The number of law firms involved in cases requiring e-discovery rose in 2016, but many of those firms are failing to use advanced e-discovery technologies or even any e-discovery technology.
These are among the findings of the recently released 2016 Legal Technology Survey Report conducted by the American Bar Association’s Legal Technology Resource Center. The survey examines legal technology usage in a number of areas of law practice, including e-discovery.
Forty-five percent of firms report involvement this year in a case that required the processing or review of electronically stored information (ESI). That is an increase over the prior two years, when it was 41 percent, but a drop from 2013, when it was 49 percent.
The likelihood that a firm has been involved in e-discovery increases with its size. Less than a third of solos have had cases involving e-discovery, while 71 percent of firms of more than 100 attorneys have, according to the survey.
(The number of large firms that have been involved in e-discovery is probably much higher than the survey indicates. Note that some 30 percent of respondents in firms of 100 or more attorneys did not know whether their firms had been involved in e-discovery. Add that to the 71 percent who said they have and you are at 100 percent. In this day and age, it seems highly unlikely that any large firm would not have been involved in e-discovery.)
But when those who had been involved in e-discovery were asked their preference for an e-discovery review platform, 43 percent said they do not use an e-discovery review platform. Twenty-six percent said they prefer a “simple review solution” and “all-in-one solution” and 11 percent said they prefer a “sophisticated review solution.”
When asked what techniques they had used to review ESI, only 15.3 percent said they had used predictive coding. The most common answer was keyword searching (78.4 percent), followed by concept searching (30.6 percent).
Use of predictive coding correlates to firm size, the survey found. While only 4 percent of those at firms of 2-9 attorneys had used it, 35 percent of those at firms of 100 or more had.
The survey asked what factors would prompt a lawyer to use predictive coding. The answers they gave were:
- Minimum number of documents, 63.2%.
- Short timeframes/deadlines, 60.5%.
- Need to get facts of the case, 42.1%.
- Insisted upon by judge, 31.6%.
- Straightforward content types, 23.7%.
- Prompted by inside counsel, 23.7%.
- Proposed by opposing side, 23.7%.
- Defensibility is not an issue, 15.8%.
- Advice of outside counsel, 2.6%.
- Other, 7.9%.
The survey also asked lawyers how they used the output of predictive coding. Their answers:
- Document prioritization, 76.2%.
- Data culling, 69%.
- Review production from opposition, 54.8%.
- Check work of review team, 21.4%.
Those who have not used predictive coding were asked why. The most common reason they gave was that the size of cases did not warrant it (56.7 percent). Other reasons were:
- Cost, 26.9%.
- Unfamiliar, 15.5%.
- Concerns about the technology 14.9%.
- Other, 14.9%.
A set of questions asked about outsourcing of e-discovery processing or review. It found that 31.9 percent of firms outsource to computer forensics specialists, 31.7 percent outsource to litigation support bureaus or electronic discovery consultants, 12.2 percent outsource to lawyers within the U.S., and 1.5 percent outsource to lawyers outside the U.S.
About the Survey
The annual six-volume survey covers:
- Vol. I: Technology Basics & Security.
- Vol. II: Law Office Technology.
- Vol. III: Litigation Technology & E-Discovery.
- Vol. IV: Web and Communication Technology.
- Vol. V: Online Research.
- Vol. VI: Mobile Lawyers.