Electronic Discovery Survey of Illinois Attorneys Shows a Few Surprises

by Tom O’Connor

Overview

The Law Bulletin Publishing Company recently conducted a survey of Illinois attorneys regarding their experience with electronic discovery. 240 lawyers responded to the survey that asked 17 questions about their level of exposure to eDiscovery matters, experiences with electronic discovery vendors, and products. The final question asked for their thoughts on the most important issues facing them in this ever-increasing area of practice.

Who’s Who?

The respondents to the survey represented a good cross-section of practitioners, with 35% practicing in firms of between two and twenty attorneys, 25% in firms with over 100 attorneys and 22% being solo practitioners. The remainder was spread between firms of 20-50 (12%) and 50-100 (6%).

The respondents themselves were primarily partners (59%) with 20% being associates, 15% in-house counsel.

Perhaps the biggest surprise occurred almost immediately in the question which asked “Are you familiar with the Federal Rules changes regarding electronic discovery?” 70% answered “Yes” which means that 30% were not familiar with the rule changes. The figure seems almost astonishing given the high degree of coverage and the flurry of CLE activity surrounding changes that went into effect in December of 2006.

Sources of eDiscovery Trends

Not so surprising was the fact that 45% of the respondents said that their main source of information on electronic discovery was print media. Next closest was Web sites at 35% followed by e-mail feeds at 20% and conferences at 22%. Consultants received a 12% figure while the percentages who answered either “colleagues” or “case law” were even at 5% and specific CLE sessions were at 2%. What struck me about these figures was that traditional methods of gaining legal knowledge (print media, reading cases or statutes and discussing issues with other attorneys) were approximately 60% while newer types of electronic sources such as Websites and RSS feeds were approximately 40%, indicating that these non-traditional methods of electronic delivery of information directly to the desktop are a significant factor in how attorneys are educating themselves.

How Much Is That Case Worth?

When asked specifically about matters involving e-discovery, 68% answered that they had handled such a case. 30% of those had a matter valued over $5 million with the others ranging from $5 million to less than $100,000. 21% had handled multiple matters with case values ranging high and low, indicating that eDiscovery cases are not just restricted to high-dollar cases. The vast majority expected their eDiscovery caseload to either increase (58%) or remain stable (33%) in 2008.

Consultant or No Consultant

The question, “Have you ever hired an electronic discovery consultant or firm?” provided the biggest surprise of the survey for me. 69% of the respondents indicated that they had not hired an eDiscovery consultant or firm. Those who did hire such a company preferred Kroll (25%) Lexis-Nexis Applied Discovery (20%), Fios (18.5), FYI (18% ) and EED (15%) All other companies listed (KPMG, Encore, Stratify, Attenex and Navigant) came in at single digit percentages.

Upon examination, the breakdown is perhaps not so surprising. The respondents answering “yes” to the consultant question were the large firm attorneys with high value cases. The respondents answering “No” were predominately sole-practitioners and small firms. The fact that these are respondents performing a high percentage of their eDiscovery work in-house is a theory perhaps born out by the fact that the two most popular products listed as a response our question about products are Summation at 64% and Concordance at 47% . Both products are more easily used by smaller firms to perform their own eDiscovery processing, especially on email files. And in fact, after those two products, no other company had higher than a 10% response except for EnCase, which is typically used for forensic-level analysis of servers and workstations.

Software of Choice

Interestingly, the attorneys who answered about their experience with the software they used, confirmed my experiences working with various firms around the country: the vast majority of attorneys are either ambivalent towards, or unhappy with the software they are employing. In this case, 2/3 of the respondents declined to rate their software of choice at all but of those who did (and 25% of the respondents admitted that they didn’t actually use it themselves, but left that task to a staff member: not surprising in a survey with such a high number of partners responding), 42% found their choice “satisfactory” or “ok”. An equal number (13%) were either very happy or very dissatisfied.
The most common complaint? “Poor interface” at 9%. And the product most often mentioned by name as the best? Neither Summation nor Concordance. IPro was the stand-out, whose users were enthusiastic about IPro’s ease of use.

On the Web

Another surprise for me was the high number of respondents who had used a Web-based application to host their eDiscovery documents. Given the number of small firms and solos represented, I expected this number to be relatively low, yet 66% answered in the affirmative. The most often mentioned products here were iConnect (25%) and Lextranet (17%) with FYI (10%), CaseCentral (10%), Catalyst (8%) and CaseLogistix (5%) rounding out the leaders with Kroll, OnTrack, EED and Applied Discovery all getting one mention. 8% couldn’t tell and 5% were using a custom application. Most curious statistics in this category? 12% of the respondents said they DIDN’T KNOW what Web application they were using!

Most Important Issues Regarding eDiscovery

Not surprisingly, the one eDiscovery issue that the majority of respondents felt was most important was cost. But it was not a dominant response at only 20%. The remainder of the responses were very closely bunched with education on the eDiscovery issues at 12% followed by tactical usage (8%) and then project management, authentication and “I have no idea” all at 7%, the last clearly reinforcing the education answer. Smaller numbers, but nearly identical figures (at 3-5%), came in for communications with client, high volume of data, judicial education, metadata and compliance.

Conclusion

So what general trends can we take away from these results? Clearly, eDiscovery is cutting across all the legal demographics of firm size, case values and attorneys but a significant number of lawyers are still unfamiliar with the requirements and characteristics of electronic discovery. No single vendor is dominating the market in Illinois and national vendors are clearly splitting the business with local shops. Although well known products such as Summation and Concordance have a high market presence they are being pushed by the rise of Web based applications and, although cost conscious, attorneys are rating both vendors and products on a number of other factors besides price.

All of which means that the eDiscovery market is still growing and I look forward eagerly to seeing what this survey tells us a year from now.

About the Author: Tom O’Connor is the Director of the Legal Electronic Documents Institute. Tom is a nationally-known consultant, speaker and writer in the area of computerized litigation support systems. Tom’s 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, now in its fourth edition and The Lawyers Guide to Summation, published by the ABA.