By Tom O’Connor
The Law Bulletin Publishing Company has just conducted its 6th Annual eDiscovery and Technology Survey of Illinois attorneys. 146 lawyers replied to the survey, down slightly from last year when the number had doubled from 2011. This year’s survey asked 35 eDiscovery-specific questions regarding attorneys’ experience with eDiscovery matters, vendors and products. The final question asked for their thoughts on the most important issues facing them on this topic.
The respondents to the survey represented a good cross-section of practitioners, with the majority of respondents being in private practice (70%, almost identical as the past two years at 69.9% and 70% respectively. ) 13% in government practice (the same as last year) with 8% in corporate practice, down from 11% from last year. The remaining respondents came from a variety of administrative, teaching or public service roles.
Of the private practitioners, 20% were in a solo practice (up 1%), with a slight drop in respondents from firms between two and twenty attorneys at 38% (41% last year but still dramatically higher than the 12% of two years ago). Firms between 20-50 were at 13% (up 3%) while firms over 50 continued last year’s trend of nearly 1/3 the total respondents with 28%. Firms over 300 represented 11% of the total, down slightly from 14% last year. This distribution continues to gives us a very balanced set of answers from both small and large firms.
Of the attorneys answering the survey the number of partners continues to grow at 38% (32% last year), steady with associates at 13% (12% last year) and the 6% in-house counsel, is down from last year’s 10%. The number of non-attorneys responding is at 31% at par with 29% and 25% the past two years. The trend then seems to be more involvement from partners and a steady number of eDiscovery specialists, including IT managers, practice managers, paralegals, claim examiners, law students and even document reviewers participating in the survey.
And while it is no surprise that 44% of the attorney respondents identified themselves as litigation specialists, with specific areas of Insurance, Intellectual Property and Personal Injury. 19% were in Corporate law with another 10% identifying criminal law as their area of concentration. Other specific fields drew even higher representation with Family Law (17%), Real Estate (18%), Taxation (13%) and Finance (12%) in double figures with Probate (8%) and Bankruptcy (7%) close behind.
The answers to the very first question showed mixed results with some return to the results from 2010 and 2011, indicating a disturbing drop in awareness of current educational efforts in the eDiscovery space. Exceptions were that 78% knew about the 7th Circuit ED Pilot Project which has been underway in Chicago for over two years, (80% last year), 51% were familiar with the EDRM project (up from 17% last year and 13% the year before), and 17% had heard of the Georgetown ED Academy (up slightly from 13% last year). That number was 1% ahead of awareness of the pilot project in the USDC for the Southern District of New York.
But these numbers are deceptive. 44% of the respondents did not answer this question at all, which would seem to indicate a far higher lack of knowledge of ongoing eDiscovery educational programs. Although I suppose we can take some solace from the fact that at least this year the number of respondents answering the question was higher than those who skipped it!
Although only half the respondents stated overall unfamiliarity with the EDRM project, a high rate of knowledge with the components of that project continued from last year. 54% felt they were familiar with identification (51% last year), 55% with collection (54% last year), 50% with processing (43% last year) and 61% with review (51% last year).
In addition, 74% felt they were familiar with litigation hold requirements, down only 1% from last year. 62% were familiar with early case analysis (up from 51%), but curiously, only 53% felt familiar with the meet and confer process, which was down from 64% last year.
And as with last year’s results concerning meet and confer sessions, more people answered that they felt the sessions reduced the amount of eDiscovery handled in a case than those who did not (22% to 11%), but the clear majority (67%) still said they did not know.
Sources of information stayed near the same levels as last year’s numbers for case law, the leading response, at 40% (42% last year) and court rules at 37% but several other sources grew in popularity most surprisingly print media which reversed a three year decline and came in at 31%, better than the previous year’s. Websites also rose from 25% to 36%.
Conferences dropped a bit at 30% (down from 34%) while social media had a .5% nudge up. Consultants improved dramatically from 9% to 21% and vendors came in at a strong 18%.
The overall use of electronic sources seems to have leveled off with the majority of respondents referring to specific web sites such as the Chicago Daily Law Bulletin followed by sites from professional organizations such as the ABA, Illinois State Bar Association and Chicago Bar Association. Direct email feeds also leveled off as did social media.
With the rise in favor of consultants and increase in traditional resources such as print media and conferences, what we see is a much more evenly distributed group of resources. Lawyers clearly think that there are multiple sources of information and are availing themselves of most of them.
How Much Is That Case Worth?
When asked specifically about matters involving eDiscovery, 42% answered that they had been involved in an eDiscovery case. This continues the downward trend of the last three years. But I also believe that attorneys are becoming more proactive about eDiscovery as the need for knowledge spreads into numerous case types.
Of those handling eDiscovery matters, 27% said that their eDiscovery caseload had increased from last year, down slightly from last year’s 31%. 30% of those had matters valued under $100,000 with another 20% with cases valued between $100,000 and $1 million. But for those who had cases, 70% spent less than $50,000 on eDiscovery services (64% last year) with another 25% spending between $50,000 and $1 million.
Those figures continue to counter the common perception that eDiscovery is a high cost, big case area of practice. In fact, like most legal work in the US, the majority of the cases and the median costs appear at the low end of their respective ranges.
Methods and Services
Like last year, the current survey shows that in-house performance of eDiscovery continues as a strong trend. 48% of respondents are doing in-house processing (46% last year) while 62% are doing in-house document review (61% last year). A more specific breakdown of in-house tasks shows that on the technical side, 50% are doing collection themselves (51% last year) while 63% performed redactions as part of the review process (59% last year). The number doing deduping jumped the most, from 11% to 20%.
On the non-technical side, 55% engaged in some form of overall eDiscovery project management (54% last year) while 64% performed privilege review in-house (61% last year). 25% performed Early Case Analysis. (27% previously)
43% now rely on an outside service provider compared to 35% in 2011 while the hiring of an independent consultant took a slight bump from 27% to 33%.
The choice of outside service providers continues to be widely diversified. Of the 26 named providers, the number with double digit responses nearly doubled, from 6 to 11. Kroll had an enormous increase from 17% to 45%, with Applied Discovery at 25%, DTI at 20%, FTI and Clearwell at 17% and Ipro at 15%.
The “Other” response took a large dip from 51% to 25% . But it is important to note that this question, like several others, continues to have more non-responses than answers. 72% of the respondents did not answer this question. That margin may, in fact, make the analysis of the answers not significant statistically.
Software of Choice
Just as with the choice of service providers, the selection of software continued to show diversity. Several of last year’s leaders dropped although not dramatically, including Summation (52% to 47%), Relativity (23% to 18%), CaseLogistix (16% to 9%) and Clearwell (13% to 11%)
Those margins appeared to be made up by Concordance which went from 38% to 44% and Ipro, going from 13% to 18% . Other dropped from 29% to 11%.
On the Web
The local application numbers above would seem to presage a rise in Web-based applications to host their eDiscovery documents. But that number also dropped from 65% to 40%. As with the local or desktop products mentioned above, no single product dominated the responses; although Relativity retained its home field advantage at 39% (37% last year). Lexis Nexis FYI jumped the most from 23% to 37% and “Other” was third with 29%.
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 eDiscovery products on the market.
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. When it came to simplifying that process, 64% stated they would like to see the processing stage simplified compared to 40% last year while 45% would prefer to see collection made easier compared to 44% last year. Changes to review went from 38% to 34% and identification from 31% to 29% while ECA held steady at 29%.
The number one concern of respondents took a dramatic turn with 57% answering “Price”. Processing jumped 2 points to 27%, followed by review costs at 23%, and then education at 17%.
Judicial decisions dropped from 14% to 7% and both predictive coding and concept searching came in under 10% again. In fact, despite all the national attention around the predictive coding field, when asked to name their predictive coding product of choice, 96% of the respondents skipped the question.
The top issues listed by the respondents? Price, security and confidentiality. So what exactly does that tell us?
Several trends which began to emerge last year became even more prominent in this year’s survey. eDiscovery has solidified as a distinct segment of the litigation process and continues to cut across all the legal demographics of firm size and case values. Desktop products such as Summation and Concordance continue to see their market share eroded, both by other desktop products and the continued use of Web based applications.
The cost of eDiscovery services continues to be of major concern and firms continue to turn to full-service vendors for support. Despite this trend, it’s important to note that no single service provider has a dominant market share in Chicago. Attorneys are increasingly more concerned about the technical aspects of the eDiscovery process such as procedures for collection and processing. Education of eDiscovery remains a top concern.
But the most prominent change is the emergence of the small case as a major component of the eDiscovery landscape. Only 25% of the respondents had a an eDiscovery matter valued over $1 million while 63% had a case with a value less than $50,000.00. Despite the notoriety of big name cases like Pension Committee or Zubulake, the clear fact is that the vast majority of eDiscovery matters occur at the low end of the spectrum of case worth. This seems to further widen the disconnect between vendors and attorneys and is most likely the reason for most products in the survey showing a decline in usage. If the price of the software exceeds the value of the case, no one will buy it!
Tom O’Connor is the Senior eDiscovery Consultant at Seattle based GGO and Director of the Gulf Coast Legal Technology Center in New Orleans.
Tom is a nationally-known consultant, speaker and writer in the area of computerized litigation support systems. His 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 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.