4th Annual eDiscovery Survey Shows It’s All About Choices

Note to readers:  Updated with more results as of April 14, 2011.

By Tom O’Connor

Overview

The Law Bulletin Publishing Company recently conducted its 4th Annual eDiscovery and Technology Survey of Illinois attorneys. Just under 100 lawyers responded to the survey that asked 17 questions about their level of exposure to eDiscovery matters, experiences with electronic discovery vendors, and products. The final question asked for their thoughts on the most important issues facing them in this ever-increasing area of practice. Visit this link for Dave Glynn’s analysis of the technology questions in the survey.

Who’s Who?

The respondents to the survey represented a good cross-section of practitioners, with the majority of respondents (70%) being in private practice and 8% each in government and corporate practice. The remainder was in a variety of administrative, teaching or public service roles.

Of the private practitioners, 18% were in a solo practice, 12% practicing in firms of between two and twenty attorneys as well as firms between 20-50, and 6% in both firms between 50 – 99 and firms over 100. Interestingly, the highest number of answers in this category was no answer at all.

The respondents themselves were primarily partners (41%) with 9% being associates and 4% in-house counsel. All of these numbers were done from last year as an increasing number (25%) of non-attorneys responded to the survey, including IT managers, practice managers, paralegals, claims examiners and even law students.

eDiscovery Initiatives

As with last year’s survey, a major surprise came with the answers to the very first question. Only 13% were familiar with the EDRM project, although that was up from 7% in 2010.  23% knew about the Sedona Project (24% last year) and 10% had heard of the Georgetown ED Academy. (9% last year) And only an astonishing 41% were familiar with the 7th Circuit ED Pilot Project which has been underway in Chicago for two years, although that number was also up slightly from last year’s 30%.

eDiscovery Activities

Despite a stated overall unfamiliarity with the EDRM project, respondents displayed a higher source of knowledge with the components of that project. 36 % felt they were familiar with identification, 41% with collection, and 36% with both processing and review.

In addition, 41% felt they were familiar with litigation hold requirements, 39% with early case analysis and 35% with the meet and confer process.

With regards to meet and confer sessions, 19% said that they reduced the amount of eDiscovery handled in a case, 21% said they did not and 65% said they did not know.

Reference Sources

Sources of information underwent a significant change compared to last year’s numbers. Case law took an enormous jump, with only a 5% response last year to 41% and first place this year. In 2010, 36% of the respondents said that their main source of information on electronic discovery was print media, a number that dropped to 29% this year, with 1/3 of those naming the Chicago Daily Law Bulletin as their primary source. Websites remained the same 25% response as last year. Conferences dropped from 21% to 19%. Social media is having a strong impact, with the combination of new electronic resources (LinkedIn, Twitter and RSS feeds) polling 10%, ahead of both colleagues and consultants at 9%.  CLE dropped off the charts entirely.

What struck me about these figures was that the traditional methods of gaining legal knowledge (print media, reading cases or statutes and discussing issues with other attorneys) actually increased from a total last year of approximately 60% to over 90% based on the significant increase in reliance on case law and court rules. I can only attribute that increase to growing awareness of the FRCP changes as well as heightened awareness of decisions from jurists such as Judge Scheindlin in the Pension Committee case.

But despite dropping in number of responses as the primary source of information, the overall use of electronic sources increased from a 40% response in 2010 to 50% this year, based largely on specific websites (the Chicago Daily Law Bulletin had a 9% response closely followed by a combination of professional organizations such as the ABA, Illinois Bar and Chicago Bar Associations between 6-8% and Thomson West at 4%) and the new resources mentioned above.

How Much Is That Case Worth?

When asked specifically about matters involving eDiscovery, 52% answered that they had handled such a case. This was up from last year’s 43% but still below the 2009 figure of 63%, which may be attributable to the peak in cases two years ago as well as higher number of non-attorneys answering the survey.

26% said that caseload had increased from last year, a rise from last year when 78% said there caseload had remained stable.  28% of those had a matter valued over $5 million, roughly the same as last year, while cases under $1M jumped to 31% with half of those valued under $100K, a real indication that eDiscovery is a major factor in small cases as well as large matters.

22% expected their eDiscovery caseload to increase, down from 36% last year, while 33% expected it to stay stable, down from 53% last year.

Methods and Services

More and more firms are performing eDiscovery work in-house, with 23% of respondents doing in-house processing and 30% doing in-house document review. A more specific breakdown of in-house tasks showed on the technical side that 29% were doing collection themselves while 35% performed redactions as part of the review process, but only 12% performed any type of de-duping. On the non-technical side, 29% engaged in some form of overall ED project management, 27% performed privilege review in-house and 22% performed Early Case Analysis.

16% rely on an outside service provider while only 7% used an independent consultant. As was the case last year, this breakdown is perhaps not so surprising. The respondents answering “yes” to the consultant question were the large firm attorneys with high value cases. The respondents answering “No” were predominately sole-practitioners and small firms.

The choice of outside service providers was much more diverse than last year with 123 responses spread out over 26 different companies. As might be expected, no one vendor dominated this last with the largest single response (Kroll) being 15 with Applied Discovery at 11, Huron at 8 and numerous companies between 3 and 6 (Autonomy, CaseData, Clearwell, DTI, EED, Encore, Fios, Ernst & Young, FTI, Ipro, KPMG, LAW, Ringtail and Stratify).

Software of Choice

Just as with the choice of service providers, the selection of software this year showed much more diversity than in years past. Summation and Concordance continued to be the market leaders in Chicago with 20% and 18% respectively with half of those respondents using both products, but those numbers were down significantly from 40% and 53% last year. After those two products, no other company had higher than a 7% response (Ipro) with 39% of the responses being spread over 10 companies.

On the Web

Another surprise for me this year was that the number of respondents who had used a Web-based application to host their eDiscovery documents held steady from last year’s number of 30%, significantly below the 2009 high of 77%.  Once again I see this as a reflection of the higher number of small firms and solos represented in the past several years.

As with the standard litigation support software mentioned above, no one product dominated the responses. The market leader this year was Relativity at 9%, a product which barely registered last year. In 2010, the top two products were Lexis Nexis FYI (31% ) and IConnect (26%) but each dropped to 6% this year. They were edged out by Ringtail at 7% and were just ahead of CaseLogistix (5%) with CaseCentral showing at 2%.

2% also said they were using a custom application but no one repeated last year’s response that they didn’t know what Web application they were using. The numbers clearly reflect a more diverse use of products and lack of clear market domination by any one product.

Most Important Issues Regarding eDiscovery

Several questions asked about the scope of the eDiscovery process. When it came to simplifying that process, 23% stated they would like to see the processing stage simplified while 22% would prefer to see collection made easier. ECA came in at 20% with identification and review neck and neck at 12% and 11% respectively.

Processing cost was once again the number one concern of respondents but as with last year’s survey it was not a dominant response at 25% (down from 44% last year) It was closely followed by collection issues at 19% (not even in the top three last year) and review costs at 18%., down from 28% last year. Case law jumped to 13% and was followed by education on eDiscovery issues at 12% (down dramatically from it’s number two rating at 32% last year) with deduping at 3%.

Conclusion

So what general trends can we take away from these results? Clearly, eDiscovery continues to cut across all the legal demographics of firm size, case values and attorneys with small cases playing an ever increasing role in the eDiscovery discussion. Case decisions and ED specific rules have become a much larger part of the landscape and more firms are turning to full service vendors for support, but no single service provider is dominating the market in Illinois as the market has become even more diverse and stratified.

Well known products such as Summation and Concordance continue to see their market share erode, both by other desktop products and the continued use of Web based applications. Cost continues to be a major consideration in eDiscovery. Attorneys are increasingly more concerned about the technical aspects of the process such as procedures for collection and processing.

Still a significant number of lawyers continue to remain unfamiliar with the requirements and characteristics of electronic discovery. Education remains a top concern of attorneys and the coming year will see more and more solutions to that need.

Tom O’Connor (below) is the Director of the Gulf Coast Legal Technology Center.

Tom O’Connor, Director of the Gulf Coast Legal Technology Center

Tom O’Connor

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.use of eDiscovery tools and is also 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.

~ by CDLB on April 5, 2011.

4 Responses to “4th Annual eDiscovery Survey Shows It’s All About Choices”

  1. […] Annual eDiscovery Survey Shows It’s All About Choices – http://tinyurl.com/3kovk7p (Tom […]

  2. […] about their experiences with e-discovery vendors and products. At the Law Bulletin’s blog, LexTek Report, Tom O’Connor, director of the Legal Electronic Document Institute, provides a summary of the […]

  3. […] about their experiences with e-discovery vendors and products. At the Law Bulletin’s blog, LexTek Report, Tom O’Connor, director of the Legal Electronic Document Institute, provides a summary of the […]

  4. […] responses from the lawyers. In another article in this Legal Technology Update, eDiscovery expert, Tom O’Connor addresses and interprets the eDiscovery responses. Hey You, Get Off of My […]

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