2009 Survey Results
2008 Survey Results
2007 Survey Results
2009 Benchmarking Study of Electronic Discovery Practices for Government Agencies
The 2009 Benchmarking Study of Electronic Discovery Practices for Government Agencies is an independent research project conducted by IE Discovery, Inc. The objective is to gather opinions and experiences from various government attorneys, records managers, paralegals and information technology (IT) personnel regarding their perception of e-discovery preparedness within their government agency. We conducted this survey so that respondents could compare their perspectives to those of their peers.
The 2009 survey results confirm the trend of increasing size, scope, and efforts required in dealing with electronic discovery. This year's survey participants came from twenty-five government agencies. An increase in participation form paralegals, records managers, and IT professionals demonstrates that collaboration on e-discovery processes continues to expand to those beyond the legal department.
E-Discovery Initiatives
E-Discovery Initiatives are up across the board, with significant increases in the areas of legal reviews, individual legal holds, IT contacts and forms/methods of production. One significant spike is the consideration given to attachments (document families) and how they are treated when data is collected and processed. This rise is not surprising considering that the treatment of document families has been the subject of several significant opinions from the courts recently. Similarly, chain of custody, legal holds, and collection practices in general have all seen significant rises in activity, reflecting the growing pitfalls and financial consequences of handling such matters ineffectually. We anticipate that these trends will continue to increase over the next 12 months.
Survey Topics
Areas of Confidence
Over the past three years, the areas of confidence in e-discovery have remained quite stable. This year's survey responses once again indicated that participants felt most confident in legal review and document retention. In general, attorneys were most confident in the legal aspects of discovery, such as chain of custody and document retention, whereas non-attorneys felt most confident in the more technical aspects of production and processing. It is logical that participants would be the most confident in the areas in which they are professionally trained.
Document Collection
The participation of lawyers in the collection process continues to decrease. In contrast, the number of respondents who indicated that document collection is handled by custodians, IT personnel, and contractors has steadily risen from year to year. This reflects the challenge that litigants face in gathering exponentially increasing volumes of electronic data from all corners of their network. It appears that agencies find those who are professionally trained in managing and storing data to be the best qualified to collect it.
Document Production
The format of document productions varies widely from one government entity to another. Producing documents in paper form is still popular with some agencies. However, other agencies seem to have no clear favorite method of production, with paper, native and images with text all being used at various times. Perhaps this is due to the fact that many agencies have multiple litigation teams who prefer diverse methods of production. It could also stem from the fact that the venue and opposing party can influence the form of production. The format of production appears to be driven by several factors, including the volume and type of data as well as the unique nature of each case. Over the last three years, the favored production formats have remained relatively unchanged. Paper continues to be the most popular, followed by image with text and then native productions.
Electronic Discovery Challenges
When asked to identify their greatest challenge in complying with the FRCP for electronically stored information, the majority of respondents selected internal systems and processes, as well as finding qualified staff with a good mix of IT and legal expertise. Both of these challenges saw increases from 2007. In contrast, getting buy-in from upper management and finding budget are now less significant factors, having decreased from 2007 to 2009.
With regard to internal systems and processes, as data volume and complexity increase, it is plausible that government agencies are unable to keep this pace in updating the processes that inhibit e-discovery collaboration.
Moreover, when asked to rate how well their IT department understands their e-discovery needs on a scale of 1-10, the majority of participants rated them 5 or lower. It appears that open communication between IT and legal is a challenge that many of our participants face. To that end, they indicated that working groups are now focusing more closely on interdepartmental communication.
There is a significant trend toward outsourcing, in both the IT department with whom government employees work on e-discovery matters, as well as electronic discovery processing. This could be related to the agency's challenge in finding the right staff with IT and legal expertise. Perhaps agencies find that outsourcing to a firm which specializes in IT and/or e-discovery is the most practical approach to this problem. Such firms may be better equipped to cope with the complex and constantly evolving challenges of electronic discovery.
Intensity of E-Discovery
The intensity of e-discovery is trending upwards, in both the percent of cases and the percent of individual time consumed by matters involving e-discovery. This year's survey saw a decrease in the 0-25% bracket of cases and time involved in e-discovery. Regarding individual time consumed by e-discovery, a jump of responses in the 76-100% bracket further supports this upward shift in intensity.
2008 Benchmarking Study of Electronic Discovery Practices for Government Agencies
The 2008 Benchmarking Study of Electronic Discovery Practices for Government Agencies is an independent research project conducted by IE Discovery, Inc. The objective is to gather opinions and experiences from various government attorneys, records managers, paralegals and information technology (IT) personnel regarding their perception of e-discovery preparedness within their government agency.
We conducted this survey so that respondents could see where they and their agency fell in the broad spectrum of e-discovery preparedness and to have some comparison to their peers’ views.
This year’s survey results confirm the upward trend in the size, scope and effort required to deal with electronic discovery. The survey participants reported an increase of 8% in the time they spent dealing with electronic discovery issues with 71% of respondents spending up to 25% of their time on these issues. More than 30% of agencies have either hired or designated an "e-discovery attorney." Not surprisingly, participants also reported an increase in the percentage of the litigation budget that is now used for electronic discovery.
Productions in native file format are on the rise and the number of paper productions and requests for paper are inching downward. This is understandable given the spiraling cost to image and OCR large quantities of data/documents. Native files are also attractive because, in addition to being able to potentially make use of metadata, there are significant savings that can be realized by reviewing in native file formats without incurring processing costs. Reinforcing the increase in the use of native files is a rise in the number of document/data estimates that are measured in Gigabytes (GB). This measure is becoming more common and is sure to overtake the traditional page count within the next few years.
The dynamics of the collection process continue to change. One significant trend is that attorneys are becoming less involved in the hands-on collection of data. Custodians and IT departments (under the direction of attorneys) are becoming the key collection personnel whereas direct attorney participation is declining. Participants continued to rank speed, chain of custody preservation and cost (in that order) as the top three factors considered in determining what collection method to utilize.
2008 saw more than a 20% increase in the use of internal and external web repositories for the hosting of electronic evidence. In addition, participants reported a 12% increase in the use of de-duplication programs. Additionally, the utilization of commercial software(Concordance/Summation) decreased but traditional databases (MS Access/Excel), saw a small increase. This may be due to electronic discovery hitting more and more attorneys who use a tool they already have.
Survey results show that IT departments are becoming increasingly involved in dialogue regarding electronic discovery. 80% of survey participants have engaged their IT departments in this dialogue. It should be noted that 20% of survey participants indicated that communicating with the IT department was the biggest challenge in complying with the discovery rules.
Survey participants reported increased comfort with many aspects of the electronic discovery planning process with significant increases in confidence in the areas of document retention, collection and chain of custody. Survey results overall show that the importance of planning is increasingly recognized. Participants indicated increased efforts in the standardization of how the following are handled: litigation holds; 30(b)(6) witness designation and preparation; and meet and confer protocols. Others indicated that these were planned future initiatives.
Survey participants were asked to list their main electronic discovery challenges. The top five were:
1. Internal systems and processes (38%)
2. Communication with the IT department (20%)
3. Finding good e-discovery staff with the right mix of IT and legal knowledge (18%)
4. Finding the budget to put systems and tools in to place (15%)
5. Getting buy-in from upper management (10%)
We look forward to gathering information in future surveys for the purpose of building a comprehensive knowledgebase on the state of electronic discovery to share with agency attorneys, records managers and IT personnel.
2007 Benchmarking Study of Electronic Discovery Practices for Government Agencies
The 2007 Benchmarking Study of Electronic Discovery Practices for Government Agencies is an independent research project conducted by IE Discovery, Inc. with the objective of gathering opinions and experiences of various government attorneys, records managers, paralegals and information technology (IT) personnel regarding their perception of e-discovery preparedness within their government agency.
We conducted this survey so that respondents could see where they and their agency fell in the broad spectrum of e-discovery preparedness and to have some comparison to their peers’ views. This report contains the statistical results of the survey and answers from all respondents in the 9 day period from Tuesday, November 6, 2007 to Wednesday, November 14, 2007. There were 51 government attorneys from 20 government agencies who participated. As in any survey, not all participants answered every question.
We look forward to gathering information in future surveys for the purpose of building a comprehensive knowledgebase on the state of electronic discovery to share with agency attorneys, records managers and IT personnel.
