Getting a grasp of the strengths and weaknesses of one’s case early becomes more important and more challenging with substantial ESI. Creating early case timelines can help keep your case perspective accurate.
Assessing one’s case early is as important as ever. Keyword selections, used for discovery requests and Rule 26 Meet and Confer agreements, depend on accurate identification of the important case issues. If the critical issues of a case are not identified until later, then it will become necessary to request additional documents based on new keywords, or from different custodians. This can add substantial cost to discovery collections and tries the patience of opponents and potentially the court. At some point in the discovery process the cost of additional collections will shift to the requestor, or it simply will not be possible to identify new issues too late in the process. A related concern involves identifying potential claims and defenses early enough in the discovery process to be able to include them in the pleadings.
ESI intensive cases are even more difficult to assess early because distilling information about the case from large amounts of data can be expensive and is dependent on both knowing the issues to generate keywords — a sort of ‘catch-22’ – and being in possession of the data. If one is trying to get the important facts early in the case from the ESI (as opposed to witness interviews and case participants, etc.) then the review of ESI will be an iterative process of trying proposed keyword searches, manually reviewing a sample of the documents returned by the search results, and then revising search terms.
As part of the early case assessment process, counsel can identify what discovery is needed, identify key witnesses and data custodians, construct factual timelines, and determine the strengths and weaknesses of the case. The goal of this proactive approach is to develop an early strategy for the case, realistically evaluate the case, determine the cost and budget to prosecute/defend, and identify business practices that might be modified to minimize litigation exposure in the future.
This probably sounds like ‘mom and apple pie’ and is certainly not a new idea. But then why isn’t this done in every case? There are several real life barriers to doing a comprehensive early case assessment. One is the need for client support. Conducting an early case assessment will cost money and a client may view it as ‘over-working’ the case if they don’t understand the process and benefits. These benefits include a better early understanding of the case that can lead to opportunities for settlement and reducing unnecessary eDiscovery costs.
A more subtle objection is the concern with being the bearer of bad news. A legitimate worry is that the client may not be ready to hear bad news about the case and may be inclined to ‘shoot the messenger’. Some clients think they need a very gung ho ‘junkyard dog’ type of litigator and might interpret an early balanced analysis of case strengths and weaknesses as lack of confidence from their attorney. This problem is compounded when the litigator has been recently hired and does not have experience with the client. For these types of clients, some lawyers take the approach of letting the adverse facts of their case sink in over time. Eventually the client begins to accept the shortcomings in their case and are more inclined to settle.
The cost of the ‘wait and see’ approach of not doing early case assessment is greater today, and will continue to grow, because of increased volumes of ESI. Some cases may have so much potentially relevant ESI that the cost to review it may outweigh the benefits of litigating. In reality, a case in which the opposition has enough merit in their case to allow extensive eDiscovery justifies an early evaluation of that cost and raises the case’s settlement value. Also, not understanding one’s case early can greatly increase the cost of conducting eDiscovery by requiring repeated requests and reviews as key issues and keywords are not understood – and custodians and data repositories not identified – until relatively late in the case.
When constructing chronologies very early in the case, they may be developed from limited available sources: facts from initial client interviews, review of key documents forwarded by the client, and alleged facts from the opponent’s’ pleadings. However, even limited sources can begin to give a good picture of where the strengths and weaknesses of the case lie. Early case assessment tools, like those found in Lexbe eDiscovery Platform, can help you construct timelines at the earliest stages. Certainly all lawyers construct timelines as a case progresses towards trial, but there are advantages in doing it as early as possible in an environment that is integrated with the case data. The most important of which is that, as iterative ESI collections arrive, early case timelines can be updated automatically and in real time.
Early case timelines can also include facts that are needed to support the claim or defense based on anticipated jury instructions for the claims involved. These facts remain ‘orphaned’ until associated with one or more documents or portions of deposition testimony. The existence of these orphaned facts serve as red flags for evidence that needs to be developed during the discovery stage. Similarly tracking facts that one’s opponent needs to prove for his or her case can serve as focal points for developing opposing evidence and summary judgment motions for evidence that has not been successfully developed during discovery.
Timelines also serve as a good way to begin educating clients about the potential holes or weaknesses in their case. A client can begin to digest a truer picture of his or her case through periodic review of timelines showing positive and negative facts backed up with documentary evidence or deposition testimony. Such chronologies can also help the client to develop supporting evidence, both documentary and oral, by jogging the client’s memory for missing or contrary evidence. As the case develops and more ESI comes in, the issue timelines can be supplemented more easily. With functional case timelines, an attorney is also in a better position to quickly develop and defend summary judgment motions and to identify specific facts backed with evidence.