It’s been years since electronically stored information began working its way into litigation, giving birth to an industry and changing the way litigation is practiced. Yet today, the discovery industry and the approaches of legal practitioners to the discovery process are still in flux, with shifting vendors, a movement away from legacy technology, and continued questions about the role of discovery in the court system.
To see how discovery is being done today, and how legal professionals see themselves doing it in the future, we’ve put together our first “Discovery Industry Snapshot.”
Based on a survey of Logikcull users, the snapshot provides valuable industry insights. Here are some of the key takeaways:
When we interviewed U.S. Magistrate Judge James C. Francis IV in May, he noted that “To some extent, folks view electronic discovery as somebody else's problem.”
“I don't think they would view civil procedure as somebody else's problem,” Judge Francis continued. "Yet, they are very much parallel.”
Judge Francis is right. For the time being, our survey shows, the discovery process often remains “someone else’s problem,” at least when it comes to law firm partners. According to our survey, the associate attorneys and law firm support staff continue to be the primary handlers of the vast majority of discovery.
Legal professionals remain vexed by the slow pace of tech adoption. A quarter of respondents surveyed said that hesitancy to embrace new technology solutions was one of the biggest discovery challenges they faced.
While there are many reasons attorneys are slow to embrace technology—a generally conservative approach to changing practices, experience with manual discovery processes and legacy software, a preference for familiarity despite inefficiency, etc.—it’s clear that these attitudes are leaving lawyers’ more tech-savvy colleagues frustrated.
The future is in the cloud and more and more legal professionals are starting to recognize this. When asked how much of the firm’s technology will be cloud-based in the future, a third of respondents said that all of their technology would be in the cloud. Another 29 percent believed that most of the firm’s tech, from eDiscovery to email to practice management, would reside in the cloud.
The growth of discoverable ESI has not only changed the amount of discovery practitioners face in cases, it has brought eDiscovery into new practice areas where it was uncommon before. With ever-growing sources of ESI, from social media to the Internet of Things, the amount of data available for litigation and subject to discovery is growing at astonishing rates. Meanwhile, discovery costs can make up 50 percent or more of the litigation expenses in civil cases, a burden that could be exacerbated by increasing data growth.
Indeed, survey respondents cited new data sources as one of the main technology trends changing the practice of law. And with data collection, new technologies, and the growing volume of ESI named as some of the biggest discovery challenges facing legal professionals, it’s clear that expansive data growth, coupled with the cost of discovery, is already impacting the profession. And these trends will only grow in the years ahead.
Yet very few legal professionals are planning for these changes. Less than a quarter of survey respondents said their firm was forecasting growth in eDiscovery. Those few who are, we suspect, will be much better prepared to handle the discovery challenges ahead—even to capitalize on them to help grow their firms.