Use of Predictive Coding and the Cloud in E-Discovery Rose in 2012, Survey Says

Use of predictive coding and Internet-based electronic discovery tools rose in 2012, according to the recently published 2012 ABA Legal Technology Survey Report on litigation and courtroom technology.

Of lawyers whose firm had handled an e-discovery case, 44 percent said they had used Internet-based e-discovery tools, up from 31 percent in 2011. Thirty-five percent said they had used Internet-based litigation-support software, up from 24 percent in 2011. Of those same lawyers, 23 percent said they had used predictive coding to process or review e-discovery materials, up from 15 percent the prior year.

By comparison, lawyers’ use of desktop-based e-discovery tools rose only slightly, from 46 percent to 48 percent, and their use of desktop-based litigation support software held steady, at 46 percent.

Not surprisingly, the use of these types of e-discovery tools is far more common among lawyers in larger firms than among those in solo and small firms. Among lawyers whose firm has handled e-discovery matters, only 5 percent of solo lawyers and 6 percent of lawyers in firms of 2-9 lawyers say they’ve used predictive coding. By contrast, in firms of 500 or more lawyers, 43.5 percent report having used predictive coding.

A similar but less-dramatic gap exists when lawyers who have handled e-discovery matters were asked if they ever use Internet-based e-discovery tools. Among lawyers in firms of 500 or more, 67.3 percent say they’ve used these tools. Among lawyers in solo firms, 33.3 percent say they have.

In fact, solo and small-firm lawyers are far less likely than their larger-firm counterparts to have ever handled an e-discovery matter. When asked how often they had made an e-discovery request on behalf of a client, 64.2 percent of solo lawyers said never. At firms of 500 or more, only 31.3 percent answered never.

Along the same lines, lawyers were asked how often they had received e-discovery requests on behalf of clients. Of solo lawyers, 56.1 percent said never. At firms of 500 or more, 27.9 percent said never.

Another question asked whether the lawyer’s firm (as opposed to the lawyer directly) had ever been involved in a case that required the processing or review of e-discovery materials. Only 12.8 percent of solos and 34.3 percent of lawyers in firms of 2-9 lawyers answered yes. Of lawyers in firms of 500 or more, 71 percent said yes. Among all respondents in all sized firms, 43.8 percent said that their firms had been involved in an e-discovery matter.

On the topic of outsourcing, the survey asked lawyers whether they outsource e-discovery processing or review. The results show little change in outsourcing to e-discovery consultants and companies — 44 percent in 2012 compared to 45 percent in 2011. Likewise, the percentage of outsourcing to computer forensics specialists remained steady at 42 percent from 2011 to 2012.

However, the survey indicates that outsourcing to lawyers outside their own firm is on the rise. Outsourcing to lawyers within the United States rose from 16 percent in 2011 to 25 percent in 2012. Outsourcing to lawyers outside the United States rose from 3 percent in 2011 to 8 percent in 2012. Here again, the larger the firm, the more likely the lawyer is to outsource.

Something that surprised me in the survey is that there has been virtually no change over the past three years in the number of firms reporting that they have a distinct e-discovery initiative (such as a practice group). In 2012, 25 percent of respondents said their firms had such an initiative, down from 27 percent in 2011 and equal with 2010’s 25 percent. Also notable is that, among firms that have such an initiative, fewer of them report having a partner heading it up. Increasingly, the firm’s CIO is taking on primary responsibility for its e-discovery initiative.

The 2012 ABA Legal Technology Survey Report consists of six volumes, covering a range of topics from technology basics to mobile lawyering. The e-discovery results are contained in Volume III, which covers litigation and courtroom technology. Volume III is available for purchase from the ABA for $350 (or $300 for ABA members). An abbreviated trend report on litigation and courtroom technology can be purchased for $55 (or $45 for ABA members).


About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.