Directed to litigation firm owners, directors, and their paralegals
By James Jordan
Paralegal involvement in ECA/EDA builds the operational depth a litigation team needs for the rest of the matter. Firms that treat it as optional are staffing their most complex cases against a shrinking supply of paralegals who have actually done the work.
The case for it comes down to three things. First, continuity: the same person tracks the record from day one instead of picking it up mid-discovery. Second, cost: routine ECA/EDA tracking gets billed at paralegal rates instead of associate rates. Third, readiness: paralegals regularly exposed to the ECA/EDA phase are the ones who can eventually run the operational aspects independently. This frees up associate hours for more substantive work. ECA/EDA is one place to start.
In my opinion, we are not providing enough training, and that has created a gap impacting the country’s high-complexity litigation.
A paralegal whose matter experience tops out at five or six witnesses is not ready to manage a forty-custodian matter. With training, yes, but not out of the gate. When experienced paralegal capacity is missing, associates often absorb the coordination, tracking, and logistical work that should sit with litigation support. Time spent on that work comes at the expense of the substantive experience that actually develops a litigator. Add lateral moves and turnover, and institutional knowledge takes a hit, too.
We have to do better at developing internal ownership of matter operations. One direct answer is bringing a paralegal into ECA/EDA early.
Early Case Assessment (ECA) begins when a dispute or investigation creates a need to understand risk. A filed complaint often brings outside counsel into the matter, but a regulatory inquiry or credible internal threat of litigation should also trigger a hold and the ECA process.
ECA develops the who, what, when, where, and how of the matter:
Early Case Assessment (ECA) and Early Data Assessment (EDA) are sometimes used interchangeably, but there is a useful distinction.
ECA is the broader assessment. It considers the facts, legal issues, potential exposure, discovery scope, and cost, all needed to make early strategic decisions.
EDA assesses available data and uses filtering and searching to estimate its relevance and scope.
EDA informs ECA.
ECA is a collaborative process between in-house and outside counsel, while EDA ownership depends on the client’s resources. Companies with a track record of defending IP or other litigation often have EDA capability in-house, but not every company is that prepared.
Depending on resources and priorities, much of this work can sit outside the paralegal’s view, but exposing paralegals to the process has immediate and long-term value. They learn the matter earlier and are better positioned to take ownership of operational work as it develops.
As ECA/EDA develops, information becomes operational. Legal holds must be tracked, and data collection progress from individual and departmental sources must be monitored. This process requires significant logistical planning among 3-5 stakeholders.
Bringing paralegals in early creates continuity between assessment and execution. Before discovery begins, they understand priorities like witness identification, privilege concerns, and nomenclature. They learn the matter and take on more responsibility as it progresses.
We’re building skills while assigning work at the right level and cost.
Several recurring ECA/EDA tasks suit an eDiscovery project manager or a trained paralegal, with legal assistants supporting some administrative work.
The paralegal typically works alongside a litigation support or eDiscovery team when one exists, or coordinates directly with the eDiscovery database provider when it doesn’t. In these situations, the paralegal fills whatever gap sits between existing technical support and outside counsel.
The title matters less than the training and responsibility. Someone should own the operational record as it develops, and increasingly, that person should be the paralegal, not the associate whose time is better spent on substantive legal work.
Below are a few specific tasks where that ownership shows up in practice.
Purpose: A legal hold directs an organization’s employees, custodians, and other relevant personnel to preserve potentially relevant documents and information when litigation is pending or reasonably anticipated. This includes identifying and suspending routine or scheduled deletion processes that could affect relevant information. Depending on resources, the client usually administers the hold while we, as outside counsel, advise on scope and language.
Source: In most complex civil matters, the client issues the holds and follows up on acknowledgments, but we should have visibility into issue dates, acknowledgment status, and material changes.
Watch for: Ask for visibility into communications about the legal hold process. This is the best way to record progress on revised holds, exceptions, missed acknowledgments, and escalations. In most cases, we do not “own” this process, but we should track it as if we did. If you identify a gap in coverage or hold receipt acknowledgment, forward it to the attorney team for follow-up.
Purpose: Track current and former employees with potentially relevant information or matter knowledge, along with other people and data sources identified during the assessment.
Source: Client and HR records, interviews, organizational charts, investigation materials, and other matter sources. A partner or associate will likely prepare interview notes, but someone billing at a lower rate can turn those notes into a working custodian and data-source tool.
Watch for: Custodian interviews can identify additional people, systems, devices, and repositories as recollections are refreshed. Public sources such as Google searches or LinkedIn can help corroborate related information. If someone changed names, capture both. Ultimately, rely on client records and authoritative documentation for accuracy. For former employees or other third parties, entity and location confirmation research pays off if the team later wants to subpoena records or testimony.
Purpose: In addition to standard back end forensic collections, there is often a need for device handling, which may require forensic specialists to perform remote or on-site data captures. That means coordinating custodians, client IT, access, security requirements, special equipment, collection windows, locations, and vendor schedules. We’re on the phone scheduling. A lot.
Source: The collection process should be memorialized as a master roadmap or matrix. Access to the scheduling component is simply about being added to emails.
Watch for: The master roadmap will evolve as we learn more about the people, systems, and data. Take detailed notes, memorialize decisions, and circulate them to the team. Coordination can quietly take up space on an associate’s plate throughout the day.
During ECA/EDA, the client and attorneys determine the legal and strategic significance of the information being developed. Scope and proportionality, what’s reasonable to collect and review given the size and stakes of the matter, are two primary concerns ultimately negotiated with opposing counsel.
In a federal matter, ECA is a core input to the Rule 26 process including the proposed discovery plan and initial disclosures. Counsel should enter that process knowing what has been preserved, the likely sources and volume of ESI, and any accessibility concerns that may affect scope or burden.
At the state level, the operational needs are the same: identify people, information, and documents early to prepare your disclosures. This is familiar territory for a case paralegal. We routinely support procedural compliance by tracking the rules, the deadlines, and fact-checking. Here, we’re tracking custodian records, collection status, and other working frameworks that support counsel’s decisions.
The legal positioning stays with counsel. With training, the paralegal can relieve attorneys of maintaining much of the working record behind those decisions.
Supporting a decision is different from making it. The opportunity here is to push the factual and operational work down to the right level, not to push the attorney out of the process.
Early involvement gives the operational lead working knowledge of the matter before large-scale collection or review begins. That knowledge becomes more valuable as the matter grows because that person is embedded with the trial team. The person maintaining the ECA/EDA record helps reconcile collections and prepare production tracking. Names, terms of art, and R&D project aliases are familiar to that person. Eventually, that person will be able to answer factual questions without rebuilding the history from scattered emails or notes. Accuracy is speed.
A motion to compel sticks. Fact-checking sticks. Depo prep sticks. I’m not just talking about memory when I say sticks. I’m speaking to motivation, which determines the quality of work.
The staffing benefit is bigger than simply moving admin tasks away from attorneys. Letting attorneys focus on risk assessment, case theory, and strategy improves preparation, produces drafts closer to final, and gives associates more time to build legal judgment.
For a large firm, this may mean coordinated ownership among a senior paralegal and dedicated eDiscovery personnel. A smaller complex-litigation firm may lean more heavily on a senior paralegal and its eDiscovery provider. Either way, identify who owns the operational record, give that person the access and authority to maintain it, and keep that ownership consistent as the matter progresses.