The eDiscovery Paradigm Shift

Tuesday, June 26, 2012

The Best Place to Perform Technology Assisted Review (TAR)

The resulsts of eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?" are in and they reveal that 43% of the respondents are outsourcing their Technology Assisted Review (TAR) to third party document review providers. These results seem to be somewhat contradictory to the prime objective and overall value proposition of the Legal Services Outsourcing (LSO) or Legal Process Outsourcing (LPO) vendors to provide less expensive manpower for labor intensive tasks such as document review.

However, according to a report on the Top Ten Trends in Legal Outsourcing for 2012 by Fronterion LLC, legal technology platforms (such as TAR) will be increasingly bundled together with traditional LPO offerings, combing two of the most important trends shaping the legal profession today. This means using software systems as well as low cost human labor to provide cheaper and more efficient legal services.

This trend seems to actually have been evolving for years as legacy LPO players have long been utilizing software tools and techniques during the document review processes including: document clustering, email thread management and keyword and concept search to cull and organize the documents in order to increase the speed and reduce the overall cost of review. Adding predictive coding to mix as a way to reduce the cost even further seems like a logical progression in the evolution of the LPO as they strive to maintain their margins.

The percentage of the respondents that chose something other than an LSO for where they send their Technology Assisted Review (TAR) also provided some interesting results:

Outside Counsel (14%)
Internal as part of Document Review Software (14%)
Internal as separate Technology Assisted Review (TAR) Software (29%)

The fact that 14% of the respondants chose Outside Counsel for where they send their Technology Assisted Review (TAR) indicates that although the eDiscovery market is going through a paradigm shift with corporate legal departments bringing eDiscovery services in-house, there are still some legal departments relying on their outside counsel for eDiscovery services. An interesting question for a future eDSG poll would be whether or not legal departments send their TAR to outside counsel because their outside counsel is proficient at TAR or because they send all of their eDiscovery work to outside counsel. It would also be telling to investigate whether or not these outside counsel are performing the TAR services internally or sub-contracting them to an LPO or LSO.

The results of the eDSG 2012 Survey of the General Counsel from the Global 250 indicated that 86% of the respondants send their document review to either outside counsel or an LPO. However, the survey also revealed that 75% of the respondants were frustrated that neither outside counsel nor legacy LPOs were providing adequate support for eDiscovery. This survey also revealed that 80% of general counsel from the global 250 were frustrated with having to deal with software vendors. This statistic leads into the last two facts from the eDSG weekly poll on where respondents are sending TAR. The poll reveals that 43% are performing TAR internally which indicates that they are having to "deal" with software vendors. The eDSG weekly poll is open to anyone that wants to vote and therefore the respondants are not necessarily general counsel from the global 250. In fact, I would venture to say that very few is any of the respondants to this week's poll were general counsel. However, it is still significant and shows a trend that 43% of the respondants indicated that they are performing TAR internally.

The fact that 14% of the respondents chose Internal as part of Document Review Software for where they send their Technology Assisted Review (TAR) indicates that some of the document review vendors have successfully integrated TAR into their review platforms.

However, the fact that 29% of the respondants chose Internal as separate Technology Assisted Review (TAR) Software for where they send their Technology Assisted Review (TAR) indicates that eDiscovery users are not yet comfortable with TAR and may not be ready to use it as part of their stand document review process. However, this statistic is significant enough to indicate that eDiscovery users understand the value of TAR and are therefore using in those situations where it satisfies the technical and legal requirements.

The resulsts of eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?" reveals that users within the eDiscovery market is still trying to figure out when, where an how to best utilize Technology Assisted Review (TAR). Complicated by the ongoing paradigm shift of responsibility for eDiscovery services moving to the legal deparments and exaserbated by the evolution of both LPOs and outside counsel trying to refine their business models, TAR users should take the time to understand their internal requirements and then investigate the best approach, partners and place to perform TAR. It may not be as straight forward to they think.

Click Here to view the results of the eDiscovery Solutions Group (eDSG) Weekly Survey on "Where is your Technology Assisted Review (TAR) done?".

Labels: Document Review, eDiscovery, General Counsel, global 250, Legal, Litigation, Litigation Software, Predictive Coding, TAR, Technology Assisted Review

Thursday, June 7, 2012

2012 Study of Global 250 General Counsel on eDiscovery

In its ongoing mission to evaluate and report on the current status and thoughts of the stakeholders from the eDiscovery, Information Governance and Cloud Computing market, eDiscovery Solutions Group (eDSG), conducted a blind survey of the General Counsel from the Global 250 on various aspects of eDiscovery.

We sent out the survey on February 6, 2012 and closed submission on May 31, 2012. During that time, we received 127 responses for a 51% participation rate. Please note that we believe that many of the surveys were filled out and submitted by Associate General Counsel and possibly other staff members.

For a more detailed view of the results, please go to: http://www.ediscoverysolutionsgroup.com/2012GeneralCounselSurveyoneDiscovery.html

Following is an overview of the results of this survey:

Lawsuits per Year

In order to gauge the potential requirement to engage in eDiscovery, eDSG asked how many lawsuits the enterprise was a party to in the last 12 months that required eDiscovery processing such as collections, ECA and Document Review.

Less than 10 = 28%
11 to 25 = 59%
More than 25 = 13%

eDiscovery Collections

eDSG asked if eDiscovery collections were done internally, by a third party forensics group or by outside counsel.

Outside Counsel = 51%
Third Party Forensics Group = 35%
Internal = 13%

I wasn't surprised that 86% of the respondents indicated that they outsourced collections to either a third party forensics group or outside counsel. However, over the next 24 months as eDiscovery moves away from service providers and outside counsel to the enterprise, I predict that internal collection will increase significantly.

Early Case Assessment (ECA)

eDSG asked if Early Case Assessment (ECA) was done internally, by a third party Legal Process Outsourcing (LPO) group or by outside counsel.

Outside Counsel = 51%
LPO = 29%
Internal = 20%

I was surprised that 51% of the respondents indicated the Early Case Assessment (ECA) was done by outside counsel. It is possible that there was some confusion with the term LPO, even though I provided an explanation that LPO included litigation service providers. Over the next 24 months as eDiscovery moves away from LPOs and outside counsel to the enterprise, I predict that internal ECA will increase significantly.

Document Review

eDSG asked if Document Review was done internally, by a third party Legal Process Outsourcing (LPO) group or by outside counsel.

Outside Counsel = 43%
LPO = 43%
Internal = 13%

Top Concerns Over the Next 12 Months

eDSG asked the respondents to indicate the top concerns were over the next 12 months. Please note that respondents were able to check more than one top concern.

Overwhelmed with ESI = 51%
Managing the Cost of eDiscovery = 100%
Understanding the Impact of Social Media = 75%
Understanding and Leveraging New Technology = 59%
Education and Training of Staff = 79%
Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 63%
Collaboration between internal stakeholders = 91%

This question revealed the most significant results. 100% of the respondents indicated that they were concerned about managing the cost of eDiscovery. 91% indicated that they were concerned about collaboration between internal stakeholders. 79% were concerned about education and training of staff and 75% were concerned about understanding the impact of social media. 51% were overwhelmed with ESI.

Top Frustrations Over the Past 12 Months

eDSG asked the respondents to indicate the top frustrations over the past 12 months. Please note that respondents were able to check more than one frustration.

Cost of eDiscovery not declining as rapidly as expected = 95%
Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 75%
Dealing with eDiscovery Software Vendors = 80%
Rapidly Changing Technology = 81%
Increase in the Amount of ESI = 90%
Legacy LPOs Not Providing Adequate Support for eDiscovery Requirements = 75%
Lack of Understanding of Internal eDiscovery Requirements = 65%

Top Pet Peeves Over the Past 12 Months

eDSG asked the respondents to indicate the top pet peeves over the past 12 months. Please note that respondents were able to check more than one pet peeve.

Annoying eDiscovery Vendor sales people = 65%
Outside Counsel's refusal to take responsibility on eDiscovery = 50%
Lack of Support from Information Technology (IT) group = 50%
Anyone that states that litigation in now all about technology = 75%
Outside Counsel and LPOs Knowingly Low Balling Cost Estimates = 85%
LPOs dropping the ball on eDiscovery Projects = 75%
eDiscovery Cost Overruns = 75%
Small Suits that Cost More to Process than Settle = 50%

Top pet peeves is my favorite category as it provides some very interesting insight into what is really going on within these organizations. And, it provides great feedback for LPOs and outside counsel.

85% of the respondents indicated that a top pet peeve was outside counsel and LPOs knowingly "low balling" cost estimates. 75% indicated LPOs dropping the ball on eDiscovery projects, eDiscovery cost overruns and anyone that states litigation is now all about technology. 65% indicated annoying eDiscovery vendor sales people.

Next week I will post the results of Global 250 General Counsel plans for eDiscovery over the next 12 months.

For a more detailed view of the results, please go to: http://www.ediscoverysolutionsgroup.com/2012GeneralCounselSurveyoneDiscovery.html

Labels: Collections, Document Review, Early Case Assessment, eDiscovery, LPO, Outside Counsel

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The eDiscovery Paradigm Shift

Tuesday, June 26, 2012

The Best Place to Perform Technology Assisted Review (TAR)

Thursday, June 7, 2012

2012 Study of Global 250 General Counsel on eDiscovery

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