By Tom O’Connor
The Law Bulletin Publishing Company has just concluded its 7th Annual eDiscovery and Technology Survey of Illinois attorneys. 144 lawyers replied to the survey, almost exactly the same number as last year. This year’s survey asked 34 eDiscovery-specific questions regarding attorneys experience with eDiscovery matters, vendors and products. The final two questions asked for responses on the most important eDiscovery issues as well as thoughts on litigation hold policies.
The respondents to the survey represented a good cross-section of practitioners, with the majority being in private practice (73% – slightly higher than the past three years level of 70%), 10% in government practice (down from 13% last year) and 9% in corporate practice, down slightly from 10% from last year. The remainder were in a variety of administrative, teaching or public service roles.
Of the private practitioners, 35% were in a solo practice (up from 20% last year) while respondents from firms between two and twenty attorneys at 32% dropped from 38%. Firms between 20-50 were at 9% (down 4%) while firms over 50 dropped again from nearly 1/3 of the total respondents two years ago to 23% this year. Firms over 300 also dropped significantly from 11% last year to .05% this year. The distribution of responses has clearly gone from a more balanced set of answers from both small and large firms to one where 2/3 of the responses now come from solo or small firms.
The number of partners answering continues to grow at 43% (from 32% two years ago) with 15% being associates (12% two years ago). In-house counsel remained steady at 9% while the number of non-attorneys dropped dramatically from 42% last year to 14% this year. The trend last year was more involvement from large firm participants such as partners and an increasing number of ediscovery specialists, including IT managers, practice managers, paralegals, claims examiners, law students and even document reviewers. The rise in solo and small firm respondents this year has clearly reduced the number of answers from non-attorneys.
46% of the respondents identified themselves as litigation specialists, with specific areas of Family Law, Personal Injury and Insurance dominating their practice areas. Coporate law dropped from 19% to 9% , with drops in other areas such as Taxation (13% to 7%), Real Estate (18% to 14%), Finance (12% to 7%) also reflecting the lower large firm responses. Probate law increased slightly from 8% to 9% while Bankruptcy remained the same at 7%.
Once again this year, an extremely high number of the respondents (53%) did not answer the very first question. This is still an improvement from two years ago, when more people skipped the question than answered it, but seems to reflect an ongoing lack of awareness of how ediscovery rules and principles are evolving.
Although 74% of the respondents knew about the 7th Circuit ED Pilot Project which has been underway in Chicago for the past three years) only 5% had heard of the pilot project in the USDC for the Southern District of New York. 46% were familiar with the EDRM project (down from 51% last year) and the Georgetown ED Academy had a similar drop off from 17% to 10%.
Just as familiarity with the EDRM project dropped, so too did the rate of knowledge with the components of that project. 45% felt they were familiar with identification (54% last year), 37% with processing (50% last year), 58% with review (61% last year) and early case analysis went form 62% to 54%.
But familiarity held steady with both the Meet and Confer process at 53%, although 80% said they had not actually participated in a Meet and Confer and of those who did, 82% didn’t know if it helped lower the costs in their matter. Also holding steady were knowledge of litigation hold requirements at 78% and, curiously, collection procedures at 54%.
Sources of information showed some significant shifts. Case law (39%) and court rules (38%) continued to be the leading sources, but conferences rebounded from last year’s 30% to third place at 36% while RSS feeds finished close behind that at 34%.
Print media dropped to 17% from last year’s 31%, better than the previous years and websites also dropped from 36% to 30%. Consultants dropped from 21% to 16% while vendors dropped from 18% to 13%. Social media stayed roughly the same at 5%.
The rise in small firm respondents appears to have changed the scope of answers to this question from last year’s even distribution of electronic sources. This year, responses are spread around a number of web sites, led by the Chicago Daily Law Bulletin and then sites from professional organizations such as the ABA, Illinois Bar and Chicago Bar Associations.
Direct RSS feeds and conferences are a much higher source of information for this group and they are less reliant on consultants and print media. But lawyers clearly continue to think that there are multiple sources of information and are availing themselves of most of them.
How Much Is That Case Worth?
The surge in small firm respondents and subsequent drop in answers from non-attorneys resulted in an increase in people saying they handled matters involving eDiscovery from 42% to 50%. Of those, 23% said that their ED caseload had increased from last year, continuing a decrease from the high of 31% two year ago.
22% of those had matters valued under $100,000 (down from 30% last year) while cases valued between $100,000 and $1,000,000 jumped from 20% last year to 33% this year.
But for those who had cases, the number spent less than $50,000 on ED services held steady at 70% while the number spent between $50,000 and $1,000,000 went from 25% to 33%.
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 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.
Methods and Services
Like last year, the current survey shows that in-house performance of eDiscovery continues as a strong trend. 57% of respondents are doing some form of in-house eDiscovery. In-house processing is at 36% while 61% are doing some form of in-house document review. A more specific breakdown of in-house tasks shows that on the technical side, 54% are doing collection themselves, while 60% performed redactions as part of the review process. Deduping dropped slightly, from 20% to 15%.
On the non-technical side, 48% engaged in some form of overall ED project management (55% last year) while 25% performed Early Case Analysis. Only 33% said they rely on an outside service provider compared to 35% in 2011, while the hiring of an independent consultant took a slight drop from 33% to 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 continued its strong showing from last year and came in first at 28% followed closely by Kroll at 25%. The next strongest were FTI at 15% with DTI and Clearwell at 1%.
The “Other” response jumped from 25% to 41%. But it is important to note that this question, like several others, continues to have more non responses than answers. 77% of the respondents did not answer this question. That margin may, in fact, may 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. Several long-time leaders in this area dropped, including Summation ( 47% to 32%), Concordance (44% to 30%) and Ipro (18% to 9%).
Diversity continued to be the rule with numerous companies mentioned here including Relativity and CaseLogistix at 19%, Clearwell at 9% Autonomy at 6%.
Web-based products showed similar diversity but with some different names.
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 33% (39% last year). Case Logistix jumped into second place with 17% and FYI, Catalyst and IConnect all showed the same response rate. Lexis Nexis’ FYI dropped the most from 37% last year to 10% this year.
But the largest response in this category is also “Other” with the greatest response being “I don’t know”. This answer baffles me.
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.
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. The number one concern of respondents, price, took a drop from last year at 57% to 48% this year. Processing was second at 23% and collection third at 20%.
But education stayed at 17% to capture fourth place, above both review costs (14%) and predictive coding at 8%.
Judicial decisions held at 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 whether they used predictive coding, concept searching or other analytics software, only 4 respondents even answered the question and one of them said the product didn’t help them.
When it came to simplifying that process, 44% stated they would like to see the processing stage simplified compared to 64% last year while 26% would prefer to see collection made easier compared to 45% last year. Changes to review went from 34% to 44% and identification from 29% to 26. ECA held steady for the third year in a row at 29%.
The two top issues listed by the respondents are overall price and processing cost but the next two, education and litigation holds, are not price related. And when asked to discuss specifics of their litigation hold experience, more respondents skipped the questions than answered them.
So what exactly does that tell us? Cost is still the leading concern but education about the process is a close second.
We noted last year that eDiscovery had clearly matured into an integral part of the litigation process. It not only continues to cut across all the legal demographics of firm size, case values and attorneys, but this year’s results show that small firms are becoming much more involved in the eDiscovery discussion. Case decisions and ED-specific rules continue to dominate the resource landscape but education on the ED process has jumped significantly as a major issue as attorneys become more aware of the need to understand their ethical responsibilities in this part of their practice.
Well known products such as Summation and Concordance continue to see the market share erosion we first saw last year as web-based applications continue to grow in usage. Cost continues to be a major issue but attorneys continue to press for easier technical solutions to procedures such as collection and processing. And while many firms turn to full-service ED vendors for support on those procedures, an increasingly larger number are performing them in-house, also a sign of increased understanding and comfort with Ediscovery as a whole.
Yet we continue to see signs of unfamiliarity with and even fear of eDiscovery as a whole. Education remains a top concern of both judges and attorneys, so the continued growth of web sites and conferences will undoubtedly carry over through the remainder of this year.
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.