Survey Says: Lawyers need more technical assistance with eDiscovery
By: Tom O’Connor
The Law Bulletin Publishing Company has just concluded its 8th Annual eDiscovery and Technology Survey of Illinois attorneys. The survey asked a number of specific questions regarding attorneys experience with eDiscovery matters, vendors and products. The final two questions asked for opinions as to what attorneys felt were the most important eDiscovery issues they faced.
The respondents to the survey represented a good cross-section of practitioners, with the majority being in private practice (68% – down slightly from the last four years at or just over 70%), 16% in government practice (up from 10% last year) and 5% in corporate practice, down nearly half from 9% from last year. The remainder were in a variety of administrative, teaching or public service roles. Of the private practitioners, 20% were in a solo practice, a return to the number of 2 years ago, while respondents from firms between two and twenty attorneys at 40% also returned to the 2013 number. Firms between 20 to 50 attorneys were at 8% (down 1%) while firms over 50 also increase to 27%, close to the 2013 number. And firms over 300 also jumped significantly, from .05% last year to 8% this year. The distribution of responses has gone back to a more balanced distribution with 40% solo attorneys and increased representation by large firms, compared to last year’s, down from last year’s dominance of nearly 2/3 of the responses from solo or small firms.
The number of partners dropped to 32% (down from 43% last year) with 11% being associates, both numbers returning to 2013 levels. In-house counsel dropped to 5% while the number of non-attorneys also returned to 2013 numbers at 39%. The overall trend, then, was a reversal of last year’s dominance by solo and small firm respondents and a return to a more balanced level of participation by large firm participants. An increasing number of ediscovery specialists, including IT managers, practice managers, paralegals, claims examiners, law students and even document reviewers also responded to the survey. 50% of the respondents identified themselves as litigation specialists (up slightly from 46% last year), with specific areas of Family Law, Personal Injury and Insurance dominating their practice areas. Corporate law rose from 5% to 16%, reflecting the increased number of in-house counsel answering the survey. Taxation dropped again (7% to 5%), Real Estate rose slightly (14% to 15%) as did Finance (7% to 11%) also reflecting the return of large firm responses. Probate law increased from 9% to 13% while Bankruptcy dropped slightly from 7% to 5% and Family Law logged in at 12%.
As with past years’s survey responses when a majority of respondents did not answer a general question about eDiscovery initiatives, avoidance of this area in this year’s survey responses was high. By noting that only half the respondents answered the general question, showing an ongoing lack of awareness of how ediscovery rules and principles are evolving. Although 68% of the respondents knew about the 7th Circuit ED Pilot Project (which has been underway in Chicago for the past three years) down from 74% last year, only 3% had heard of a similar project in the USDC for the Southern District of New York, down from 5% last year. 66% were familiar with the EDRM project (up strongly from 46% last year and soundly beating the 51% response from 2013) and the Georgetown ED Academy ticked up slightly from 10% to 11%.
Just as familiarity with the EDRM project increased, so too did the rate of knowledge with the components of that project. 58% felt they were familiar with identification and processing, 61% with review and litigation hold requirements. Only early case analysis and collection dropped slightly from 54% to 53% and 54% to 53% respectively. Familiarity with the Meet and Confer process increased slightly from 53% to 58% as did statistics for familiarity with the process itself. Last year, 80% said they had not actually participated in a Meet and Confer session, a number which dropped to 74%. And of those who did hold a Meet & Confer session, last year 82% said they didn’t know if it helped lower the costs in their matter, a number which dropped substantially to 53% this year. Several new questions in this section brought interesting results. 37% of respondents were aware of impending changes to the Federal Rules of Civil Procedure (FRCP) coming this December. But only 8% were aware of the recent Rio Tinto decision which dealt with standards for Technology-Assisted Review and even less, 3%, had heard of the Branhaven case dealing with attorneys’ ethical obligations during discovery under FRCP Rule 26(g).
eDiscovery reference sources of information showed some significant shifts, notably an increased reliance on case law (up to 58% from 39%) and court rules (up to 44% from 38%). Conferences also showed a sharp increase (36% to 44%) while RSS feeds held relatively steady at 36% from last year’s 34%. Print media more than doubled (17% to 38%), better than the previous year’s responses and websites also rebounded from 30% to 40%. Consultants held steady at 16% while vendors surged from 13% to 25%. Social media showed an interesting divergence as Twitter only registered a 7% response but LinkedIn had a robust 27%. The drop in small firm respondents this year seems to have shifted the answers with a return to a more diversified set of information sources, but all respondents clearly were looking to case law and rules for guidance. Lawyers continue to acknowledge that there are multiple sources of information and are availing themselves of most of them.
How Much Is That Case Worth?
The increased survey participation by attorneys pushed a small increase in people saying they handled matters involving eDiscovery from 50% to 54%. Of those, 23% said that their eDiscovery caseload had increased from last year, the same percentage as last year.
A real surprise here was that 52% of the respondents said they had an eDiscovery matter in Circuit Court versus 45% in Federal court. The remaining 3% were in specialty courts. A major change this year was that 53% of the respondents had matters valued under $100,000 (up from 22% last year) while cases valued between $100,000 and $1,000,000 dropped slightly from 33% last year to 27% this year.
But for those who had eDiscovery matters, the number spending less than $50,000 on ED services dropped substantially from 70% to 57% while the number spending between $50,000 and $1,000,000 also dropped from 33% to 22%.
The above figures continue to counter the common perception that eDiscovery is a ’high-cost/big case Federal court’ area of practice. In fact, like most legal work in the U.S., the majority of the cases and the median costs appear at the low end of their respective ranges and that number continues to grow more than the high end number.
At the same time, the cost spent on those services has dropped, reflecting what appears to be smarter consumers using technology more effectively while forcing increased commoditization of eDiscovery services.
Methods and Services
The strong trend of in-house performance of eDiscovery services that started last year continues with 55% of respondents doing some form of in-house eDiscovery. In-house processing is at 48% while 60% are doing some form of in-house document review. A more specific breakdown of in-house tasks shows that on the technical side, 48% are doing collection themselves, while 59% performed redactions as part of the review process. Deduping picked up noticeably to 26%.
On the non-technical side, 48% engaged in some form of overall eDiscovery project management (the same as last year) while 40% performed Early Case Analysis, up from 25% last year. Only 37% said they rely on an outside service provider compared to 33% last year, while the hiring of an independent consultant ticked up to 37% from 26%.
The choice of outside service providers continues to be widely diversified. Of the 26 named providers, none had a double digit response and the single largest response was “Other”, where a list of small local companies figured heavily. Applied Discovery was the biggest loser, dropping from first place last year at 28% to 14% while Kroll dropped from 25% to 21% where they were joined by Advanced Discovery, FTI and DTI. Clearwell also showed a strong surge from 1% to 7%.
The “Other” response dropped dramatically from 41% to 21% but it is important to note that once again this year, this question, like several others, continues to have more non-responses than answers. 79% of the respondents did not answer this question and that margin may, in fact, dilute the significance of the specific answers.
Software of Choice
Just as with the choice of service providers, the selection of software continued to show major shifts although long-time leader Summation held steady at 33%. But Concordance rebounded from 30% to 47% and Ipro did the same from 9% to 14% local product Relativity and Thomson-owned CaseLogistix each jumped from 19% to 38%
Clearwell however dropped from 9% to 4% and Autonomy dipped from 6% to 5% a score shared by Catalyst.
Web-based products showed similar diversity:
On the Web
These numbers show a continued rise in web-based applications to host eDiscovery documents. No single product dominated the responses, although Relativity retained its home field advantage at 45% (33% last year). Case Logistix also jumped from 17% to 32%. Catalyst remained at 5% while IConnect was a strong 22%. And the biggest winner? Lexis Nexis™ FYI which last year had dropped from 37% to 10%, this year rebounded to 27%.
And in another positive note, the “Other” response went from the largest number last year to only 9% this year, with last year’s favorite response “I don’t know” not appearing at all. Once again this year, the numbers reflect a diverse use of products and lack of clear market domination by any one product. But I also believe the drop in overall numbers reflects the increase in smaller cases which cannot afford the vast majority of web based ED products on the market.
Technology-Assisted Review (TAR)
A new question in this year’s survey asked, “Have you specifically employed or used any type of predictive coding, concept searching or analytic software for your e-discovery?” Only half the respondents answered this question and of those, 20% said “yes”.
When asked if these product(s) helped speed up the eDiscovery review process, 83% of the TAR users said “yes”, with the most common response being “I got to the most important documents quicker.” Of those same respondents, ALL of them said that this process also lowered their costs, with reasons ranging from “faster search”, “gave me less documents to review which lowered final cost” and “lowered my spend with my outside vendor.”
Most Important Issues Regarding eDiscovery
Several questions were asked about the scope of the eDiscovery process and most answers continued to show strong opinions that jumped to the forefront last year, with one significant exception: The number one concern of respondents was again price, increasing slightly from 48% to 50% while review costs increased from 14% to 20%
Processing dropped from 13% to 10%, while judicial decisions dropped from 7% to 3%, and concept searching remained at 7%. Predictive coding fell off the chart altogether as a major issue. What leaps out as a new issue of prominence is technical competence due to the scope of many new rule changes and bar association opinions in 2014 and early this year. 33% of the respondents felt technical competence was a major issue, putting it second only to price.
When it came to simplifying the eDiscovery process, all categories stayed roughly the same as last year. 41% stated they would like to see the processing stage simplified, compared to 44% last year. While 27% would prefer to see collection made easier compared to 26% last year. Changes to review went from 37% to 34% and identification from 26% to 18%. Early Case Assessment ticked up slightly from 29% to 31%.
The two top issues listed by the respondents were overall price and technical competence, the latter being a sharp change in previous years’ answers. And once again, when asked to discuss specifics of their litigation hold experience, more respondents skipped the questions and 80% of the respondents said they were not involved in crafting litigation holds for clients. So what exactly does that tell us? Cost remains the leading concern but ‘technical competence’ has replaced ‘education about the process’ as the second biggest concern.
As we have noted for the past two years, eDiscovery has matured into an integral part of the litigation process, cutting across all the legal demographics of firm size, case values and attorneys. This year’s results supports that even more with attorneys from all firm sizes responding to the questions and small firms not dominating the responses as they did last year. Case decisions and eDiscovery-specific rules continue to dominate the resource landscape. But now we see technical competence in its first-time appearance as a major issue. This is compelled by attorneys becoming more aware of the need to understand their ethical responsibilities in the eDiscovery part of their practice.
Well-known products such as Summation and Concordance continue to see the market share erosion of the past two years continue and web-based applications continue to grow in usage. Cost continues to be a major issue and attorneys continue to press for easier technical solutions to procedures such as collection and processing. And while many firms turn to fullservice eDiscovery vendors for support on those procedures, last year’s trend of in-house functionality continues to grow. The emergence of TAR as a factor is clear and shows the increased understanding and comfort with eDiscovery technology is growing.
Yet we continue to see unanswered questions which seem to reflect signs of unfamiliarity with many phases of eDiscovery. The need for greater technical knowledge reflects that uneasiness and the return to prominence of conference and even printed material as resources shows the continued market for developing that knowledge level.
About our author Tom O’Connor
Tom is a nationally-known consultant, speaker and writer in the area of computerized litigation support systems. He is currently Senior ESI Consultant at Advanced Discovery. Tom’s involvement with large cases led him to become familiar with dozens of software applications for litigation support and he has both designed databases and trained legal staffs in their use of eDiscovery tools. Tom is also the author of The Automated Law Firm, a guide to computer systems and software published by Aspen Law & Business and The Lawyers Guide to Summation, published by the ABA.
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