Category: E-Discovery Surveys

A story on Law.com entitled "Outbound E-Mails Spell Inbound Legal Trouble for Corporations" points to a recent study from Proofpoint.com on how corporations are concerned about the content of their outbound e-mail.

This is Proofpoint’s fifth annual study of outbound e-mail and is designed to examine the level of concern about the content of e-mail and how large organizations are mitigating the risks associated with outbound messaging. This year’s study also expanded to include a look at Web-based e-mail, blogs, social networking sites, etc.

The study received responses from a total of 424 "IT decision makers" including CIOs and IT directors from the US, UK, Germany, France and Australia.

Here are a few highlights that perked up my e-discovery ears:

"In non-compliant e-mail messages leaving your organization, what is the most common form of inappropriate content?"

• 30% - Adult, obscene or potentially offensive content
• 26% - Confidential or proprietary business information about your organization
• 17% - Personal healthcare, financial or identity data which may violate privacy and data protection regulations
• 13% - Valuable intellectual property or trade secrets which should not leave the organization

"Using your best estimate, what percent of your organization’s outbound e-mail contains content that poses a legal, financial, or regulatory risk to your organization?" Answer - 12%.

56% of US respondents indicated that they are "concerned" or "very concerned" about e-mail sent from mobile devices (smartphones or other wireless, Internet-connected devices) as a potential conduit for exposure of confidential or proprietary information.

56% of US respondents indicated that they are "concerned" or "very concerned" about Web-based  e-mail (i.e. services such as Google Mail, Yahoo! Mail, Hotmail, etc.) as a conduit for the exposure of confidential information.

Regarding Policies:

• 98% of US companies (100% in UK) have an "acceptable use policy for e-mail" that includes personal use rules, monitoring and privacy policies, offensive language policies, etc.
• 84% of US companies (75% in UK) have an "e-mail retention policy" that defines what information sent or received by e-mail should be retained and for how long.

24% of US companies reported that they produced employee e-mail in the past 12 months subject to a civil or criminal subpoena. In US companies with 20,000 employees or more, that number rose to 34%. Elsewhere in the world, employee e-mail was subpoenaed less frequently - 6% in UK, 10% in Germany, 10% in France, and 3% in Australia.

"How important to your organization is reducing the legal and financial risks associated with outbound e-mail in the next 12 months?" Answer - 57% of US companies answered that it is "important" or "very important" for their organizations.

"How important to your organization is reducing the legal and financial risks associated with outbound HTTP traffic (e.g., Web-mail, blog postings, etc.) in the next 12 months?" Answer - 51% of US companies answered that it is "important" or "very important" for their organizations.

Survey can be downloaded here or Rob Robinson has posted it here on his Complex Discovery blog.

I had the good fortune of taking a long vacation right after Thanksgiving, which meant I missed an opportunity to post on the one year anniversary of the so-called “e-discovery amendments” to the Federal Rules of Civil Procedure. These amendments went into effect December 1, 2006 and they have certainly rippled into the litigation landscape over the past year.

While there wasn’t a lot of fanfare about the anniversay (well, I didn’t get invited to any birthday parties), there was a smattering of press releases and information that dribbled around the Web to mark the occasion.

At least two vendors marked the anniversay with surveys. I presume a lot of folks are tired of seeing the constant stream of e-discovery surveys, but they are one of the best ways to get a good grasp of how the litigating world is dealing with the burden of e-discovery. Since so much litigation is understandably conducted behind closed, confidential doors, general surveys help us follow the evolution of e-discovery. (In fact, I’ve now added an “E-Discovery Surveys” category to this blog.)

Continue reading »

A story from PCWorld.com entitled “E-Discovery Law a Boon for Lawyers” (via Michael Arkfeld’s Electronic Discovery and Evidence blog) reports the findings from the Fourth Annual Litigation Trends Survey sponsored by Fulbright & Jaworski L.L.P. Fulbright’s press release does an excellent job of summarizing the survey.

On the topic of e-discovery, the survey reports that motions, hearing, or rulings, in the past year related to e-discovery remain a rare or nonexistent event for 70% of more of the survey sample (which included 253 U.S. corporate counsel and 50 U.K. corporate counsel).

In 2006, 37% of the respondents used outside e-discovery vendors. That number jumped to 51% in 2007.

More than half of the respondents said that more than 5% of their litigation spending the past 12 months had gone to preproduction privilege review.

And lastly, 89% of the survey respondents responded that they have a litigation hold policy in place, up from 80% in 2006, and 76% in 2005.

The survey covers a wide range of topics including International litigation, class actions, and IP matters.

Link to story and survey.

Catherine Sanders Reach is the Director of the ABA Legal Technology Resource Center and she summarizes the findings of the Center’s latest Legal Technology Survey on Law.com (reprinted from Law Technology News). The Center has also posted a nice, quick podcast on the results accessible from the Survey page.

I can’t find information on exactly who responded to the Survey, but I recall from past years that it is a fairly broad spectrum from solo practitioners to large firms. 

Here are some of the numbers regarding electronic discovery:

57% of respondents have never received an e-discovery request (down from 62% who never received an e-discovery in 2006, and 73% who never received an e-discovery request in the 2004-5 survey)

13% of respondents receive an e-discovery request 2 times or less a year, and 16% receive an e-discovery request 3-11 times per year

And most interesting: 

26% of respondents say that they have never made an e-discovery request to an opposing party, which is way down from the 69% who said they had never made an e-discovery request in 2006

Link to Survey and link to summary

Océ Business Services and their CaseData division have published a survey entitled “In Pursuit of Proactive Litigation Preparedness: The Dawn of the Discovery-Ready Enterprise.”

The study was conducted in March & April of 2007 and the results are based on 101 completed surveys - 42% corporate counsel/legal department staff and 58% law firm attorneys/litigation support staff.

Generally, the results mirror what other surveys have found - that a large number of corporations are unprepared to respond to an electronic discovery request. In the Océ Business Services survey, only 10% of in-house counsel consider their company very well prepared to comply with a discovery request for electronic and paper documents, and 55% consider their company NOT well-prepared.

The survey further reports that both corporate and law firm attorneys agreed on five major factors that are important to effectively comply with an e-discovery request:

1. Having a functioning e-discovery response strategy in place
2. Having a well-planned and complete records management program in place
3. Knowing the IT structure of your company/client
4. Consistency in implementing discovery practices
5. Having a legal hold system in place

I enjoy the sections of the survey that examine scenarios such as “The ‘We are unaccountably unprepared’ effect” and “The ‘We agree we must be more committed’ deflection.” Here are some of the more pungent numbers from the survey:

• 33% of corporate counsel frankly state they do NOT understand the FRCP amendments very well
• 50% of large enterprises do not have a fully implemented program to manage records
• 92% of the surveyed companies with record programs are vulnerable when it comes to ESI and preparedness for e-discovery

Link to survey

A good column by Eric Sinrod of Duane Morris on CNET about the recent survey by LiveOffice on how organizations are unprepared to respond to an e-discovery request.

Interesting stats:

“According to the survey, an average employee will send and receive more than 135 e-mails daily. Thus, a midsize company with 500 employees will generate 17.5 million e-mails per year. (Moreover, the average employee spends 2.5 hours weekly managing his e-mail box, meaning that a midsize company with 500 employees potentially loses 65,000 hours of productivity annually.) Naturally, the magnitude of the e-discovery task is far greater for much larger companies.”

James Rogers, Senior Editor of Byte and Switch in his Mr. Rogers’ Neighbourhood column Email’s Mea Culpa reports on a survey released by Osterman Research and sponsored by LiveOffice.

The survey polled 400 IT managers:

“IT managers find e-discovery requests so painful that dealing with the IRS was the only activity respondents found more unpleasant. In fact, more than half of survey respondents cited that they’d rather have a cavity filled than respond to an e-discovery request.”

Lastly, 52% of the IT managers polled do not have an e-discovery plan that has been prepared by legal counsel.