wood of ESG which suggests that a simple computation of external legal and ediscovery spend might provoke a different approach to in-house resourcing). Even where there is no in-house capability, companies ought at least to know what they will do on the occurrence of any reasonably foreseeable triggering event – a fire drill to be invoked to aid fire-fighting. Read the rest of this entry »