Costs Haven’t Hit Inflection Point for In-House E-Discovery Efficiencies
A Bloomberg BNA and Catalyst survey found that ad hoc processes still reign in corporate e-discovery, though legal departments are eyeing future changes.
Having to handle ever-growing and diverse datasets, e-discovery teams are facing expanding costs and risks. But while some are centralizing their e-discovery operations to reign in inefficiencies, most still have an ad hoc approach to e-discovery, according the “Managing Litigation: E-Discovery Resources Survey Report.”
The report, sponsored by Bloomberg BNA and Catalyst Repository Systems, is a survey of 118 chief legal officers, general counsel and corporate attorneys. When asked to list their biggest e-discovery challenge, 42 percent of respondents cited managing the overall costs of e-discovery or keeping within budget, while 36 percent struggled either with managing the volume of e-discovery data or integrating e-discovery tools with other legal systems.
Yet these challenges did not spur legal departments to streamline their e-discovery in-house. A majority, 72 percent, of respondents said they purchased e-discovery technology or services on an “as-needed” rolling basis, while 28 percent purchased it annually. Only 19 percent also said they have a global platform they use for most matters, while 50 percent said they have different technology and services for each matter.
Larry Barela, chief technology officer at Catalyst, noted that while many legal departments may feel overwhelmed by e-discovery, if “[e-discovery] costs have not risen to a point where the company as a whole feels they want to control those costs, they don’t want to make changes.”
And for many, that inflection point hasn’t yet arrived. Instead of addressing inefficiencies in e-discovery, Barela said, corporations are instead turning to others to solve their e-discovery challenges.
“Most companies just want the e-discovery problem to go away so long as the costs are within their budget,” he said. “I think plenty of companies are just happy to let outside counsel deal with any e-discovery as long as the costs aren’t exorbitant.”
To be sure, it has helped that many legal departments have expanded their e-discovery budgets. Almost half, 49 percent of respondents, noted their e-discovery spending has increased over the past two years, while 23 percent said it stayed the same. Only 5 percent saw a decrease in such spending, while 23 percent did not know their budget levels.
But being able to still shoulder e-discovery costs is not the only reason corporations still perform e-discovery in an ad-hoc fashion. “I think that there is a fear for some corporations to change,” Barela said. He added, “I don’t think many companies are willing to rip and replace their current processes.”
There are signs, however, that legal departments are planning a more proactive approach with managing e-discovery in the future. In the survey, 60 percent said they were more closely monitoring their e-discovery spending, with 33 percent considering doing so in the future. In addition, 49 percent said they have shrunk the number of vendors they use to provide services, with 43 percent considering such action as well.
Legal departments were also looking at improving their e-discovery efficacy through technology. While 27 percent are currently encouraging their vendors or outside counsel to use machine learning technology in e-discovery, 53 percent are considering doing so. In addition, 22 percent currently use visualization or visual analytics, while 50 percent considering it as well. E-Discovery, Eclipse SE, Relativity, Kcura
While not widely currently deploying machine learning tools, however, a majority (73 percent) of legal departments used technology-assisted-review (TAR) in e-discovery. Most used TAR for identifying relevant documents in a database or perform ring early case easement, while 12 percent used it for compliance or information governance.
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