Seeing Around Corners: The Value and Challenges of ECA in a Data-Heavy World

It’s hard to argue with the assertion that the earlier you understand your case, the better. Whether it means avoiding arguments that cannot be supported by the evidence or asserting legal theories that will maximize insurance coverage, knowing where you want to go is the best way to find the shortest route there.

Of course, that is easier said than done. Long gone are the days when Early Case Assessment (ECA) involved rifling through boxes of documents and interviewing key witnesses. Each contractor, sub, architect and consultant brings their own data, often utilizing different software platforms. Identifying, collecting, reducing, and reviewing documents can be an involved task, often at a stage when clients are not ready to open the spigot for the expense of ediscovery.

Balancing the timing of litigation costs with the need to understand your case can be tricky. But there are tools available to do so. As with most aspects of the litigation process, it just takes some thought and planning.

The Value

It is worth first reviewing some of the benefits of ECA in construction cases. Here are five key ways that ECA can give you an advantage in your case.

1. Effective Third-Party Discovery. Third-party discovery can take time, particularly when trying to obtain documents from a list of smaller subs. Knowing what you already have helps identify what you need to obtain through subpoenas so you can start issuing them. Targeted requests for what you need help avoid broad requests that lead to unnecessary posturing and motion practice.

2. Find Relevant Evidence Quickly. Too often, lawyers simply focus on the data that is easiest to collect. But accessibility does not equate to relevancy. Cost data may exist in a contractor’s third-party accounting system. Key communications may be on the mobile devices of individuals in the field. Identifying the type of software where potential evidence is stored as early as possible can help hone in on determinative evidence. From there, it is a matter of determining how to collect it, filter it, and review it. Waiting too long to address such data issues can lead to always being a step behind, dealing with exorbitant costs from last-minute collections and reviews.

3. Maximize Insurance Coverage. Insurance coverage is often overlooked as a key factor in ECA. But to state the obvious, the availability of coverage can dictate the resolution. It is therefore wise (if not imperative) to evaluate potential coverage issues early and frame arguments accordingly. There’s nothing worse than pleading yourself out of coverage.

4. Understand the Damages. Having a sense of the damages at stake is key in any matter, particularly in construction disputes. 

5. Early Resolution. The cost of construction litigation has led many clients to push for early resolution, often through mediation. Of course, many would prefer to defer any time-intensive analysis until after mediation, in the hope that a settlement will save costs. But fruitful mediations require a deep dive into a number of complex issues. “Winging it” just isn’t an option.

If you are looking for a deeper dive into the issues that should be surfaced early in construction litigation, this Construction Law Today podcast is a great source.

But, How?

With relevant evidence often buried in gigabytes (or even terabytes) of data, how do you go about identifying it, especially at an early stage? The key is to incorporate data considerations into each phase of your investigation. These seven steps will help you navigate ECA and develop a comprehensive understanding of your data.

1. Ask Clients About Data Sources. When conducting initial interviews with client witnesses, be specific in your questioning about document locations. If the witness indicates that they communicated with emails and texts, identify the email provider and the type of mobile phone. On a site visit, ask about documents and plans associated with what you are seeing and inquire about where they are stored. Also ask your witnesses what they may know about the other parties' data sources: how they communicated, if they are aware of which accounting and project management systems were used, etc. Be sure to interview purely custodial witnesses (who may not have factual knowledge but are familiar with the client’s information systems). Such custodians may include IT professionals and administrators.

2. Address the Other Parties’ Data Sources Early. Don’t wait until the other parties serve their written discovery responses to find out where they have been storing data. Try to identify data sources during initial meet and confers and when negotiating ESI protocols. There is no reason that another party cannot tell you upfront whether they use Office 365 or G Suite or disclose what type of accounting system they use.

3. Start Planning for Collection, Filtering and Review. Once you have a sense of where the data is, start working with your support team or outside vendor to evaluate potential approaches to collecting and making that data useful. For example:

• If your client has a large number of emails in Office 365, determine whether using Microsoft’s Purview to filter data before exporting is an option, or whether entire email boxes should be exported and filtered in an ediscovery tool.

• Identify what data is generally available from accounting and project management systems. Your client can probably educate you on its own systems. For third-party systems used by the other parties, you may be able to obtain information from the software provider’s website or even get a demo.

• Determine whether you need the other parties to produce data in a certain format.

• If data is stored in interactive/dynamic project management software (such as Primavera or Buildertrend), then reviewing the data in that software is often preferable. (License sharing among the parties is one way to allow access to parties that do not already have the software.) By contrast, if all you need from AutoCAD or BIM drawings are snapshots, then conversion to PDF can save the need for access to the original software. Addressing issues such as these early will save you from last-minute scrambling. If there are uncommon or older data sources from which data cannot easily be extracted and reviewed, start looking for experts who can extract such data if necessary.

4. Do Your Legal Research. Knowing what legal theories may be applicable will help guide you in decisions regarding which data might be relevant. For example, how is “occurrence” defined under the governing law for purposes of property damage? What factual arguments might get around a design defect exclusion? Waiting until you are six months into a document review to start exploring a new legal theory can lead to significant added expense.

We pause here to note that, at this juncture, your client has not yet needed to make any significant investment in the collection, processing, hosting or review of data. Many clients resist addressing data issues early because of the cost. But the foregoing steps can be easily incorporated into other tasks that would have to be done anyway, such as witness interviews and meet and confers. And yet, they can save thousands of dollars and maximize your advantage. 

Once you have addressed the preliminary issues, created your data map, and started honing in on key legal theories, you can more effectively begin the data collection and analysis process through the next steps:

5. Collect Once. Armed with all the information from above, you can determine how best to start collecting your client’s data. There may be certain information that can be pre-filtered before collection. You should also make sure that you are collecting in a format that will comply with the ESI protocol. Otherwise, you risk having to go back and collect again.

6. Do Some Initial Analysis. This part is perhaps the hardest, as it is more art than science. Since we are talking about the ECA stage (not production for discovery purposes), the fundamental challenge is how to quickly identify likely relevant evidence without combing through hordes of data. One common option is to utilize data mining tools to filter documents matching certain search terms. Another is clustering to identify documents that have similar content. Often, the best process is an iterative one where you apply subject matter expertise to make educated guesses, and then utilize technology to either verify or disprove your assumptions.

7. Start Issuing Third-Party Discovery. Once court rules allow, it is usually a good idea to start issuing third-party subpoenas. Chasing down such information can often take time, and the earlier the start, the better. Third parties may also be more forthcoming than adversaries with certain information, which will help you get to the relevant evidence more quickly.

Don’t Worry

As the amount and types of construction data explode, dealing with it in litigation can be daunting. But getting ahead of the data and planning accordingly can make it manageable from a cost perspective – and thorough Early Case Assessment will put you in the driver’s seat when it comes to the resolution of the dispute.

Additional Resources: 

• eDiscovery Collections eGuide: The Definitive Guide to Managing Modern Data Collections

• The Art of eDiscovery Data Filtering eGuide: How to use modern data filtering and culling techniques to defensibly reduce data volumes and document review costs

• Winning the Meet & Confer eGuide: How to Set Comprehensive Ground Rules for eDiscovery

Andy Greene is the Managing Partner of Nextpoint Law Group, overseeing its senior lawyers and consultants in the areas of ediscovery, litigation support, and case analytics. As a former big firm partner and founder of a commercial litigation boutique, Andy has represented Fortune 500 companies and SMB’s across the U.S. in a broad array of matters, including construction claims and insurance coverage disputes. Andy can be reached at agreene@nextpointlawgroup.com.

Sonali Hanson is Nextpoint Law Group’s Managing Director of eDiscovery Services. With over 11 years of experience in the legal field, she has deep experience at the intersection of law, data and technology. She has assisted construction law firms across the country with complex discovery issues, including predictive coding, ESI protocols, data collection, data mining, collections and production. Sonali can be reached at sray@nextpointlawgroup.com.