The new disclosure rules in the UK force counsel and their clients to think about disclosure much earlier in the timeline of a case.  You need to submit initial disclosure with your statement of case, and you need to have an understanding of the key issues and the type of disclosure you will request for each within 28 days of close of the statement of case. 

While there is no requirement to perform a search at the initial disclosure stage, it’s difficult to see how you will get insight into the key issues, let alone know what data you have to support or refute them, without doing some kind of assessment of the relevant data.

The answer may be early case assessment (ECA).  Traditionally ECA has been used to get an early view of the case and its merits to determine whether to proceed or settle.  However with the compressed timelines of the new disclosure pilot, an ECA exercise could help you get a better handle on your case, its key issues, what models of disclosure you’ll want for each relevant issue, and what the likely costs might be.

Using ECA

ECA uses a combination of eDiscovery experts and technology solutions to quickly identify and assess electronically stored information, documents and other potential evidence.  It can help get a handle on what information you have, what issues will be the most relevant, and what kind of in-depth disclosure you’ll need to do to manage your matter effectively.

New advances in TAR technologies can help you reduce the cost and timeframes of ECA projects.  Continuous active learning can help identify relevant documents earlier, and next generation analytics tools can help you gain insight into not just the files and their content, but also the nature (sentiment analysis) of the communications and the relationship between the parties exchanging  the correspondence (communications analysis).

However, ECA is not a magic bullet.  The outcome of your ECA exercise depends heavily on the quality of the data collection and an understanding of how to process many different types of data.  Without this you run the risk of missing something big.

With timelines compressed ECA may be able to help you get a handle on your data an effective and efficient way.