In the fall of 2012, we interviewed 30 inside counsel to identify the most important trends that will transform e-discovery in the next decade, and to solicit their guidance on how to navigate this altered landscape. All of the respondents worked for Fortune 1000 companies and all had e-discovery responsibilities.
Key themes in this year’s interviews ranged from the promise of technology-assisted review to the impact of Big Data. Participants’ insights focused on four key areas:
Almost all of the respondents expect e-discovery to be different in 2015. Participants characterized their views with the hope of growing judicial guidance tempered by the fear of an unprecedented pool of unmanageable data. More than half cited predictive coding as the key technological shift that could alter the balance of reasonableness and proportionality in the coming years. With the promise of broader information governance, lower-cost solutions, and expedited litigation, many foresee greater efficiencies in e-discovery.
Social media, cloud-based data storage and a growing “bring your own device” (BYOD) work environment are creating a “big data” perfect storm. This threat is beginning to overwhelm legal departments of all sizes. In-house counsel concerns range from identification and collection of disparate information to the cost and security of the entire e-discovery process.
As e-discovery technology and processes evolve and grow more complex, counsel increasingly recognizes the value of experienced service provider partners. While counsel maintains control of the process and the budget, service providers are proving their value, from predictive coding as a defensible service offering to project management and secure cloud-based software.
This year’s study reflects a dramatic rise in the number of in-house lawyers who can quantify their spending on e-discovery. Though they often shared the numbers in ranges, most were generally more familiar with their organization’s e-discovery spending than in the past few years. There is also a movement to better calculate, track, and reduce spending, which may represent a tipping point in the cost-control challenge that continues to concern corporate law departments.
The full Advice from Counsel study summarizes these findings in greater depth. It also discusses other predictions and advice from leading in-house lawyers.
What will e-discovery be in the future? What will be the main challenges? What technology and processes will be used, and what will be the costs? Who will be the key practitioners and what education and training will they need? These questions were just a few of the many asked of 30 in-house attorneys by Ari Kaplan Advisors in the fall of 2012. Their candid and practical advice offers a window into the changing digital landscape of modern litigation. It reflects a universal understanding and a shared sense of responsibility for influencing the trajectory of e-discovery in the coming years.
This study summarizes the key areas of agreement, as well as certain issues of contention, with the goal of providing a roadmap for piloting process enhancements and cost-effective technological improvements for counsel. Similar to the three previous Advice from Counsel studies, this year’s study is intended to provide readers with qualitative and anecdotal advice beyond the quantitative statistics included in many industry reports. The interviews with leading practitioners yielded a number of insights that are shared directly in their own words and help characterize the trends driving the e-discovery market.
Ari Kaplan Advisors personally interviewed 30 in-house legal professionals with responsibilities that included e-discovery. All participants were from Fortune 1000 corporations and spoke by telephone, under condition of anonymity, in October and November 2012. The results of this study reflect the second consecutive year of 100% corporate counsel participation, up from 72% in 2009 and 97% in 2010.
Of this year’s participants, 90% select e-discovery tools and vendors for their organization; 83% implement e-discovery technology; 93% manage e-discovery tools and vendors; and 97% develop and implement e-discovery processes.
The vast majority of participating organizations had total annual revenues greater than $10 billion and over 10,000 employees – 70% and 86%, respectively. In terms of litigation events over the past 12 months, 37% reported managing more than 500 litigation events and 20% reported managing more than 2,000 litigation events.
*Note: Figures do not total 100% due to rounding.
In many ways, 2012 was a watershed year for e-discovery – from high-profile court rulings on predictive coding, to ongoing market consolidation of providers and software vendors. How were these changes impacting counsel, and what were they planning for the future? In this year’s Advice from Counsel study, unlike in previous years, we asked our panel of e-discovery practitioners for their thoughts and educated guesses on the future of e-discovery. And, where appropriate, we included data from previous years to compare and contrast changes in perception.
No matter current adoption rates, predictive coding will be a key e-discovery tactic in 2015, according to 57% of respondents. This indicates that predictive coding continues to gain interest within the industry, considering that in the previous year’s survey 55% of respondents said they were considering the use of predictive coding. Many respondents expressed optimism that predictive coding technology can better automate the review process and dramatically reduce costs.
While expectations for predictive coding were high, many respondents noted that the technology was evolving quickly, requiring acceptance from the courts, new skills from e-discovery practitioners, and necessitating greater partnership with predictive coding services providers. In this ideal, corporations could conduct predictive coding in a defensible manner, reduce the costs of e-discovery while keeping internal control of the process, and rely on a service provider partner to constantly innovate on the technology.
Reflecting expectations that predictive coding will play a greater role in e-discovery, respondents broadened the list of skills helpful for future e-discovery practitioners. While legal and technology aptitude remained high at 83% and 77% respectively, respondents also listed new, and perhaps surprising skills – including statistics, accounting, project management and linguistics.
While many acknowledged that there is no formal curriculum for this diverse skill set, representative comments include:
A large number of respondents maintained that a core legal and technology understanding would always remain in demand, but that for more specialized skills, including statistics, project management and data privacy processes, service provider partners would augment the company’s skill sets.
It’s interesting to note that just four years ago, in the first Advice from Counsel study (2009), respondents were primarily focused on enabling greater collaboration between legal and IT.
Connected with the last point, 73% of the respondents noted that future management of e-discovery would be more team-oriented and consist of a combination of influence from in-house counsel, outside counsel and providers. Additionally, 60% of the respondents said that they would prefer to buy predictive coding as a service, versus 33% preferring to buy it as a software.
Two important themes emerged from discussions on who would conduct e-discovery: the increasing importance of collaboration across inside counsel, the law firm and service providers, and the need to clearly define roles.
“There will be a lot more openness and cooperation between all of the participants,” one attorney remarked. “I don’t know anyone who is doing it alone,” added another. Many agreed, “Vendors will have a large role, with cooperation and assistance from both in-house counsel and outside counsel.” One specifically encouraged peers to seek outside support: “Organizations would be wise to bring in third-party consultants to assist.”
And while the degree of involvement may vary, the consensus was that there would be a role for each group in the future. “Outside counsel will always have their hands in it. In addition, some companies will bring more of the work in house for cost-saving purposes, but vendors will become more and more involved as time goes on,” noted one lawyer. Technology is also impacting this shift and “There will always be a place for vendors because they are continuously developing the technology.”
Ultimately, many agreed that e-discovery is a specialized area and predicted a rise in the number of in-house lawyers with e-discovery in their title. These lawyers will work directly with records management and IT to ensure that the company addresses the law department’s interests in data retention or reduction. “The likelihood of having those titles and a career path there is greater than it has ever been and will continue to grow,” said one participant.
A big reason why providers will continue to play a large role in e-discovery, according to respondents, is the advent of e-discovery in the cloud. In the prior year, 52% of respondents indicated a growing interest in using cloud applications for e-discovery, but had no specific plans. In this year’s study, 37% of respondents are currently evaluating the use of a legal review tool in the cloud and are doing so for a variety of reasons, including freedom, cost-control, and a continuing interest in being more efficient. “Cost is a driving factor,” said one respondent. “We have looked at it and would definitely consider it because it offers us leverage and flexibility,” said another.
Some are simply trying to keep pace with their peers. “It is out there now and everyone is doing it,” one lawyer said. “We want to explore all of the options and make sure we are picking the right one,” the lawyer added.
Still others are not ready. “There is a hesitation to deal in the cloud until we understand it,” noted one participant. “I’m not convinced of the safeguards; I probably will be, but not yet,” said another. Indeed, security in the cloud remains a sticking point for many. The ability to access, control and protect discovery data will remain a baseline requirement for providers offering cloud-based legal review software.
64% of the in-house lawyers participating in the survey noted that the impact of “Big Data” on e-discovery requests will be the overwhelming challenge for the foreseeable future, followed equally at 32% by “social media and data in the cloud” and “the emergence of the ‘bring your own device’ environment becoming a workplace norm.” A notable 14% believe that the ongoing conflict between US e-discovery requirements and data privacy rules overseas will continue to present obstacles to seamless discovery.
“The big data problem cannot be avoided and it is not going to subside in volume or variety,” remarked one lawyer. Ironically, however, “as technology increases, the courts are less sensitive to the burdensome nature of e-discovery,” cautioned another participant.
With respect to using personal devices for work-related matters, “Many of us are dealing with the BYOD issue right now,” noted one in-house respondent, who advised, “There is a lot of competition between IT, which wants to serve the employees, and the legal/ compliance teams, who want it done properly.” One lawyer described it as a “self-inflicted wound,” and another remarked, “The lack of control that corporations are going to have on their information and knowing where to find it will be the biggest issue.”
Since many of the issues are related in that BYOD and social media are causing the exponential increase in data, the participants suggested that legal teams should develop stronger processes that they can implement and audit. That capability is particularly important since many remain concerned with the treatment of these issues by the judiciary. “How the courts deal with the amount of personal sources of information that may need to be accessed in the future is key,” noted one lawyer.
As with any discussion on e-discovery, cost was a recurring theme during all of the interviews. Despite the advances expected with predictive coding, emerging challenges such as increasing data volumes, complex data types such as from social media and the cloud, as well as increasing international discovery demands provided such a counterweight that 47% of counsel expect e-discovery costs to increase over the next few years. Roughly the same number of participants (27%) thought costs would decrease or stay the same.
That said, counsel offered three key areas to focus on to help ease the cost burden:
1. Process: Document the processes used across internal and external resources, and implement training and/ or incentives to ensure these processes are repeated in a disciplined manner.
2. Technology: Advanced technology like analytics and predictive coding, used in combination with repeatable processes, can help provide cost savings.
3. Review Management: First-pass review is perhaps the most expensive step in the entire e-discovery process, and respondents have found cost savings in using managed review providers for this phase of review.
The emphasis placed on process underscores its importance and complexity. The more sophisticated technology used, and the more techniques employed to save review time (such as segregating documents that are most likely responsive or potentially privileged), the more sophisticated processes will be needed. Inside counsel, outside counsel and service providers all play a role in utilizing repeatable processes to help streamline e-discovery, reduce costs, and bring greater budget predictability. E-discovery process and litigation readiness audits can provide best practices for improvements specific to a company’s litigation profile.
The courts were mentioned by 43% of respondents as a catalyst for future change. Judges were growing increasingly savvy about e-discovery, according to respondents, and counsel was hopeful that this would enable the courts to provide additional guidance and improvements on a wide variety of issues, from predictive coding to reasonable collections.
Some of the comments include:
While the primary focus of the interviews was to gather predictions from counsel on the future of e-discovery, the discussions provided insight into the present-day realities for these legal professionals.
60% of respondents revealed that they are able to quantify how much they spend on e-discovery annually. This is a significant jump from the 42% who were able to do so in 2011, the 40% in 2010, and the 34% in 2009. Although, more in-house counsel are familiar with their spending, that knowledge is almost universally based on a substantial range, rather than an exact figure. As an example, one respondent said their company spent $3 to $5 million per year on e-discovery, and another gave “over $10 million” as the annual spend.
One lawyer, who advised that the legal department spends 28% of its legal budget on electronic discovery, stated that “It is easy to capture the vendor and internal spend, but it is more difficult to capture the outside counsel spend because the uniform billing codes did not address e-discovery in the past or did not address them clearly.”
One of the challenges is the diversity of personnel involved. After all, knowing what you are spending is closely linked to tracking it and that is confusing for many in-house lawyers. One lawyer noted that the legal department spends over $1 million on e-discovery, but was not sure of the exact amount because the costs are spread across various business units. “The problem is that the bills are not centralized through the legal team,” reported another participant.
Despite the increased awareness of spending metrics, 40% of participants are still wholly unfamiliar with the amounts at issue. “That is one of our biggest struggles,” reported an inhouse lawyer. “We have a tremendous amount of inefficiency and do not have a means by which we can quantify it,” the lawyer added noting, “It is probably worse than I fear and more than I imagine.”
Others are partially familiar. For example, one lawyer advised that although the legal team spent $200,000-$300,000 for searching, processing, hosting, and filtering data, it could not quantify what it spent on outside counsel fees for review. Another noted: “When we get a large piece of litigation, we spend $500,000/year, but what is harder to quantify is the internal resources specifically devoted to this work.”
Since legal review is the most expensive phase of e-discovery, and privilege coding is the most expensive phase of legal review, it isn’t a surprise that 57% of participants are re-using coding decisions made on documents for previous matters. Given the focus on efficiency, this number is likely to increase. “The company has created a master set of data since several cases have similar themes, including the same custodians and issues,” remarked one lawyer. Many noted that when they manage repeat or related litigation (e.g., patent matters), they preserve the basic coding.
Others, however, recognized their disorganization. “We do not do this nearly enough; we are inefficient and collect some of the same stuff over and over,” admitted one lawyer. Another cautioned “You cannot be so rigid that you apply that designation for the entire lifecycle of the record,” since the issues may change the meaning or impact of a particular document.
Given the concern over Big Data, it was not surprising that 77% of respondents reported that their organizations maintain some type of information governance strategy. In the next few years, these are likely to become more robust and integrated into the overall e-discovery structure since most respondents seemed to believe that their policies offer room for improvement. “It is more in concept than in reality,” said one lawyer. “The company has information governance standards and its employees aspire to a high level of sophistication, but the company is in the early stages of this process,” remarked another.
From discussions on predictive coding workflow, to collaboration and streamlined processes, respondents explicitly asserted the need for high-quality third party professionals. In fact, 60% of counsel listed this as the most important factor in selecting an e-discovery service provider.
As one commented:
“You can have a great technology and a great process, but it is only as good as the people that manage it. It is not only about being technologically savvy, but professionals need to have business savvy and be able to translate something that is highly technical in a way that makes sense to a business person. The people who work with the service provider have to be top notch.”
There was also acknowledgement from the group that top-quality professionals do not come cheaply. As one stated, ““We do not mind paying a premium for a firm that we trust, but then we are also very demanding and expect a high level of service.”
For the most part, criteria scores remained consistent or showed moderate increases. Yet a few areas showed considerable year over year jumps in the “most important” rankings:
Based upon the survey responses, it is possible to forecast coming trends that e-discovery teams should be aware of:
Learn more about themes discussed in this paper: