Companies Making Greater Use of TAR and the Cloud, Litigation Survey Finds

For the ninth successive year, the law firm Fulbright & Jaworski has just published its Annual Litigation Trends Survey of corporate counsel in the United States, the United Kingdom and other countries. As in prior years, the survey provides a revealing overview of corporate litigation trends in a variety of areas, including e-discovery.

With regard to one of the hottest topics in e-discovery, technology-assisted review, the survey found that 35% of companies use TAR for at least some of their matters. The greatest use of TAR is among U.S. companies, where 40% say they use it. By comparison, only 23% of U.K. companies use TAR.

As you might expect, the use of TAR rises with the size of the company, the survey found. Of larger companies, 43% use it, compared to 32% of mid-sized companies and 23% of smaller companies.

It would appear from the survey that TAR is sticky. Of those companies that use TAR, 21% say they use it in 100% of their matters and 51% say they use it for at least half of their matters.

Cloud Computing is Up

Corporate counsel report an increase in the use of cloud computing, up from 28% a year ago to 36% this year. The rate of increase is consistent across companies of all sizes, but cloud computing is most common among companies in certain industries, particularly technology/communications (68%), financial services (52%), retail/wholesale (41%) and manufacturing (38%).

Among the companies that use cloud computing, 32% have had to preserve or collect data from the cloud in connection with actual or threatened disputes or investigations, the survey found. That is fewer companies than in the 2011 survey, when 40% had preserved or collected data from the cloud. Collection from the cloud actually rose in the U.S. this year, but the overall percentage dropped due to declines in the U.K. and other countries.

Other E-Discovery Findings

Another finding that is reflective of the times is that significantly more companies have had to preserve or collect data from an employee mobile device this year. Overall, those answering yes to this question rose from 32% in 2011 to 41% this year. In just the U.S., the “yes” responses rose from 30% in 2011 to 41% this year.

A large majority of companies, 69%, rely on self-preservation to fulfill their obligations in legal disputes or investigations, the survey found. The larger the company, the more likely it is to use self-preservation. Also, U.S. companies are more likely to use self-preservation than are those in the U.K. or elsewhere.

Survey Demographics

The survey was conducted for Fulbright in 2012 by Greenwood Associates, a business research firm in Houston. It reflects information collected from 392 in-house attorneys, of whom 82% were general counsel and 14% were heads of litigation. Seventy percent of all respondents were located in the U.S., 26% in the U.K. and 4% in other countries.

The companies represented in the survey were split roughly 50/50 between public and private. They were of all sizes: 49% were larger companies (with gross revenues of $1 billion or more), 31% were mid-sized (gross revenues of $100 million to $999 million), and 20% were smaller (gross revenues of less than $100 million).

The full survey results can be downloaded from Fulbright & Jaworski.


About Bob Ambrogi

A lawyer and veteran legal journalist, Bob advises Catalyst on strategic communications and marketing matters. He is also a practicing lawyer in Massachusetts and is the former editor-in-chief of The National Law Journal, Lawyers USA and Massachusetts Lawyers Weekly. A fellow of the College of Law Practice Management, he also writes the blog LawSites.

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