3rd Annual eDiscovery Survey of Illinois Lawyers
The Law Bulletin Publishing Company recently conducted its third annual survey of Illinois attorneys regarding their experience with technology and electronic discovery. Responses to this year’s survey were somewhat lower than the previous year, returning to the level of the number of respondents in 2008, the first year of the survey. 185 lawyers, IT staff and lit support answered 18 questions that asked about their level of exposure to eDiscovery matters and experiences with electronic discovery vendors and products. The final question asked for their opinion on the most important issues facing them in the eDiscovery practice area.
For the second year in a row, respondents to the survey showed a large representation from small firms and solo practitioners, with 33% being solo practitioners compared to 28% last year and 37% representing firms of between two and twenty attorneys compared to 39% last year. The share of respondents in firms with over 100 attorneys dropped for the second straight year from 25% two years ago to 14% this year.
General counsel recipient numbers stayed steady at 15% and the small remainder of responses was spread fairly evenly between firms of 20-50 and 50-100.
The respondents themselves were spread more evenly between partners/owners (46%) dwarfed associates’ response. The result, even with the high number of solos, was that only 28% of respondents describing themselves as “Decision Makers” with 35% describing themselves as “influencers” and the remainder not answering the question.
Familiarity with Resources
The biggest surprise in the past two surveys was the high number (30%) professing ignorance about the FRCP rules on eDiscovery. I assumed that given the publicity around the 7th Circuit ED Pilot Project, most Chicago attorneys would have a high degree of exposure to the topic by now. I was wrong.
Only 38% of the respondents had heard of the project. Only 24% had heard of the Sedona Conference, only 9% had heard of the Georgetown University Law School ED educational program and, most shocking, only 7% recognized the EDRM project. These numbers continue to astonish me given the high degree of media coverage and ongoing flurry of CLE activity surrounding eDiscovery, especially from several of these sources.
Sources of eDiscovery Trends
Once again, the Internet trumps print media as the main source of information on electronic discovery. In 2008, 45% of the respondents said that print media was their primary source of information with Web sites second at 35%. In 2009, Web sites edged out print media 40% to 38%. This year, the margin was 36% to 25%, continuing a steady decline by print media. E-mail feeds also increased from a 20% showing in 2008 to 27% in 2009 and 31% this year increasing the advantage by electronic sources to nearly three to one at 67% to 25% information, up from two to one last year at 67% to 38%.
Conferences remained flat as an information source from 22% to 21% while consultants increased slightly from 9% to 11% while the percentages who answered either “colleagues” or “case law” stayed at last years level of 5% each. CLE sessions, however, rebounded from last year’s low below 1% to nearly 11%. So while the two year trend of the growing use of non-traditional methods of electronic delivery of information directly to the desktop has continued to develop, the traditional CLE conference has rebounded in popularity at the expense of large conferences. No surprise to the promoters of large national conferences who have seen their attendance eroded by the soft economy as travel budgets have been slashed dramatically.
How Much Is That Case Worth?
This year’s survey specifically asked if the current economic situation has changed attorneys approach to eDiscovery. 83% responded “No”, which was consistent with last year’s response rate of 83%. Of the remainder, the most common explanations for their change was not a budget cut per se, but their increased efforts on technological education and more effective use of that technology. It would seem, then, that the requirements for eDiscovery are not being hindered by the poor economy at least with regards to utilization, when necessary.
Diving off a two-year trend, the number of respondents saying they had actually handled an eDiscovery matter declined to 43%, down from 62% last year and 68% in 2008. Unlike the past two years, the case value was spread out much more evenly from $100,000 to over $5 million with the bulk (22%) now being in the value range under $500,000 and 18% said their case was worth one million or more. 74% stated that their eDiscovery case load had not changed in the past year (up from 70% the year before) with 53% expecting it to stay stable this year and 36% expecting it to increase.
Consultant or No Consultant
The question, “Have you ever hired an electronic discovery consultant or firm?” provided an answer that was not so surprising. 17% of the respondents answered yes, even with last year. Of the 17% that responded, Lexis Applied Discovery bumped Kroll out of the lead with 36% and Kroll followed close behind with 31%. FTI Consulting and Huron Consulting each had 15%. Next were Clearwell and Stratify. Many indicated that they used several vendors.
Another interesting trend here that clearly influenced using outside companies was the increase in work being done in-house, even by small firms. 26% of the respondents had done some degree of in-house processing and 27% had performed some level of in-house review. Half of those were in-house counsel.
Software of Choice
The two most popular products listed as a response to the question about products are once again Summation and Concordance. Their market share continues to erode however as Summation went from 64 in 2008 to 59% in 2009 and 40% this year. Lexis-Nexis Concordance came up a notch, going from 47% each of the past two years to 53% this year.
No other product had a double digit response with IPro at 12%, EnCase at 10% and CaseLogistix, Clearwell and Relativity all at 9% and 15 other products below that. The same diversity that was apparent in the vendor and consultant selection process is apparent here as well. No product can be said to rule the ED space in Chicago.
On the Web
The number of respondents using a Web-based application to host their eDiscovery documents provided a surprise, coming in at 30% after increase in the past two years from 66% to 77%. This is, perhaps, reflective of the dominance in the respondents this year of smaller firms. iConnect dropped out of their first place showing of 16% last year but still ended up with 21%. First place was taken by Lexis-Nexis FYI at 31% and the lack of any complete dominance with over 14 products mentioned once again shows a wide diversity of choices. Also unusual were two choices, the legacy app from J. Feuerstein is still being used by one firm and another ground breaker listed Google docs as the web based app of choice.
This category once again claimed the most curious statistic, with 5% of the respondents saying they DIDN’T KNOW what Web application they were using. That was, however, an improvement over the previous two years response of 11%!
This year, rather than asking respondents to rate their products or vendors, we asked several new questions. The first was “Do you think that e-discovery vendors are effective in defining their services?” 63% said “No” which may well explain why no single vendor or product is garnering significant market share.
We next asked “If you saw an ad for an e-discovery provider in a reputable legal publication, would it influence your decision on which vendor to consult?” 53% said “No” which, of course, means that nearly one half said “Yes.”
Finally, we asked “Do you feel an e-discovery provider that services the entire ED process is more useful than one that only specializes in a portion of the process?” 66% said “Yes” with the most common explanation being similar to this one: “Consistency in handling [all aspects] reduces any chance of duplication of work and/or costs.” The common answer from those who said ‘no’ was, “Some cost-savings are possible with a ‘soup to nuts’ company, however, often times specialists provide better quality of service and degree of expertise than a one-stop shop.”
Most Important Issues Regarding eDiscovery
We also changed this question slightly. Rather than only ask for a single issue, we asked several question. The first was: “What phase of the eDiscovery process would you like to see made much more simple?” This was a “check all that apply” answer. So ‘review’, ‘collection’ and ‘processing’ were in an even heat and ‘identification’ checked as a lesser concern.
We then asked “What do you think is the most important issue regarding electronic discovery?” Most analysts hold that review costs are the largest piece of ED budgets and thus the largest concern, but review costs came in third at 28% behind education. Processing costs are of the greatest concern at 44%. Education was second at 32%, which confirms the finding with regard to knowledge of EDRM and the Sedona Conference. Finally, judicial decisions came in fourth at 15%.
In 2008, 7% of respondents said “I have no idea” in answer to the question on the most important issue. Last year, one person gave that answer. This year the number was back up to 3%. Hopefully this is a factor of more responses from small firms and solos and not a regression in understanding of eDiscovery.
Clearly we are seeing a market fragmentation with no vendor or product dominating market share. And also clearly more technical issues, such as collection, are becoming increasingly important.
About the Author: Tom O’Connor is the Director of the Legal Electronic Documents Institute. Tom is a nationally-known consultant, speaker and writer in the area of computerized litigation support systems. 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 the author of The Automated Law Firm, a guide to computer systems and software published by Aspen Law & Business, now in its fourth edition and The Lawyers Guide to Summation, published by the ABA.