Early case assessment and fixed cost eDiscovery are two areas in legal risk management that require specific attention. Fixed cost eDiscovery is designed to address the financial risk associated with large legal cases. For additional information on eDiscovery go to www.estorian.com. The outcome of fixed cost eDiscovery is reduced exposure to the cost and time spent reviewing and analyzing the data after a legal case is underway. Early case assessment is a process that can reduce legal risk exposure by offering a necessary view into the case information, i.e. custodians, context, third-parties, etc. The latter is a legal risk competitive advantage; the former is simply cost containment.

Early case assessment is done by an organization to manage the organizations legal risk exposure. Early case assessment (ECA) can be considered the artillery in the armory that legal counsel takes to their meet-confer meetings. ECA includes information about custodians, context and concepts and will help legal counsel manage the outcome of the meet-and-confer meetings. However, it is not supposed to be this way.

According to The Honorable Judge Peter Flynn of the Circuit Court of Cook County, Chancery Division, Illinois, Meet-and-confer meeting's are supposed to be about putting your IT cards on the table, what one can and cannot do with respect to data, data types, collections, preservations, data transformations, etc. Judge Flynn responded to a question related to guarded sharing of IT capability during meet-and-confer meetings during last weeks live Panel Discussion on Document Review Acceleration, hosted by Epiq Systems. He responded saying it was "Flat dead wrong, sanctionable." According to Judge Flynn, guarding IT and ECA information during meet-and-confers is probably illegal. His response and the participant question make it clear that 'the guarding of information is a competitive advantage in the world of legal wrangling.'

The competitive advantage presents itself because the legal process is full of gray areas. We know, through our interview series, that legal counsel will expand the scope of any information based activity. Understanding ones capabilities, custodians and case information ahead of a meet-and-confer meeting can mean the difference between 10 terabytes of information and 10 gigabytes of information, or roughly 600 million individual pages versus 600,000 individual pages. Legal counsel can use the fore knowledge gained through early case assessment to steer the meet-and-confer meeting to their advantage, as opposed to sharing their complete capability.

Fixed cost eDiscovery can become a liability for some companies because the opposing counsel could use the published financial information their advantage. For example, if you told the opposing counsel you used Huron Consulting V3locity, they would know the cost per document page is about .25cents. On the contrary, if you used services from KPMG, a very guarded company, then your opposition would have little or no information. In legal, the less information your opponent has, the better off you are.

Using commodity based early case assessment tools may introduce legal risk your company may not want to manage. For example, if the opposing counsel has foreknowledge of the products you use, such as Autonomy/Aungate, Attenex or Clearwell Systems, they know your capability to identify concepts, custodians, etc. Using software to create legal leverage without sharing to the world how you do it, can improve your competitive advantage in the early phases of litigation.

Estorian LookingGlass offers ECA capability without requiring your staff to learn complex indexing APIs or be relegated to a GUI that only your vendor will change, if they don't run out of money. LookingGlass ECA capability is their "Spherical Indexing" infrastructure. LookingGlass Spherical Indexing is based on years of consulting and product definition with leading legal firms, according to Ron Higgins, Chief Strategy Officer. Rest assured that the clients who helped design Spherical Indexing have a great pedigree. The outcome of the use cases have resulted in an indexing system that uses an array of Database/SQL tables to manage the meta-data related to electronic mail.

Estorian LookingGlass delivers on key search capability, but gives your organization the power to find and work with the data using standard SQL queries. SQL is a language that is understood by many business analysts and is easily integrated into Microsoft SharePoint Portal server. In next months blog http://www.estorian.com/blog.php we'll explore Spherical Indexing, email analytics and "Spherical Indexing: Thinking outside of the OLAP cube."

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