White Paper on how the Smarsh email archiving solution can assist with early case assessments in litigation.

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Practical Applications: Reduce Litigation Costs
Using Email Archiving for Early Case Assessment
By: Seth H. Row
August 2009
Smarsh Inc. 921 SW Washington Street, Suite 540
Portland, OR 97205
1-866-SMARSH-1 | 971-998-9967 (fax) | www.smarsh.com

2. Practical Applications: Reduce Litigation Costs Using
Email Archiving for Early Case Assessment
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Table of Contents
Early Case Assessment 2
The Blueprint 2
The Critical Role of Email in ECA 3
Defend or Settle? 3
The Meet and Confer Conference 4
Smarsh’s Hosted Email Archiving Solution 4
Efficient and Cost-effective Email Search and Retrieval 4
Control In-House or Seamlessly Involve Outside Counsel 4
Alleviate Spoliation Concerns 5
In Summary 5
Early Case Assessment
The Blueprint
Time. It is the critical component in litigation. Court deadlines compress the time that you have to understand your
case, marshal your facts, and prepare your side of the story. Time spent dealing with litigation distracts business
people from producing value for the busine, ss. As time goes on, the parties’ positions harden and negotiated
resolution becomes more difficult. Finally, and most importantly, your litigation costs are usually measured by the
time that counsel spends working up the case, analyzing risks and defending (or prosecuting) the claims.
Litigators know that the less time the better when it comes to the period between the filing of a complaint and a full
appreciation by the parties of the risks, strengths, and weaknesses of the case. The less time that goes into
procedural posturing and the litigation “exercise,” the better for settlements, relationships, and business
productivity.
Early Case Assessment (ECA) is one of the methods that lawyers and businesses are now using to avoid the negative
effects of the passage of time on litigation. ECA is just what it says: an effort to understand a case as early as
possible in order to be able to assess strengths, weaknesses and overall risks. Major corporations have integrated
ECA into their litigation programs and have realized dramatic aggregate costs savings, both from lower defense
costs and reduced settlement payouts, particularly in defending repetitive employment cases. As stated in
DuPont’s Legal Model, “…when you have a plan to build a house before you drive the nails, the house goes up
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faster, at less cost, and the end result is likely to be close to the blueprint you developed.”
While some advocate an ECA model emphasizing the completion of major casework within the first three to six
months – including interviewing potential witnesses, scouring the potential evidence, and performing extensive
legal analysis – most agree that an effective ECA can be done without interviewing every witness, reviewing large
volumes of documents or researching every legal theory. The greatest value of the process comes from
understanding the most critical information within the first 60 days of any dispute.
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3. Practical Applications: Reduce Litigation Costs Using
Email Archiving for Early Case Assessment
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The Critical Role of Email in ECA
Email plays a critical role in ECA, for the simple reason that in most cases, it makes up the majority of factual
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information produced in discovery. Focusing on email in your ECA will help you accomplish some critical tasks:
First, assessing the case requires creating the timeline for the dispute – the chronology of the
underlying facts. This step is critical, particularly in fact-intensive cases, such as labor and
employment disputes. What better way to quickly create a timeline of events than with
documents that are already indexed by date and time? Email.
Second, email will help determine your cast of characters. Many times litigators will assume that
a dispute involves a single department, only to find out – because they were cc’d on email – that
someone from another department has a stake in the game or knowledge of a situation.
Identifying the players in your dispute is critical not only to understanding the case, but also to
implementing a successful litigation hold (another crucial component of your risk management
strategy). The email traffic will also identify external players, including the key personnel in your
opponent’s organization.
Many traditional litigators attempt to interview employees as the very first step in the Early Case
Assessment. This practice is often inefficient. Litigation usually involves what many employees
consider ancient history. As a result, memories fade or become selective. Current issues are top
of mind, and may overwhelm the employee’s ability to accurately re-create old events. If you can
approach a witness interview with an email chain in hand, you will be able to guide the employee
through the timeline, triggering memories and insights along the way, and you will maximize
valuable interview time.
Third, a chain of email will often tell the whole story as employees communicate, observe,
disclose and react to events. The proverbial smoking gun will often be found in an email from a
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participant in the drama that led to the litigation. According to the Enterprise Strategy Group,
approximately 80 percent of electronic discovery events involve email. Efficiently getting a handle
on what is said in the email traffic in most cases will give immediate insight into the bulk of the
discovery material.
Fourth, email will help you identify the critical non-email documents. If one draft document was
exchanged between the key players 40 times in a month, you can be sure that that one document
is worth more of your time than the 10 other documents that were only exchanged once. Once
you have identified important documents using the email archive, you can turn to other company
file systems to identify (and preserve) drafts, final versions and permutations of those documents
for further analysis. You can eliminate a lot of the guesswork in bulk-searching file folders.
Defend or Settle?
“Defend or settle?” is the question most in-house counsel or outside litigators dread early into a case. The
question often comes down to the ability to estimate costs, at least through discovery. Litigators commonly use a
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rule of thumb that discovery costs will constitute, on average, 75 percent of the cost of any piece of litigation.
Getting a handle on the timeline, the cast of characters, the storyline and the critical documents will go a long way
toward helping you estimate how much the case will cost to defend or prosecute. Once you have an idea of how
many witnesses will need to be interviewed, how many people will need to be deposed, how many documents
may be involved and what third parties may need to be subpoenaed, you’ll have a basis for estimating the bulk of
your litigation costs. And perhaps avoid the standard answer to the “defend or settle” question: it is too early to
tell.
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4. Practical Applications: Reduce Litigation Costs Using
Email Archiving for Early Case Assessment
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The Meet and Confer Conference
If you are in federal court (or many state courts), performing an Early Case Assessment focusing on email also goes
hand-in-glove with your obligations under Federal Rule of Civil Procedure 26(f), or the analogous state rule. Under
these rules you must be able to meet and confer with opposing counsel early on in the case to discuss the scope
and timing of discovery, preservation efforts, the production of electronically stored information and early case
resolution. Oftentimes the Rule 26(f) meet and confer will take place within 60 or 90 days of a case being filed.
Having the cast of characters and timeframe for the dispute identified early will allow litigation counsel to dive
deeper into the case as they prepare for the Rule 26(f) conference, increasing the ability to use the conference to
strategic advantage or to streamline future discovery.
Smarsh’s Hosted Email Archiving Solution
Smarsh, a private company based in Portland, Ore., has been providing hosted email archiving and compliance
services since 2001. Smarsh’s email archiving solution captures every email and attachment that enters or leaves an
organization, and preserves them in evidentiary-quality form in a central repository. Messages are retained in
accordance with company policy (or any active legal holds). The messages are scanned, classified according to the
results, and indexed. Using the Web-based Smarsh Management Console, system administrators can search the
archive, retrieve messages that fit specified criteria and produce this email on-demand.
Efficient and Cost-effective Email Search and Retrieval
The Smarsh Management Console, the system’s Web-based user interface, enables permissioned individuals to
search company-wide email for certain keywords in the email text or attachments, search by email custodian,
search by date, or any combination of those criteria. Because all email is preserved in the archive in its original form
(ensuring that no messages are tampered with, altered or deleted) for the entire retention period set by the
company, there is no backup media restoration to contend with. The entire archive is instantly searchable on-
demand, and all company email is contained in one central repository. There will be no need to spend time and
resources searching individual employees’ email folders on different servers or PST files on individual hard drives.
Determine which players appear the most frequently in email discussions, and the email archive can provide other
data (such as message metadata) to help understand the flow of information. Your search results can be burned to
disk or can be loaded into litigation support software – or even a simple spreadsheet – to create a chronology and
extract the key players and key documents. And, because the archive is compiled in real time and is always
accessible, you can be assured that you are getting the most accurate information, and can update your searches
“on the fly” as more information is gathered.
Control In-House or Seamlessly Involve Outside Counsel
The Smarsh solution allows you to do some or all searching in-house. As one prominent blogger on ECA has written,
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ECA is not something for outside counsel to just "go off and do." Outside counsel sometimes spends hours trying to
re-create the institutional knowledge that an in-house manager could access in seconds. Company jargon or
intricate organizational schemes can result in misunderstandings between the client and outside counsel. Bringing
a significant portion of ECA in-house can dramatically reduce costs and produce a more accurate assessment of a
case. Moreover, in-house personnel may be able to identify opportunities for early resolution that an outside
lawyer, focused on zealous advocacy of the clients’ position, might miss.
For companies that use outside counsel to assist with the ECA, temporary Smarsh user accounts can be created with
specific permissions to allow outside counsel limited access to the archive. This enables outside counsel to search
and retrieve email without incurring vendor charges for processing into document review software. Meanwhile, the
accessibility of the Web-based Smarsh Management Console gives counsel complete flexibility in choosing when
and where to perform searches.
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5. Practical Applications: Reduce Litigation Costs Using
Email Archiving for Early Case Assessment
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Alleviate Spoliation Concerns
Because Smarsh’s search, classification and download functions do not alter the forensic qualities of the email being
searched, the risks of spoliation that sometimes arise when email is searched using a native email client are
eliminated. Litigation holds can be put in place simultaneously as data sets are identified.
In Summary
ECA is quickly becoming second-nature for sophisticated corporate clients and litigators. ECA is an investment – of
internal resources, and litigation counsel’s time – that can deliver outstanding results in litigation cost management.
Using an email archiving solution like Smarsh’s hosted service can optimize the return on that investment by
increasing the efficiency of fact-gathering and reducing the need to outsource.
Seth H. Row is an independent legal consultant to Smarsh, and a litigator and electronic discovery consultant in
Portland, Oregon. Seth has over ten years of experience handling business, employment, and insurance recovery
disputes, most recently with the international law firm of Holland & Knight LLP. Prior to that he worked with a major
regional Northwest firm and as law clerk to a federal trial judge. He is also a frequent speaker and author on
electronic discovery and federal practice and procedure, and is the editor of the Federal Practice Handbook for the
District of Oregon.
i
See http://www.dupontlegalmodel.com/onlinelibrary_detail.asp?libid=135 (visited August 21, 2009).
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ESG Research Report, “Electronic Discovery Requirements Escalate,” November 2007.
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Id.
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Studies attempting to quantify the amount of the average litigation budget consumed by discovery have come to
varying conclusion. The most widely-cited assertion about the ratio is contained in The Third Branch: Newsletter of
the Federal Courts, vol. 31, No. 10 (October 1999) (available at
http://www.uscourts.gov/ttb/oct99ttb/october1999.html) (visited August 21, 2009): “Discovery represents 50
percent of the litigation costs in the average case and up to 90 percent of the litigation costs in cases in which it is
actively used.”
v
John DeGroote, “Putting the Checklist Into Action: Early Case Assessments Part III”, available at
http://www.settlementperspectives.com/2008/10/putting-the-checklist-into-action-early-case-assessments-part-
iii/ (visited August 21, 2009).
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