Blistering Pace of EDD Decisions at Mid-Year

Gibson, Dunn & Crutcher has released its 2011 Mid-Year E-Discovery Update, which surveys 187 cases from the first half of this year and analyzes the e-discovery trends. Highlights from the report include:

• The number of electronic data discovery decisions continues to increase at a blistering pace. The 187 decisions the survey identified in the first half of 2011 represents an 82% increase over the 103 decisions identified at mid-year 2010.
• Litigants sought sanctions nearly twice as many times in the first half of 2011 as they did in the same period last year (68 at mid-year 2011 versus 31 at mid-year 2010), and sanctions awards have nearly doubled in absolute terms (38 at mid-year 2011 versus 21 at mid-year 2010).
• Despite the increase in sanctions sought, courts awarded sanctions at essentially the same rate as in 2010 (56% of the instances in which a party sought sanctions in the first half of 2011, versus 55% for the full year in 2010).
• It turns out that there is such a thing as "discovery karma," at least in the 10^th Circuit, and courts may not appreciate "ankle-biting" an opponent for alleged discovery glitches, especially when one's own house is not in order.
• While no reported case addressed the use of predictive coding or other advanced search technologies, there is no doubt that these tools have been noticed, as The New York Times and Forbes focused on their potential impact in featured articles.
• E-discovery law continued to develop rapidly, and while some areas of law are coming into focus, other areas — including basic issues such as whether a litigation hold notice must be written -- continue to be heavily debated.
• Calls for reform of the Federal Rules of Civil Procedure continued, and the Civil Rules Advisory Committee is considering various approaches to address concerns raised at the Duke Conference in 2010.

For more detailed analysis of the 2011 mid-year trends, see the full report on Gibson Dunn's website.

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F&J 2010 Litigation Trends Survey

No Surprises: Fulbright & Jaworski has released its seventh Litigation Trends Survey with the not-unexpected results that the 403 corporate counsel respondents predict another "litigious, cost-conscious" year. Just about all respondents (93% U.S. and 97% U.K.) predicted that legal disputes would either increase or remain the same next year. And 87% of U.S. respondents said they encountered new litigation this year; 54% of all respondents initiated a suit. Also not surprisingly, 42% of energy companies are bracing for more disputes, the report notes.

LTN Vendor Satisfaction Survey: Service Rules!

The results are in from the inaugural LTN Vendor Satisfaction Survey, conducted by our ALM Legal Intelligence research group under the direction of vice president Kevin Iredell. Conducted this winter, via a confidential online poll, the survey asked legal professionals who buy -- or influence the purchase of -- legal technology to review the vendors and to tell us what they want from those vendors. (LTN's editorial team was not involved in the process.)

Anyone who has ever tried to call a major company, from a bank to an airline, will easily predict the criteria that tops the "wish list" -- customer service. Overwhelmingly (77%), respondents screamed for "responsiveness to issues and prompt resolutions."

In our July issue cover story, "Help, Please!" Law Technology News explores the survey, and analyzes its results. Here's a sneak preview of the article!

2009 Socha-Gelbmann EDD Survey Report Available

The full 2009 Socha-Gelbmann Electronic Discovery Survey Report is now available for purchase.  For detail, please contact George Socha (george@sochaconsulting.com, 651.690.1739) or Tom Gelbmann (tom@gelbmann.biz, 651.483.0022).

We are in the final stages of preparing the participant report and will be distributing that to participants in the near future.

IE Discovery Survey: Increase in Govt EDD

IE Discovery has released  2008 Benchmarking Study of Electronic Discovery Practices for Government Agencies, which surveyed legal and IT professionals at government agencies about their perception of e-discovery preparedness within their agencies.

The survey reports an increase of 8% in the amount of time the participants spent dealing with EDD issues. Full release here.

AW: 75% of Law Depts Face '09 Budget Cuts

Altman Weil has released a new Survey on Law Dept Cost Control that shows that 76% of responding GCS say their law depts face budget cuts averaging 11.5% for '09. And 15.6% say budgets will increase -- but by a smaller percentage than in prior years.

More than 80% of respondents cited outside counsel costs, and the unpredictable nature of legal spending. Third place, cited by 40% -- finanical exposure from litigation or potential litigation.

The survey was conducted in November and polled 1,292 GCs.

Kroll ESI Survey

Kroll Ontrack Inc. has released its second annual ESI Trends Report, which tracks developments in processing of electronically stored information. This year’s poll included 203 companies in the United States and 200 in the United Kingdom.
Kroll found that 70% of U.S. and 53% of U.K companies now have ESI protocols in place, yet one in four organizations (28% in the U.S., 23% in the U.K.) complain that increasing volume of data is a major challenge. Many respondents say a lack of time and resources is distracting them from implementing ESI programs: 31% (U.S) and 27% (U.K).
The survey also reports a 25% shift from 2007 in the allocation of ESI responsibility to IT department for policy development and enforcement.

Huron Consulting Group Legal Holds Survey

Huron Consulting Group partnered with the Compliance, Governance and Oversight Counsel  to survey Global 1000 companies with annual revenue from $5 billion to more than $150 billion, in a variety of industry sectors, about legal holds. About 50 companies participated.
Key findings of the included an increase in issuance of holds — 80% of respondents said their companies issue legal holds for every matter, the other 20% say they use risk and case analysis to determine holds.

Fulbright & Jaworski Lit Trends Survey

For Fulbright & Jaworski's 2008 Litigation Trends Survey, conducted by Greenwood Associates, respondents included 348 corporate counsel in the U.S. and U.K., spanning 10 industry groups. The survey reports decreased litigation, including a 10% decline in plaintiff filings, and a 5% decline in regulatory proceedings. However, 32% of respondents noted a jump in multi-plaintiff suits stemming from wage-and-hour claims by employees, and others cited a rise in privacy lawsuits.
The volume of litigation remains large, however, and 79% of respondents reported fielding at least one new lawsuit in the last year, with 27% facing more than 20, and 18% more than 50 new actions. 

The Socha-Gelbmann Electronic Discovery Survey: Time for a Change

The time has come for us, the creators of the Socha-Gelbmann Electronic Discovery Survey provider rankings, to kill our rankings. We intend to replace those rankings with an improved way to assess providers and their capabilities.

Why are we killing the rankings? We believe our survey rankings have reached the point where they no longer serve their original purpose. When they are announced, we are told, they can affect the share prices of publically held companies. They can have an impact on the ability of providers to obtain financing. They can be a key factor, sometimes the most important factor, in determining which provider is selected to take on a project or deliver a software program.

No set of generalized rankings should have this type of influence. Not ours. Not anyone’s.

2008 Socha-Gelbmann EDD Survey Sneak Preview

Update: The story's now live on the LTN website.

The anxiously awaited 2008 Socha-Gelbmann EDD Survey executive summary will be published in the August issue of Law Technology News, but here is a sneak preview to whet your appetite.

This year we gathered information from or about 107 EDD services and software providers, and from 29 law firms and 19 corporations.  Using more than 350 qualitative and quantitative factors, we ranked those providers - top overall EDD services providers, top overall EDD software providers, and top EDD providers in various categories.  Although one can, and perhaps should, take issue with the specific rankings, we feel that the providers listed below represent the best of the best, an elite cadre singled out from a field of well over 600 organizations that offer some form of EDD services or software.

What's driving GCs to the EDD party?

From a survey conducted by Ari Kaplan Advisors, sponsored by Fios, Inc., of 28 legal professionals from Fortune 500 corporations, apparently it's not all about the amendments to the Federal Rules of Civil Procedure regarding electronically storied information. Kaplan engaged corporate counsel responsible for litigation in a conversation to spark a dialogue on legal holds, data management, vendor selection, the amendments to the FRCP, litigation readiness, technology and e-discovery cost drivers and gleans some best practices in reducing EDD costs.

Outbound E-mail = Inbound Issues

A story on Law.com entitled "Outbound E-Mails Spell Inbound Legal Trouble for Corporations" points to a recent study from Proofpoint.com on how corporations are concerned about the content of their outbound e-mail.

The study received responses from a total of 424 "IT decision makers" including CIOs and IT directors from the US, UK, Germany, France and Australia.

Xerox Conducts E-Discovery Survey

Xerox Litigation Services has published a survey that evaluates the e-discovery preparedness of the legal community. Of 200 legal professionals surveyed, 29 percent judged themselves to be “extremely prepared” to deal with e-discovery issues. The press release with survey findings can be accessed here. 

Update: The survey results can be downloaded here.

Download xerox_survey_topline_results.pdf

Surety Releases E-Mail Security Survey Results

IT security software provider Surety has released the results of the 2008 Email Security and Authentication Survey. The survey -- of 800+ IT security, email security and compliance professionals -- revealed significant concerns about email content security and the preservation of emails for litigation.  Results include:

• More than 65 percent of respondents lack confidence that their organization's e-mail records would be  admitted as evidence in legal, regulatory or patent disputes; 
• More than 80 percent of respondents are concerned about their ability to authenticate e-mail records  and attachments; and 
• More than 50 percent of respondents remain unclear on new regulations and legal expectations related to e-mail authentication, including e-discovery.

Full survey results and press release here. 

Survey Sez: Trouble (& Opportunity) Ahead

As mentioned below, during our visit with the Kroll Ontrack folks, they shared with us the results of their 2008 international survey of in-house counsel re: practices for managing ESI in lit and internal investigations.

The findings are very consistent with the warnings of EDD Update authors, especially Michael Arkfeld -- who has been hollering to lawyers that they really need to pay attention to all of this, or be prepared to pay a hefty price, literally and figuratively.

Key findings include:

* Only 25% of U.S. in-house counsel -- and 17% of U.K. in-house counsel -- say they are full current with ESI case law, developments and regs.
* About half of respondents in both countries have no ESI policy.

LexisNexis Polls ACC GCs re: FRCP Readiness

LexisNexis polled Association of Corporate Counsel attendees during the 2007 annual meeting in Oct., and found that 44 percent said they weren't prepared for the amendments to the Fed. Rules of Civ Pro -- but that they have made strides during 07. Press release: Download ACC-LNSurvey.doc