Industry Trends

The ARMA Live! Conference & Expo for Records Management and Information Governance professionals is coming to San Antonio this Sunday for three days and CloudNine will be there.  If you plan to attend the show or are in the San Antonio area, come have drinks with me on Sunday – I’m buying!*

*Well, technically, my boss is buying, but we won’t quibble…

We’re having a “Drinks with Doug” outing on Sunday, September 25 from 4:30pm to 6:30pm at Guadalajara Grill, 301 South Alamo, San Antonio, TX 78205.  The address is easy to remember because we all remember the Alamo, right?  :o)

Anyway, it’s across the River Walk, just a short distance away from the conference in the Henry B. Gonzalez Convention Center.  Just ask for the “Drinks with Doug” gathering when you get there.

“Drinks with Doug” is a sporadic gathering of information technology, business, and eDiscovery professionals in various cities who casually meet and discuss all things information and technology over a few drinks with me.

If you’re attending ARMA and have an ARMA badge, that’s all you need!  Stop by and have a drink with us!

If you’re not attending ARMA, but will be in the San Antonio area on Sunday, you’re also welcome to attend.  However, you’ll need to email me at daustin@cloudnine.com and you will need to receive a confirmation response from me to be added “to the list”.  To improve your chances, please send the email from your work email address, not from a “gmail” or other personal account.

Hope to see you there!

So, what do you think?  Are you attending ARMA 2016?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

According to Norton Rose Fulbright’s Litigation Trends Annual Survey for 2016 released last week, eDiscovery is “increasingly painful and costly to manage, particularly considering the growth of cross-border discovery”.  Interestingly, however, more respondents are now using alternative fee arrangements (AFAs) and in a higher proportion of the litigation work they carry out, with a whopping 97% satisfied with the work conducted under an AFA.

Here are some other interesting statistics from the report:

RESPONDENT PROFILE

Here is a profile of the respondents in the survey.

• There were 606 total corporate counsel participants (way down from 803 a year ago), 79% of which were either General Counsel (47%), Deputy GC (21%) or Head of Litigation (11%).  44% of respondents were from the US, down from 52% a year ago.
• Over half (57%) of the companies surveyed, were billion dollar companies with $1 billion or more in gross revenue, with all but 11% having revenues of at least $100 million.
• The respondents were quite evenly distributed among industries, with Financial Institutions (24%), Technology and Innovation (22%) and Energy (17%) the top three industries participating.

LITIGATION TRENDS

The report provided some interesting findings with regard to the number and distribution of cases as well as corporate litigation budgets.

Litigation Case Counts and Distribution

• 47% of all respondents indicated that more than 5 lawsuits/proceedings were commenced against them last year, up from 42% last year.  As was the case in 2015, 13% of all respondents indicated that more than 50 lawsuits/proceedings were commenced against them last year.  Only 19% of respondents indicated that they had no disputes, down from 25% a year ago.
• Respondents were given a list of categories of pending litigation their companies faced over the past 12 months, and asked to select the top three. Contracts (40%) and Labor/Employment (39%) matters once again received the most selections from respondents, with Regulatory/Investigations a distant third at 19%.  Contracts (42%), Labor/Employment (35%) and Regulatory/Investigations (35%) were also the types of legal disputes that most concerned companies.
• 24% of all respondents expected the number of legal disputes for their company to increase over the next 12 months, down 1% from a year ago.

EDISCOVERY TRENDS

The report showed rises in respondents using technology assisted review and also in respondents conducting cross-border discovery.  Also a clear majority of respondents still rely on self-preservation to fulfill preservation obligations for at least some cases.

Cross-Border Discovery

• 41% of respondents have conducted cross-border discovery within the last 12 months, a jump of six percent over last year.  The number of respondents that conduct cross-border discovery in at least half of their cases doubled to 14%.

Technology Assisted Review

• 60% of all respondents are using technology assisted review for at least some of their matters, up 3% from a year ago.  66% of respondents use it in the US, as opposed to only 46% in the UK (despite the first cases approving predictive coding in England).
• 79% of larger companies surveyed use technology assisted review, up from 43% two years ago.
• Of those companies utilizing technology assisted review, 29% use it in half or more of their matters.

Mobile Device Preservation and Collection

• 49% of overall respondents had to preserve and/or collect data from a mobile device, a drop of 4% from last year.  19% of all respondents reported having to preserve and/or collect data from a mobile device in at least half of their matters.

Self-Preservation

• Overall, 73% of respondents rely on individuals preserving their own data (i.e., self-preservation) in at least some of their cases, with 59% relying on self-preservation in at least half of their cases (both numbers down only 1% from a year ago).

There are plenty more interesting stats and trends in the report, which is free(!) once again.  To access this year’s report, click here.

So, what do you think?  Do any of those trends surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Believe it or not, it has been six years ago today since we launched the eDiscovery Daily blog!

When we launched five years ago on September 20, 2010, we told you to not get “wild” with wildcards (and did it again last week) and we published our first case law post about a case where the spoliator of data was actually threatened with jail time.  We’ve now actually published exactly 500 posts about case law, involving more than 330 distinct cases!

Not only that, today is another milestone – we have now published 1,500 lifetime posts!  And, every post is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Back in 2010, our goal was to be a daily resource for eDiscovery news and analysis and we’ve continued to do so for six years now.

As always, we have you to thank for all of that success!  Thanks for making the eDiscovery Daily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

You would be amazed what happens on the Internet every minute of every day.

Can you steal 11.5 million electronic documents from a law firm without being detected?  Apparently, you can.

Nearly two-thirds of all data breaches were due to password issues.

BakerHostetler recently “hired” a new “attorney”, but that “attorney” doesn’t carry a briefcase.

If you have a rush eDiscovery project to get done, where do you turn for help?  The cloud, of course.

This seems obvious, but, if you’re running for office, don’t forget to close your porn tabs before taking a screenshot and posting it to your social media account.

If you’re a former IT administrator at a company and you deleted files before you left, you could go to jail.

The EU-US Privacy Shield was formally adopted.  Will it hold up better than the old “Safe Harbor”?  We’ll see.

The Wisconsin Supreme Court ruled that sentencing judges may (with some restrictions) take into account algorithms that score offenders based on their risk of committing future crimes.

Parties can cooperate in a predictive coding process, yet still disagree on the outcome of what’s produced.  Here’s proof.

Bad faith deletion of emails can cost you $3 million.

Believe it or not, Judge Peck refused to order a defendant to use Technology Assisted Review in this case.

Speaking of TAR, here’s another case in England which approved it, despite objections from the receiving party.  And, there is a bit of debate among TAR experts.

Have you ever seen an interview conducted online over a couple of days?  Here’s one that was.

Did you know that EDRM has a new owner?

Here’s the latest information on eDiscovery Business Confidence within the industry.  And, here’s a link to the webinar where we discussed it.

According to Gartner, Machine Learning is at the Peak of Inflated Expectations.  Their words, not mine.  Also according to Gartner, cloud eDiscovery solutions are gaining momentum in the marketplace.

I thought my example of 269 unique words that can be retrieved with a wildcard of min* to search for mining-related terms was a lot.  This example from a case we covered last week for a search for “apps” related terms has even more!

This is just a sampling of topics that we’ve covered.  Hope you enjoyed them!

Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!  We’re already at 1,500!  Can we break Pete Rose’s record?  I’ll bet we can!  :o)

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Last week, ACEDS hosted a webinar (sponsored by CloudNine) with expert commentary on the results of the Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  If you missed the webinar, you can catch a video of it now.

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

The lively one hour presentation and discussion was led by ACEDS Executive Director Mary Mack, with expert commentary from panelists George Socha, Co-Founder of EDRM and Managing Director of Thought Leadership at BDO, Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI, Zach Warren, Editor in Chief of Legaltech News and me.  All of the panelists had interesting comments and observations and we also received several good questions and suggestions from the audience for future surveys.  In three months, we’ll do it again!

The webinar video is available via our new Online Stream page here.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Last week, we covered results from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  Today, you can attend a webinar to hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

At 1:00 pm ET today (12:00 pm CT, 11:00 am MT, 10:00 am PT), ACEDS will be hosting the webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including:

• George Socha, Co-Founder of EDRM and Managing Director of Thought Leadership at BDO;
• Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI;
• Zach Warren, Editor in Chief of Legaltech News

And me, of course.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

Click on the link here to register for the webinar.  Hope to see you there!

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

I missed this earlier, but, last month, Gartner published the 2016 edition of its Hype Cycle chart.  Machine Learning is only one of several “smart machine technologies” that will be “the most disruptive class of technologies over the next 10 years”.  But, if you look at the chart closely, you will find that Machine Learning is at the “Peak of Inflated Expectations”.

The report (available here), which “distills insight from more than 2,000 technologies”, says the following regarding smart machine technologies:

“Smart machine technologies will be the most disruptive class of technologies over the next 10 years due to radical computational power, near-endless amounts of data, and unprecedented advances in deep neural networks that will allow organizations with smart machine technologies to harness data in order to adapt to new situations and solve problems that no one has encountered previously. Enterprises that are seeking leverage in this theme should consider the following technologies: Smart Dust, Machine Learning, Virtual Personal Assistants, Cognitive Expert Advisors, Smart Data Discovery, Smart Workspace, Conversational User Interfaces, Smart Robots, Commercial UAVs (Drones), Autonomous Vehicles, Natural-Language Question Answering, Personal Analytics, Enterprise Taxonomy and Ontology Management, Data Broker PaaS (dbrPaaS), and Context Brokering.”

The infographic shown below (have I told you lately how I love infographics?) shows the following phases: “Innovation Trigger”, “Peak of Inflated Expectations”, “Trough of Disillusionment”, “Slope of Enlightenment” and “Plateau of Productivity”.  It also color codes each of the technologies as to the number of years to mainstream adoption (i.e., less than 2 years, 2 to 5 years, 5 to 10 years, more than 10 years and obsolete before plateau).  Sorry folks, self-driving cars (a.k.a., Autonomous Vehicles) are still more than ten years away.  Machine learning is at the top of the curve (i.e., “Peak of Inflated Expectations”) and is predicted to become a mainstream item within two to five years.  Great news, though, in the short term, that means we’re about to head down the “Trough of Disillusionment”.  Oh dear.  Here is the infographic again, full-sized for easier reading:

Here is additional commentary from Sharon Nelson of Ride the Lightning and Serdar Yegulalp of InfoWorld.

So, what do you think?  Are the expectations for machine learning technology inflated at this point?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Earlier this week, we covered results from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site (in my post, I focused on trends over the past three surveys to see how the responses have varied from quarter to quarter).  Now, you can hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there twelve were more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.  The end result is perhaps the most meaningful eDiscovery Business Confidence Survey results yet.

Next Thursday, September 15, ACEDS will be hosting a webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including George Socha, Co-Founder of EDRM and Managing Director of Thought Leadership at BDO, Eric Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI and me.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

The webinar will be conducted at 1:00 pm ET (which is 12:00 pm CT, 11:00 am MT and 10:00 am PT).  Oh, and 5:00 pm GMT (Greenwich Mean Time).  If you’re in any other time zone, you’ll have to figure it out for yourself.  Click on the link here to register for the webinar.  Hope to see you there!

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The results are in from the ACEDS and Complex Discovery Summer 2016 eDiscovery Business Confidence Survey, which was conducted last month and (as was the case for the Winter and Spring surveys) the results are published on Rob Robinson’s terrific Complex Discovery site.  Are individuals working in the eDiscovery ecosystem still as confident in the business as they were in the first and second quarters?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  So, to avoid redundancy, I will focus on trends over the past three surveys (for the most part) to see how the responses have varied from quarter to quarter.

More Than Double the Respondents: This time, there were 168 total respondents to the survey, which is more than double the number of respondents as the Spring survey.  In fact, there were twelve more respondents than the first two surveys combined.  Obviously, sponsorship from ACEDS and promotion from EDRM, LTPI, Masters Conference, and Women in eDiscovery helped increase the number of respondents dramatically.

Providers Were No Longer the Majority Respondents: Of the types of respondents, 78 out of 168 were either Software and/or Services Provider (32.7%) or Consultancy (13.7%) for a total of only 46.4% of respondents as some sort of outsourced provider (down from 61.9% last time).  Law firm respondents were in a strong second place with 33.9%.  Even the percentage of other respondents (which includes Corporation and Governmental Entity respondents) was up from 11.7% (Winter) to 14.4% (Spring) to 19.7% this time.  Here’s a graphical representation of the trend:

Less Respondents Consider Business to Be Good: Less than 48% (47.6%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 13.7% rating business conditions as bad.  Last time, those numbers were 61.8% and 3.9% respectively.  While this (and other) ratings reflect a dip, part of that could be attributable to the greater diversity in respondents (I would expect that providers would typically be more optimistic than the other groups).  Then again, this could be a more realistic reflection of the industry as a whole.  Here is the trend for the first three quarters:

Almost Everyone Still Expects eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (97.0%) expect business conditions will be in their segment to be the same or better six months from now (virtually changed from last quarter, though the “better” component dropped from 53.9% to 44.6%).  That wasn’t reflected as much in the revenue and profit projections though, as 91.7% expected as good or better revenue and only 85.7% expected as good or better profits (“lower” reached a high of 14.3%).  Here is the profits trend for the first three quarters:

Increasing Volumes of Data and Budgetary Constraints Continue to be Considered the Most Impactful to eDiscovery Business: Increasing Volumes of Data (28.6%) was actually considered to be the most impactful to the business of eDiscovery over the next six months, followed very closely by Budgetary Constraints (28.0%, one vote off).  Lack of Personnel (14.3%) rose to third, Inadequate Technology (11.9%) rose considerably to fourth,  Increasing Types of Data (10.1%) staying steady at fifth and Data Security (7.1%) dropping to dead last (it was second and third, respectively, in the first two surveys.  The graph below illustrates the distribution across the past three surveys.

So, as the survey has become more diverse, the importance of Increasing Volumes of Data and Budgetary Constraints combined has risen from 42.5% in the Winter to 56.6% in the Summer.  On the other hand, the importance of Data Security has dropped by two-thirds, from 21.3% in the Winter to 7.1% in the Summer (the number of respondents that selected data security – 12 – was exactly the same as last time even though the number of respondents more than doubled.  Does that mean that providers place a higher priority on data security than law firms and other respondents?  Maybe.

Level of Support in eDiscovery Business Reflects Considerable Diversity in Responses: A new question we’re covering here shows a virtual even split among type of respondents (based on role), with Executive Leadership and Operational Management tied at 34.5% of respondents each and Tactical Execution close behind at 31%.  In the first two surveys, Executive Management was a majority of respondents with 56.3% and 55.6% respectively.  So, this survey by far reflects the most balanced results based on role.  It will be interesting to see if that trend continues in future surveys.  Here’s that breakdown, quarter by quarter:

Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check it out.

I’ll be participating in a panel discussion webinar moderated by Mary Mack of ACEDS with George Socha of EDRM also participating as a panelist where we will discuss these trends and others.  Click here to register for that webinar.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.