2014 Ediscovery Trends: Survey Results

trends-survey

With about six weeks remaining in the year, let the “2014 reflections” bombardment begin! You know what I am talking about — the close of the calendar year prompts oodles of nostalgic news stories recalling the biggest events of the year. Okay, I will admit it…about this time last year, I willingly clicked on Google’s Top Ten Trending Stories of 2013 and BuzzFeed’s The 27 Movies We Loved in 2013. There is just something about this time of year that makes us want to ponder the past.

So, wholeheartedly jumping in to the “year in review” spirit, Kroll Ontrack surveyed over 550 law firm and corporate ediscovery professionals to gauge the biggest trends and impacts in ediscovery in 2014. This was a great year for the world of ediscovery, and now is the perfect time to share some of the interesting 2014 trends with all of you. To see the full set of ediscovery trends, please download the “2014 Ediscovery Trends: Industry Survey Results” guide.

Security is a Foremost Concern

The trends show that nearly two-thirds of respondents considered security in some way. While only 8% hired an outside security consultant, 31.5% at least held internal discussions to reaffirm security protocol, and a healthy 22.9% made changes to security infrastructure. However, 37.6% of survey respondents indicated that security had no impact on ediscovery practices in 2014. Big Data has brought big security risks in litigation, and security is likely to become an even bigger issue in the future.

Predictive Coding on the Rise

Big Data is expanding, but technology has allowed tech-savvy litigants to keep pace. In 2014, law firms and corporations emphatically embraced predictive coding, with 40% of law firms and corporations reporting participation in at least one matter that involved the technology. The benefits of predictive coding are clear: it cuts costs and increases efficiency. While the majority of law firms and corporations combined still seem to have avoided predictive coding in 2014, we can expect this number to shrink as more and more litigants turn to reliable predictive coding technology to curb the ever-increasing costs of the ediscovery process.

New Forms of ESI: Social Media, BYOD and IoT

The growth and proliferation of social media and personal devices spawned new collection sources for ediscovery matters in 2014. In fact, over 50 percent of law firms and corporations reported that they were involved in a matter that used social media data. Similarly, 58 percent of survey respondents reported that they had at least one ediscovery matter involving personal devices (BYOD), and 26 percent said BYOD devices played a role in three or more ediscovery matters in 2014.

Further, Internet of Things (IoT) data is likely to be a growing source of new litigation data within the next decade, with 29 percent of respondents preparing for its impact on ediscovery. Thirty-eight percent reported they have made no preparations for IoT and 33 percent have never heard of the IoT.

Looking Ahead

What will 2015 hold for ediscovery? Better visibility into cybersecurity practices? Greater focus on information governance practices? Increased adoption of predictive coding? When asked what ediscovery topic will take center stage in 2015, 26 percent of respondents cited information governance practices, with an equal percentage (26%) noting improved use of analytics to deal with growing demands to preserve and process data.

Download the “2014 Ediscovery Trends: Industry Survey Results” guide today to get a head start on 2015. (And, of course, don’t miss all the other exciting news stories summarizing the hottest trends in fashion, entertainment and more in 2014…you know you can’t wait!)

November 2014 Ediscovery Case Summaries

ediscovery case studies

Court Denies Exclusive Use of TAR Privilege Review, Leaves Option on Table for Later Use
Good v. American Water Works, 2014 WL 5486827 (S.D. W. Vir. Oct. 29, 2014).

Judge Gives Rule 34 Lesson, Orders Plaintiff to Organize Production
Venture Corp. v. Barrett, 2014 WL 5305575 (N.D. Cal. Oct. 16, 2014).

Court Affirms Costs against Plaintiffs Following Contentious Discovery
Kuznyetsov v. West Penn Allegheny Health Sys., 2014 WL 5393182 (W.D. Penn. Oct. 23, 2014).

Defendant Ordered to Keep Discovery Promises despite Plaintiff’s Inability to do the Same
Finjan, Inc. v. Blue Coast Sys., 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014).

Defendant Entitled to New Trial After Trial Court Erroneously Admitted “Russian Equivalent of Facebook” into Evidence
United States v. Vayner, 2014 WL 4942227 (2d Cir. Oct. 3, 2014).

5 Questions You Should Ask about Big Data Security and Ediscovery

security

In the era of big data, vetting and asking the right security questions can help your organization save money and have peace of mind when it comes to ediscovery. Below is a general overview of some of the most important questions you should be discussing with your outside law firms and ediscovery service providers. Developing a thorough security RFI created in tandem with your IT/IS department to truly vet these organizations is highly recommended.

  1. How is data stored, secured and monitored? Knowing how and where your data will be stored once you transmit it for ediscovery processing and hosting are some of the most important questions you can ask.
  • Storage: Understand whether data is stored onsite or in the cloud. Each method poses its own benefits and risks, and grasping which method best meshes with your organization’s needs is paramount.
  • Security: Inquire about technical controls to protect security, from encryption methods to firewalls and intrusion detection systems.
  • Monitoring: Learn about the service operations staff that keeps its finger on the heartbeat of the data center.
  1. What physical protection measures are in place? Look for some of the following attributes to ensure that your law firm or vendor’s data center is state-of-the-art.
  • Cooling: Make sure the data center has equipment to keep hardware cool and humidity levels in check.
  • Power: Ensure that there is a continuous flow of power to the data center, with back-up generators available.
  • Network: Request information about the network connectivity, specifically asking about redundancy.
  • Fire Suppression: Understand fire suppression procedures and inquire about waterless fire suppression systems.
  • Access Controls: Ask about physical access controls into the data center, such as biometric hand readers.
  1. Is there enough secure storage available and is the operation scalable to accommodate unexpected expansion? If your law firm or ediscovery provider does not have the capacity to securely store the information, some of the data may be compromised. It is easier—and far less costly—to find another law firm or a secure vendor to host your data than it will be to clean up a disastrous data security breach posed by sticking with a firm or provider that bit off more than it could chew.
  1. Who will have access to the data, and have they completed security training? The fewer people that have access to the information, the better. Make sure that your corporation’s confidential information is stored on a “need to know” basis, and it should be a red flag if that data is accessible to every employee at the law firm or ediscovery provider.
  1. If data loss or breach occurs, what type of plan is in place? No one wants to think about a data breach or loss; however, your organization needs to be prepared in the event of a data disaster. Ask about breach notification response plans and provisions for leveraging a data recovery expert in the event of a loss.

With big data only getting bigger and breaches at an all-time high, it is prudent –and absolutely critical—to take every effort to vet your outside counsel and ediscovery provider’s data security policies, before it is too late.

Get started on understanding how to better protect your organization’s digital assets by watching Kroll Ontrack’s new video explaining its data security and operational processes.

#ACCAM14: Lawyers Dig-in to Education at ACC’s Annual Conference

ACC

NOLA, The Big Easy, the French Quarter. When you think of New Orleans, you think of jazz, Mardi Gras, beignets, beads and café au lait. The 3,000 lawyers that attended the Association of Corporate Counsel Annual Meeting this year experienced all that New Orleans has to offer – in fact, some of the most popular giveaways on the tradeshow floor were the Mardi Gras style beads, no flashing required!

While corporate counsel certainly got their taste of New Orleans, their raison d’être was the variety of educational programming offered by ACC. This year’s continuing legal education programs ranged from talks on analytics and big data to the “contract-a-thon,” an interactive hack-a-thon-like race for lawyers.

Participating in the festivities, Kroll Ontrack had a booth on the tradeshow floor, and rather than handing out beads to show attendees, ear bud headphones were our give-away item – and they were hot! Further, Kroll Ontrack proudly announced its new Legal Hold technology offering. As of October 29, Kroll Ontrack is offering Relativity Legal Hold, complete with Kroll Ontrack consulting services, to help law firms and corporations automate the legal hold process while ensuring accuracy and defensible legal hold management. This tool is particularly cost effective due to its flat fee, per matter pricing. Kroll Ontrack is excited to provide this technology and service to its clients in the coming year.

On Halloween morning, the ACC meeting came to a close. The booths were torn down, the vendors packed up, and many attendees left with souvenirs of New Orleans. Next year’s show may lack beignets and beads, but it will be a great 2015 ACC meeting in Boston. See you there!

The World Series of Ediscovery: Hit a Homerun with Ediscovery.com Pulse Benchmarks

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If you are a baseball fan, you know that the end of October is the culmination of a long season – especially if your team is fortunate enough to be one of the two teams battling it out for the World Series title. And, if you are a true baseball fanatic, you can probably spout statistics and metrics about all of your favorite players and teams. Numerical facts and data are the lifeblood of baseball.

Not unlike baseball, numerical stats and metrics are critical to navigating a successful ediscovery project. You need benchmarks about costs, data types and volumes, review rates and production sets to better plan and execute your ediscovery projects. About a year ago, Kroll Ontrack launched the ediscovery.com Pulse Benchmarks to assist you with this very goal. Kroll Ontrack’s Pulse Benchmarks present aggregated data trends from a six-year span (2008-2013) to identify important metrics, trends and changes in the world of ediscovery. Gathered from a fluid and ever-changing pool of information, Kroll Ontrack updates this data regularly. Most recently, metrics about 2013 ediscovery projects were added to the Pulse Benchmarks report.

Big Data Gets Bigger

The most recent Pulse Benchmarks reveal the average number of source gigabytes increased from 417 in 2012 to 479 in 2013. That’s a 16% increase in source data volumes. Despite the increase in the volume of ediscovery data, for the first time in five years, the percentage of email data actually decreased. In 2013, the average percentage of email processed dropped from 66 percent in 2012 to just 54 percent.

Working Smarter

The Pulse Benchmarks also revealed that the average number of custodians per ediscovery project plummeted from 65 in 2008 to 16 in 2013. At the same time, cutting-edge technologies, including predictive coding, have significantly reduced the need for document reviewers. The average number of reviewers per ediscovery project dropped by half since 2010, down to only 15 in 2013.

Out with the Old, in with the New

The majority of data transmitted for ediscovery processing now comes via Electronic File Transfer (also known as FTP), according to the newest Pulse Benchmark research. The use of hard drives, CDs/DVDs and backup tapes are at an all-time low since 2008. Further, the average number of produced pages has declined over the past five years, but the average number of reviewed pages has been relatively consistent.

Don’t miss the charts and graphs that correspond to each of the Pulse Benchmarks discussed above. And of course, let us know in the comments what you think about the trends outlined by the new ediscovery.com Pulse Benchmarks.

October 2014 Ediscovery Case Summaries

ediscovery case studies

Court Denies Motion for Proportionality, Suggests Other Methods to Save Time and Money
United States v. Univ. of Nebraska at Kearney, 2014 WL 4215381 (D. Neb. Aug. 25, 2014).

Defendants’ Failure to Impose Litigation Hold Leads to Sanctions
Vicente v. City of Prescott, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014).

Plaintiff Does Not Offer Proportional Production Remedy, Court Denies “Discovery on Discovery”
Freedman v. Weatherford Int’l, 2014 WL 4547039 (S.D. N.Y. Sept. 12, 2014).

Prevailing Party Awarded Taxable Costs from Production to Opposing Party
Apple Inc. v. Samsung, 2014 WL 4745933 (N.D. Cal. Sept. 19, 2014).

Defendant’s Gross Negligence Leads to Adverse Inference Instruction
Riley v. Marriott Int’l, 2014 WL 4794657 (W.D. N.Y. Sept. 25, 2014).

The Decade of Discovery: Coming Soon to a City Near You

decade of discovery

Traversing the infamous Hollywood Walk of Fame elicits visions of glitz and glamour, a street afire with opening nights, leading ladies and leading men, iconic directors and prolific producers, and films that place marked key moments in our lives. I, myself, endured the 80’s in Hollywood as a session musician and experienced firsthand the excitement of Hollywood and certainly have my share of stories to tell (or not to tell). In my wildest of dreams, I never would have imagined ediscovery coming to the big screen.

2014’s Best Ediscovery Movie

So, you can imagine my delight earlier this year when I heard the news that ediscovery-guru-turned-filmmaker, Joe Looby, directed a documentary about the growth and evolution of the ediscovery industry. Federal judges, computer scientists and ediscovery icons on a journey to search and discover White House emails. Civil justice issues on the very edge of the electronic frontier. Technology’s critical role in helping the legal system, and in doing so advancing our freedoms. George Clooney, Jennifer Lawrence, Angelina Jolie and Ben Affleck may not be starring in this film, but The Decade of Discovery is on the top of my “must see” list for fall 2014 movies.  Well done Mr. Looby!  Click here for a sneak peak to the trailer.

Don’t Miss Your Chance to See It

Get ready movie fans. The Decade of Discovery is coming to a theatre near you! Beginning next week, Bloomberg BNA will be hosting a new event series, featuring Joe Looby’s ediscovery movie. The movie screenings will take place in noteworthy theater venues – preceded by a happy hour and followed by a panel discussion featuring distinguished guests. Kroll Ontrack is excited to participate as one of the sponsors for this multi-city, global event – Prague, Chicago, Washington DC, Houston, San Francisco, and New York. Limited seats are available, so I encourage you to register soon.

As they say in Hollywood, “I’ll see you at the (ediscovery) Movies!”

Part III – FRCP Amendments: The Long and Winding Road

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Where We Are Now

On September 16, 2014, the Judicial Conference officially approved the proposed amendments to the Federal Rules of Civil Procedure. The rules are now pending before the Supreme Court, and provided they are adopted, will be submitted to Congress by May 1, 2015. We are, finally, in the home stretch of rules being adopted – and it is looking more and more likely that the amended Rules will go in to effect December 1, 2015.

The Changes Being Made

As I blogged previously about the FRCP Amendments, there are a number of changes which directly impact ediscovery. The new Rule 1 stresses the cooperation of adverse parties in discovery – while the new Rule 26 ensures that that discovery is proportional to the case. Meanwhile, the new Rule 37(e) allows for court sanctions when ESI is not preserved.

Rule 1 ensures that both courts and parties are now explicitly responsible for just, speedy and inexpensive litigation. This means there is no room for hiding the ball or burying your opponent in documents.

The courts continue to emphasize proportionality – and Rule 26 is the embodiment of this trend. Rule 26(b)(2)(1) now lists specific proportionality factors, including:

  • The importance of the issues at stake
  • The amount in controversy
  • Access to relevant information
  • Resources
  • The importance of discovery in resolving the conflict
  • Burden versus benefit

All of these factors encourage opposing counsel to be reasonable, proportional, and willing to cooperate.

Lastly, the changes to Rule 37(e) now contain two sections:

  • The first section allows a court to respond when one party loses ESI and consequently prejudices the other party. Under the new rule, the court can take reasonable action to cure the prejudice – even if the loss of ESI was not the opponent’s fault.
  • The second section deals directly with the intentional loss of ESI – even when there is no prejudice to the opposing party, the court may assume the ESI was unfavorable or go as far as entering default judgment, among other remedies.

Want to know more? Check out Tom Allman’s paper “The Civil Rules Package As Approved By the Judicial Conference” which explores each and every amendment in depth!

September 2014 Ediscovery Case Summaries

ediscovery case studies

Shoddy Mobile Device Use Policy and Failure to Institute Litigation Hold Leads to Default Judgment and Hefty Sanctions
Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 U.S. Dist. LEXIS 114406 (D. Nev. Aug. 18, 2014).

Court Denies Forensic Imaging After Parties Do Not Agree to Production at Meet-and-Confer
Boston Scientific Corp. v. Lee, No. 2041 U.S. Dist. LEXIS 107584 (N.D. Cal. Aug. 4, 2014).

Parties’ Joint Stipulation Frustrates Defendants and Allows Plaintiffs to Not Produce Native Files
Melian Labs, Inc. v. Triology LLC, No. 13-cv-04791-SBA, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal. Sept. 4, 2014).

Court Allows Use of Predictive Coding, but Says It Shouldn’t Have To
Dynamo Holdings v. Comm’r, Nos. 2685-11, 8393-12, 2014 U.S. Tax Ct. LEXIS 40 (U.S. Tax Sept. 17, 2014).

Judge Issues Sua Sponte Order Chastising Modern Ediscovery Practices
Sec. Nat’l Bank of Sioux City, Iowa v. Abbot Laboratories, No. C 11-4017-MWB, 2014 WL 3704277 (N.D. Iowa July 28, 2014).

Why Even the Most Cutthroat Lawyer Should Want to Cooperate

cooperate

Litigants are rarely genuinely interested in cooperation during litigation. Litigation is, after all, an adversarial proceeding where one side hopes to win while the other side loses. In some instances, it seems like the competitive spirit overshadows any collaboration between litigants, their attorneys and their opponents.

Despite this, lawyers are doing their clients a disservice when they fail to endorse a collaborative attitude with regard to ediscovery. Following the Sedona Conference® Cooperation Proclamation, judges and courts are stressing the importance of collaboration throughout the ediscovery process. For example, see the following excerpts from 2014 judicial opinions encouraging cooperation and collaboration in ediscovery:

  • “[T]he time to tap flexibility and creativity is during meet and confer, not after.” Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014).
  • To accommodate the plaintiff’s demand for the full forensic output of both personal and professional laptops would “encourage litigants to demand the moon thinking they can always fall back to something reasonable. They should be reasonable from the start.” Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014).
  • The court’s order demanding plaintiffs respond to interrogatories about ediscovery methods was “based, at least in part, on…the fact that defendants were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.” Ruiz-Bueno III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013).
  • “If the parties had worked with their ediscovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol.” Progressive Casualty Insurance v. Delaney,No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014).

Interested in hearing a more? Check out Kroll Ontrack’s latest webinar recording, Five Good Reasons Why Even the Most Cutthroat Lawyers Should Want to Cooperate. Learn from two experienced Kroll Ontrack ediscovery experts, Cathleen Peterson and Adam Strayer as they discuss the many benefits of cooperation during the ediscovery process.

 
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