SURVEY SAYS Part 2 (or, If You Can’t Run with the Big Dogs, Stay on the Porch)

Here’s my own stab at a couple of surveys: if I’m going to make comments about other surveys I figure I should at least try to do one or two myself and give everyone else the opportunity to nail me for what I did wrong. This was originally posted on the web site of Florida ED consultants The Cipher Group back in March.

“I recently conducted two separate surveys of end users regarding their experience with electronic discovery. The first was with the Chicago Law Bulletin Publishing Company that was sent out to Illinois attorneys. The second, sponsored by IPRO Tech, was with ILTA and went out to their members, who are primarily large firm IT staff. Both surveys asked approximately 20 questions about the respondents’ level of exposure to eDiscovery matters, experiences with electronic discovery vendors and products. Both also contained a specific question which asked for their thoughts on the most important issues facing them in this ever-increasing area of practice.”

1. Education

“In both surveys, ‘education’ ranked in the top 3 of most important issues. The biggest surprise in the Illinois survey were the responses to 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 latter figure seems somewhat astonishing given the high degree of coverage and the flurry of CLE activity surrounding changes that went into effect in December 2006. In the ILTA survey, 90% of respondents were familiar with the ED-specific changes to the FRCP, but 40% did not know if their state had implemented such a rule change locally.”

2. Vendor Performance

“The findings from the ILTA survey seem to suggest that ED vendors still have a long way to go in satisfying clients on the service part of their deliverable. More than a third of the respondents said they are unhappy with the quality of the performance from those vendors The fact that price as a significant factor in determining project satisfaction had a nearly identical proportion of responses to timeliness and slightly behind project management tells me that reliability and efficiency are the areas where vendors need to concentrate. I think it is most important that a vendor not try and achieve these goals through mere economies of scale, but through development of a deep technical and litigation-savvy knowledge base within its personnel. In the Illinois survey, the attorneys who answered with respect to the litigation support software they purchased from vendors confirmed my own experiences in working with various firms around the country that 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 and of those who did (25% of the respondents admitted that they didn’t actually use it themselves, but left that task to a staff member), 42% found their choice ‘satisfactory’ or ‘ok.’ An equal number of respondents (13%) were either very happy or very dissatisfied.”

3. Workflow

“With the advent of electronic documents and new document types such as multi-page TIFFs, PDFs, emails, excel spreadsheets and audio files, the page-centric approach of Bates numbered single page TIFFs has faltered. The paradigm that worked for 100 boxes of documents is simply too cumbersome and prohibitively expensive for cases that routinely handle hundreds of gigabytes of electronic information. According to John Turner, Senior Vice President and Chief Technology Officer of Anacomp, Inc. in San Diego, applications ‘…that retain the paradigm of the page and not the document will not be able to adequately support the new age of litigation. A modern platform must be able to review native documents that are not just paper equivalents, but must directly enable review of any file that is in common use in business today.’ Attorneys and their clients who focus on the new paradigm will save time and money by using this process for docu-centric native file review. I believe that we will shortly see technical solutions that will allow a Bates-like substitute to be employed within the native file production paradigm.

So what general observations can we take away from these surveys? E-discovery 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 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.”

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