In their latest survey, entitled “E-Discovery Market Trends: A View from the Legal Department,” Enterprise Strategy Group (ESG) analysts Brian Babineau and Katey Wood analyze a number of interesting statistics and provide a range of insightful conclusions.  By surveying general counsel from large, mid-market (500-999 employees) and enterprise-class organizations in North America they were able to dive into a range of eDiscovery topics, including pain points, operational expenses and prioritizations on a go-forward basis.  Some are more intuitive than others, but in either case the results serve as good calibration metrics for those who endeavor to understand the corporate eDiscovery state of the nation.

“Most corporations are not tracking e-discovery spending…” In what may be the most notable finding of this ESG report, 60% of survey respondents claim that they did not track annual eDiscovery spending in 2010.  The authors correctly note that the eDiscovery process, “which can be highly unpredictable due to its project-by-project nature to begin with, has historically been outsourced to service providers charging at variable rates and often billed back to companies via their law firms.”  Despite the significant challenges of tracking eDiscovery spending, it’s nevertheless irresponsible for organizations to keep their heads in the sand regarding such a significant operational expense.

As the old saw goes, “you can’t manage what you can’t measure,” so it’s almost inconceivable to think that so many organizations aren’t tracking such a significant expense category.  For organizations who want to create a repeatable business process, as opposed to the fire-drill chaos that is typically associated with eDiscovery, it’s vitally important to accurately capture core eDiscovery metrics.  For starters, it’s useful to understand basic collection parameters, such as of the typical numbers of key custodians, average data volumes per custodian, data expansion rates, de-duplication statistics, etc.  Once these metrics are in place, it then becomes possible to manage the process and reduce costs.

Katey went on to expound in an exclusive quote for EDD 2.0:

“E-discovery can be managed as a strategic business process with an understanding of costs, performance and outcomes. When there’s no basis for reporting or comparison, it’s pin the tail on the donkey.  Corporate litigants won’t ever know they’re getting their money’s worth if they don’t even know what they’re spending.”

“E-Discovery accuracy/efficiency isn’t being measured, in large part.” Similar to the failure to measure eDiscovery costs, a full two thirds of GCs (67%) aren’t tracking the “efficiency and/or accuracy of e-discovery document review.” Until corporate counsel can link expectations of competency/efficiency with oversight and performance metrics, outside law firms will likely avoid having their feet held to the fire.  This passive stance makes transparency and process improvement difficult at best.  Additionally, this model of having expectations for efficiency, with low or no accountability, doesn’t bode well for the quick adoption of enabling technologies like predictive coding, since the driver has to inherently be the need/desire for increased efficiency (which axiomatically equals lower law firm review bills).

“Corporate information governance and litigation readiness (especially defensible deletion) are a priority, but not yet a reality.” From an internal prioritization perspective, more than two thirds (69%) of respondents identified their desire to expire/delete data more consistently, “thereby limiting unnecessary data retention for future litigation requests.”  Savvy enterprises correctly recognized the “multi-prong threat of unregulated data retention: the large amounts of irrelevant data ultimately produced for legal review, the greater difficulty of hanging onto potentially litigious documents past their required retention periods.”

This finding is very encouraging, and it ties into the upward momentum the industry is seeing regarding information governance generally – particularly linking the reactive (right) side of the EDRM with the logically connected and proactive (left) side of the EDRM.  As a good first step it’s critical to see organizations now associating good information governance hygiene with lower costs and better eDiscovery response times.  The ESG finding also triangulates with results from the recent Information Retention and eDiscovery Survey, which found that companies having good information governance hygiene were often able to respond much faster and more successfully to an eDiscovery/investigation requests, often suffering fewer negative consequences.

The only downside to the positive information governance trend, as reported by the survey, was that,

“while there are great benefits to defensible deletion, internal initiatives for implementing it too often are stymied by difficulty in obtaining cross functional consensus and authorization, particularly as it touches so many other critical processes like regulatory compliance and legal hold.”

“Legal hold processes are still very manual.” Another similar question revealed that many companies are attempting to get their information governance house in order, but are still in the very early stages.  When asked about their  current legal hold notification and tracking process, a whopping 69% of organizations said that they are using a “manual process performed by internal staff using e-mail and spreadsheets, etc.”  And, another 6% said they either had no formal process or tracking mechanism.

Given the risks attendant to flaws in the preservation process this area is ripe for improvement.  The good news is that 54% of survey respondents are intending to improve their legal hold process, with 25% planning improvement within the next 12 months.  This is a healthy acknowledgement that there is risk, and with a modicum of investment (time, personnel, procedures, and technology) the legal hold area can be brought up to current best practices.

The ESG survey is a welcome temperature gauge into the state of corporate legal departments.  It notes, in conclusion, “with the staggering growth, diversity and dispersion of data, the pain e-discovery is currently causing large and serial litigants are only a symptom of the larger problem of unwieldy and under-developed information management affecting all businesses.”  With data insights from the ESG survey, it’s becoming clear that foundational information governance elements (like deploying auditable legal hold procedures, tracking eDiscovery spending, updating data maps, etc.) are desperately needed by the many organizations that want to turn eDiscovery into a repeatable business process.  The good news is that many of these organization have improvements in mind for the next 12 months, and the challenge will be to make sure these proactive projects maintain the same level of organizational urgency that it often present for more reactive tasks.

Background:

Enterprise Strategy Group (ESG)’s Legal Trends Survey Reveals Alarming Inattention to eDiscovery Spending
Source: original article
Author: Dean Gonsowski
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

27 September 2011 — As the economic and legal landscape continues to dramatically shift in the eDiscovery field, law firms across the country are scrambling to determine the best strategic approaches in staffing, technology and processes to best serve their clients and preserve profitability. The Cowen Group’s 2011 Models and Structures Survey collected responses from directors or national managers of litigation support or eDiscovery practice group (EDPG) leadership at 45 major AmLaw 200 firms to determine how they’re handling these and related challenges. Three key findings from the survey stand out:

1.       60% of law firms are planning on increasing their eDiscovery staff in the next 6 months;
2.       40% of law firms have not conducted client litigation profile surveys (to best determine client needs and how to match services to these needs);
3.       Consulting and Project Management are by far the two biggest areas of potential growth.

For more click here.

Background:

Cowen Group Survey Reveals Continued eDiscovery Hiring
Source: original article
Author: posselist
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

In the 2009 Socha Gelbmann E-Discovery Survey, consultant/attorney George Socha, president of Socha Consulting and Tom Gelbmann, managing director of Gelbmann & Associates, have jettisoned their traditional vendor rankings and instead offer analysis of a turbulent e-discovery year. On Law Technology Now, host Monica Bay welcomes George and Tom to explore their survey findings, discuss the year ahead and look at the growth of EDD.

Background:

The 2009 Socha Gelbmann E-Discovery Survey
Source: original article
Author:
Categories: Electronic discovery, e-discovery, ediscovery

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SharePoint and Facebook top list of most relevant sources of electronic evidence in each medium, commanding 61 percent and 79 percent of responses, respectively

Background:

Clearwell Systems Survey Finds Cloud and Social Media Applications will be Twice as Relevant in E-Discovery by End of 2011
Source: original article
Author:
Categories: Electronic discovery, e-discovery, ediscovery

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The EDRM XML Toolkit Subgroup would like your help!

Please take a moment to let us know what the subgroup can do for you. Answer the three questions at the EDRM XML Toolkit Survey.

Thanks!

Background:

EDRM XML Toolkit Survey
Source: original article
Author: George Socha
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

The EDRM Metrics group would like your help!

Please take a moment to complete an EDRM Metrics Privilege survey. Answer the questions at Ehttp://edrm.net/9098.

Thanks!

Background:

EDRM Metrics Privilege Survey
Source: original article
Author: George Socha
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

On this edition of Law Technology Now, host Monica Bay chats with George Socha, Founder of Socha Consulting LLC and Tom Gelbmann, Founder of Gelbmann & Associates about their 2010 Socha/Gelbmann E-Discovery Survey. Will small cases be the new “big” in 2011? Why are some e-discovery attorneys jobless and others being poached? And what do lawyers really want from vendors? Tune in!

Background:

The 2010 Socha/Gelbmann E-Discovery Survey
Source: original article
Author:
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Symantec today issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information (ESI) that we see expanding by the minute.  Perhaps counter intuitively, the survey of legal and IT personnel at 2,000 enterprises found that email is no longer the primary source of ESI companies produced in response to eDiscovery requests.  In fact, email came in third place (58%) to files/documents (67%) and database/application data (61%).  Marking a departure from the landscape as recently as a few years ago, the survey reveals that email does not axiomatically equal eDiscovery any longer.

Some may react incredulously to these results. For instance, noted eDiscovery expert Ralph Losey continues to stress the paramount importance of email: “In the world of employment litigation it is all about email and attachments and other informal communications. That is not to say databases aren’t also sometimes important. They can be, especially in class actions. But, the focus of eDiscovery remains squarely on email.”   While it’s hard to argue with Ralph, the real takeaway should be less about the relative descent of email’s importance, and more about the ascendency of other data types (including social media), which now have an unquestioned seat at the table.

The primary ramification is that organizations need to prepare for eDiscovery and governmental inquires by casting a wider ESI net, including social media, cloud data, instant messaging and structured data systems.  Forward-thinking companies should map out where all ESI resides company-wide so that these important sources do not go unrecognized.  Once these sources of potentially responsive ESI are accounted for, the right eDiscovery tools need to be deployed so that these disparate types of ESI can be defensibly collected and processed for review in a singular, efficient and auditable environment.

The survey also found that companies which employ best practices such as implementing information retention plans, automating the enforcement of legal holds and leveraging archiving tools instead of relying on backups, fare dramatically better when it comes to responding to eDiscovery requests. Companies in the survey with good information governance hygiene were:

• 81% more likely to have a formal retention plan in place
• 63% more likely to automate legal holds
• 50% more likely to use a formal archiving tool

These top-tier companies in the survey were able to respond much faster and more successfully to an eDiscovery request, often suffering fewer negative consequences:

• 78% less likely to be sanctioned
• 47% less likely to lead to a compromised legal position
• 45% less likely to disclose too much information

This last bullet (disclosing too much information) has a number of negative ramifications beyond just giving the opposition more ammo than is strictly necessary.  Since much of the eDiscovery process is volume-based, particularly the eyes-on review component, every extra gigabyte of produced information costs the organization in both seen and unseen ways.  Some have estimated that it costs between $ 3-5 a document for manual attorney review – and at 50,000 pages to a gigabyte, these data-related expenses can really add up quickly.

On the other side of the coin, there were those companies with bad information governance hygiene.  While this isn’t terribly surprising, it is shocking to see how many entities fail to connect the dots between information governance and risk reduction.  Despite the numerous risks, the survey found nearly half of the respondents did not have an information retention plan in place, and of this group, only 30% were discussing how to do so.  Most shockingly, 14% appear to be ostriches with their heads in the sand and have no plans to implement any retention plan whatsoever.  When asked why folks weren’t taking action, respondents indicated lack of need (41%), too costly (38%), nobody has been chartered with that responsibility (27%), don’t have time (26%) and lack of expertise (21%) as top reasons.  While I get the cost issue, particularly in these tough economic times, it’s bewildering to think that so many companies feel immune from the requirements of having even a basic retention plan.

As the saying goes, “You don’t need to be a weatherman to tell which way the wind blows.”  And, the winds of change are upon us.  Treating eDiscovery as a repeatable business process isn’t a Herculean task, but it is one that cannot be accomplished without good information governance hygiene and the profound recognition that email isn’t the only game in town.

For more information regarding good records management hygiene, check out this informative video blog and Contoural article.

Background:

Email Isn’t eDiscovery Top Dog Any Longer, Recent Survey Finds
Source: original article
Author: Dean Gonsowski
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

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.