The part of Fulbright’s Litigation Trends Survey related to e-discovery is helpful for those who want to understand corporate law department’s current approaches to e-discovery, their preparedness, and their progress towards adapting to e-discovery law.

You can download Fulbright’s Litigation Trends Survey here (by filling out the form) or download previous annual trends reports here.

This is the fifth year Fulbright has polled corporate law departments in the U.S. and U.K. on the state of global litigation. The 2008 survey drew input from 358 in-house counsel on both sides of the Atlantic, including 251 U.S. respondents. The survey, initially launched by Fulbright in 2004, is the largest canvas of corporate counsel on litigation issues and trends.

E-Discovery is included in the Trends Survey.

For e-discovery, the report included a number of findings. Fulbright’s press release noted this:

Of course, e-discovery and electronically stored information remain an important part of the litigation process, as a normal part of discovery and document production. And it appears that some jurisdictions may still lag behind on dealing with electronic discovery. Twelve percent of companies said they had been before a court or other litigation tribunal ill-equipped to deal with complex electronic data discovery. For financial services and technology firms, which have mounds of e-files and other electronically stored data, 19% and 18%, respectively, reported facing courts and tribunals not up to the challenge.

Survey Details

Fulbright explains more details about the report for those who are interested in how the survey was conducted:

The 2008 Fulbright & Jaworski Litigation Trends Survey was conducted from May 22 through July 18 by Greenwood Associates, a business research firm in Houston that has produced previous editions of the report. The survey, launched by Fulbright in 2004, is the largest polling of corporate counsel on litigation issues and concerns. This year’s Trends Survey canvassed 358 in-house counsel in the U.S. and U.K. More than two-thirds identified themselves as either general counsel or deputy general counsel with 7% holding title of senior counsel, 10% associate general counsel, and 15% staff counsel.

The 2008 survey asks in-house counsel to consider the types of cases they fear most, as well as their attitudes on outside counsel, litigation costs and staffing, arbitration and regulatory issues, and projections for the future. Most of the respondents identify themselves as principal general counsel and senior counsel.

Spanning 10 industry groups—from financial services to energy, manufacturing, health care, retail, real estate, insurance, education, and technology and telecommunications—companies were spread across all regions of the country and were well represented by size: 22% report revenues under $100 million, while 39% have sales of between $100 million and $999 million, and another 39% at $1 billion and above. Forty-four percent of companies are publicly held (including 58% on the NYSE) and 57% maintain at least one foreign office, with 19% boasting locations in more than 20 countries worldwide.

For a related trends survey, see Kroll Ontrack’s 2008 Electronic Discovery Trends Survey or this discussion on e-discovery trends in the forum.

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November 13-14, 2008
Hyatt Regency McCormick Place, Chicago, IL

ALSP promotes peer-to-peer education by offering top-notch sessions featuring two educational tracks designed for various professional levels, an executive workshop specifically for litigation support managers, a networking reception and ample opportunity for attendees to talk one-on-one with top solution providers. Come away with helpful resources including checklists and industry best practices that you can use for quality control, client satisfaction and efficiency improvement.

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Here is my prediction for changes in the e-discovery landscape during the coming year.

E-Discovery plans will become standard at large corporations.

Companies are increasingly realizing the need to have an e-discovery preparedness plan, which includes procedures for the routine destruction of records and documents, steps to implement a litigation hold, and a documented process for e-discovery once litigation occurs. Large and Frequently litigated companies were the first to establish litigation preparedness plans. Large companies will follow, with smaller companies slowing adapting over the next few years.

Infrequently litigated companies will increasingly utilize e-discovery consultants.

Companies first reaction to FRCP e-discovery rules was to figure out e-discovery on their own. This is great for frequently litigated companies. But companies that are rarely in litigation are finding it is not cost effective to have e-discovery staff on payroll.

Small law firms and solo practice attorneys will increasingly use e-discovery in their cases.

Early adopters, those who use e-discovery in litigation, generally included litigators in large, expensive cases or cases clearly necessitating electronic evidence.  But many attorneys simply ignored electronic evidence, possibly because of the complexity of e-discovery and the cost of e-discovery.

As e-discovery awareness improves, and e-discovery solutions get cheaper, mainstream attorneys are increasingly utilizing e-discovery to find evidence in their cases. For example, family law attorneys are starting to see the value of emails in Gmail and Hotmail accounts. Of course, technology-adverse attorneys may remain resistant to e-discovery; these are the attorneys who have refused Microsoft Word because “WordPerfect will do just fine, thank you.”

E-Discovery pricing models will change.

Should e-discovery be based on the amount of data collected, the amount of data reviewed, the number of custodians, or some other factor? The electronic discovery industry is currently wrestling with these questions and some vendors will likely make changes in 2009, if only to differentiate themselves from other e-discovery vendors.

E-Discovery will increasingly expand to include evidence on the internet.

People are increasingly placing information on the internet. This includes what people post to social networking sites (FaceBook, MySpace, LinkedIn, etc.), web mail providers (Gmail, Hotmail, Yahoo Mail, etc.), online forums, wikis, online office suites (Google Docs, Zoho Office, ThinkFree, Ajax13, etc.). As more information gets posted online, attorneys will increasingly seek online data and computer forensic experts to collect the online data.

E-discovery specialization will increase.

Currently, most e-discovery vendors are generalists. E-discovery is so new that there hasn’t been time for specialization. But as the e-discovery industry gets saturated with vendors, companies will start differentiating by specialization. Further, clients will want vendors to have experience in an e-discovery area before they are retained. For example, every vendor will be able to work with Microsoft Outlook. But when a company needs help with a Cray computer, a 50,000 computer network, or encrypted iPhone records, the company will want a vendor with experience and tools for that niche.

Law firms will increasingly establish cross-function e-discovery teams.

As e-discovery becomes more popular, law firms need to have a team that can respond to e-discovery projects. Teams will be comprised of attorneys, paralegals, and IT professionals who can work together to respond to e-discovery tasks that arise from the firm’s litigation.

The electronic discovery industry will continue to grow.

The increasing utilization of e-discovery in litigation will result in higher demand for attorneys who understand e-discovery and vendors who can do the technical e-discovery work. E-discovery is in its infancy, and it will experience another growth spurt in 2009.

That’s my prognostication. What electronic discovery trends or changes do you think will occur in 2009? Leave comment below or talk in the eDiscovery Forum.

The report is an international survey of in-house counsel and their practices for managing electronically stored information (ESI) in litigation and internal investigations. The report also separates the findings between the United States and United Kingdom.

The report notes that people are becoming more aware of e-discovery and more states are enacting laws to govern e-discovery.

The report notes a number of interesting results. For example:

United States companies spent an average of $437,000 on e-discovery, which includes planning and practice management. Compare that to U.K companies that spent an average of £208,000 on e-discovery.

You can obtain a copy of Kroll Ontrack’s 16-page Second Annual ESI Trends Report by filling out the form here: 2008 ESI Trends Report.

The 2007 version of the ESI Trends Report is available here: 2007 ESI Trends Report.