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The concept of early case assessment (ECA) hasn’t changed with the times — the name of the game is still getting a clear, upfront picture of the issue at hand, as well as any liabilities or potential costs. But what has changed is the volume of data that might be relevant, and where it lives. Many of the tools that power companies today are cloud-based (versus on-premises) and where and how your data is stored varies from one application to the next. This adds a new layer of complexity to ECA.
Early case assessment is essential due diligence. What you find out early on may significantly impact your litigation strategy, including whether to settle and, if so, on what terms. Not to mention that culling irrelevant data is essential to reducing volume and, as a result, review times and costs.
It’s no secret that modern day ECA is data-centric. And, when faced with vast swaths of potentially relevant electronically stored information (ESI), carefully reviewing it all for “smoking guns” is far too time-consuming. You’re better off partnering with your IT department right away and targeting the data that’s most likely relevant to the matter.
A good starting point is with custodian interviews and verifying your organization’s data map. ECA requires a thorough understanding of data volume and locations — ranging from employees’ personal devices to the apps they use.
After thorough preparation, you can start targeted sampling and testing the efficacy of your initial keyword strategy. As you expand each sample in scope, your team learns more about the legal dispute and can refine the litigation strategy.
When you perform initial custodian interviews and update your data map, you’ll likely find that a portion (or most) of your business’s data is stored in the cloud. In the past year, most organizations increased their reliance on cloud-based apps due to a shift to remote work and COVID-19. Many email, project management, customer relationship management, workplace collaboration, and other apps rely on public and private clouds.
While the cloud makes doing business more efficient, it can create hurdles during eDiscovery and ECA.
It’s not easy to locate data in the cloud — at least, not without the right tools. For starters, cloud apps may have limited capability to search and/or hold data, assuming they have this functionality at all.
Nevertheless, you must make reasonable efforts to find it. Your organization’s data may be scattered among different public and private clouds, and ESI in a particular cloud could be housed in multiple geographic locations. Your business must identify your cloud providers, review your contracts with them, and reach out to them regarding their data storage, policies, and subcontractor use.
Your next step is to confirm your cloud vendor and subcontractors’ retention, preservation, and deletion policies, which should be addressed in your contract. Once your business reasonably expects litigation, you have a duty to preserve information. If the vendors don’t follow your organization’s preferred policies, consider how their way of doing things could impact your legal matter. In most cases, a legal hold notice won’t be enough — you’ll have to follow up to ensure the provider preserves the relevant data.
ESI files are dynamic and sometimes hard to identify. They may contain images, video, audio, links, etc. Collaborative messaging apps, such as Slack, pose particular challenges as communications need to be seen in context to make sense. All told, your team must prepare to encounter files that complicate the review process, which includes utilizing technology to access and export dynamic and complex files accurately.
Cloud vendors’ and subcontractors’ technical capabilities matter, too. The vendor’s abilities and capacity to handle your requests could slow down your collection process.
Rule 26(f) of the Federal Rules of Civil Procedure requires you to confer with the other parties early in the case to discuss discovery and, specifically, potential issues with ESI. You must understand your organization’s ESI landscape, including the cloud providers involved, their policies, and any hurdles you might encounter in producing evidence in preparation for your Rule 26 conference. If you’re not properly prepared, you could face costly discovery headaches, even costlier remedies, and possible sanctions.
Despite the risks, it isn’t all doom and gloom. Relying on the cloud doesn’t have to bring significant challenges during discovery and ECA if your business prepares. Take advantage of a knowledge integration platform, like Onna, that gives you the power to access information effortlessly, wherever it lives in the cloud. Our platform collects and holds ESI from multiple siloed platforms in one place, making it possible to perform targeted searches quickly and accurately. With the ability to review data in near-native format, you can find and export only what you need.