But all is not lost, Socha and Gelbmann also announce that they “intend to replace those rankings with an improved way to assess providers and their capabilities.”

The post provides some history about their survey and why it was attempted in the first place. Six years ago, the e-discovery market was a very spooky place, and it was difficult to find any information on vendors and providers. That sounds ridiculous today with the overwhelming daily deluge of e-discovery information we’re all inundated with.

Six years ago, however, George and Tom stepped up to the task of providing a practical guide to the world of e-discovery with their survey and it has been one of the most influential assessments of the industry.

I had the opportunity to participate in this year’s survey, and I can say from first-hand experience that the survey is extremely thorough and well-organized.

Now George and Tom, instead of resting on their laurels, have decided to change their direction because they are aware that their results a) “can affect the share prices of publicly held companies” and b) “they are sometimes the most important factor in determining which provider is selected to take on a project or deliver a software program.”

I have the utmost respect for both gentlemen in this decision. They have ALWAYS presented their survey “as objectively and fairly as possible,” but alas they realize that their lists are sometimes used as the ONLY factor in deciding what vendor or service provider to use, even with their stern warnings cautioning against this.

I  sincerely admire this statement:

We are hearing, as well, that consumers are using them as a substitute for the work they should be doing themselves — analyzing consumer needs and assessing what and whose services and software might meet those needs.

Everyone likes lists, and in my experience, lawyers love them. Regardless of how much experience I have with an e-discovery vendor, or how much research I put into using a particular vendor, if they are not on the Socha-Gelbmann list, they are suspect in the eyes of every lawyer I have worked with.

To be fair, this reflects the respect that the Socha-Gelbmann survey has garnered, and it’s always easiest to assess an industry with a list (e.g. Fortune 500 or AmLaw 100).

But just because an e-discovery service provider is not at the top of the list doesn’t mean that they are not the best selection for the project at hand in terms of flexibility, cost, capacity and experience. Unfortunately, proposing an appropriate vendor for a project usually requires a good amount of experience in the industry which many legal professionals do not have.

I am excited to see what George Socha and Tom Gelbmann come up with next. They promise “to continue to publish a high level view of key industry trends, market size and providers and their capabilities in Law Technology News.”

Link to story.

UPDATE: Sharon Nelson posts her thoughts on the demise of the Socha-Gelbmann Survey as we know it.

George Socha and Tom Gelbmann have once again successfully submitted the results for their exhaustive survey of service and software providers in the e-discovery industry.

While the full survey will set you back a few thousand, George and Tom graciously provide an overview of the results through Law Technology News. You can view a sneak peek preview of the results on www.eddupdate.com (with some juicy comments at the bottom), and the full story entitled “Mining for Gold” is the cover story of the August issue of Law Technology News.

Some of the most valuable data out of the Socha-Gelbman Survey is the numbers on the overall e-discovery market:

Based on our research, we estimate that in 2007 commercial expenditures on EDD [electronic data discovery] topped $2.7 billion, up 43% from 2006, and that they will grow by 21%, 20% and 15% in 2008, 2009, and 2010.

The rankings of the top overall e-discovery software and service providers were not all that surpring to me personally – the list hasn’t changed too much in the last few years save for a few companies that hop around on the list. FTI Consulting Inc. again garnered some of the top spots in the list due to their heightened activity in the industry including some recent acquisitions.

While these lists are some of the best you can find in relation to e-discovery service and software providers, please heed the warning from George Socha and Tom Gelbman:

… we cannot emphasize too much that these still are generalized rankings.  Anyone who makes buying decisions primarily on these rankings or any other generalized rankings is a fool.  Although as part of your selection process you might choose to consider these rankings, … you really should conduct an analysis that focuses on your specific needs.  No generalized set of rankings will do this for you.

Link to story.

UPDATE: Sharon Nelson posts about the UK perspective on the Socha-Gelbmann and also mentions the “irritation factor” of all the press releases.

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.

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.)

First, Fortiva posted the results of a survey conducted for them by iTracks with the alluring title “One in Five Businesses Have Settled a Lawsuit to Avoid the Cost of Recovering and Searching Through Email.” The survey was conducted between November 7-23, 2007 among 90 professionals “directly involved with legal discovery in North America.” Several interesting bullet points come out of the survey:

• 47% of respondents do not agree that their legal team can effectively review relevant e-mail in the time alotted by the FRCP before the “meet and confer” session
• 51% of the respondents have either implemented, or are planning to implement, technology that allows them to easily search and review e-mail
• 69% of the respondents report that they face at lesat one litigation hold each year, but only 37% have a formal litigation hold process in place
• 37% of the respondents conduct more than 21 searches through old e-mail each year to gather information for legal reasons
• 35% of the respondents are NOT confident that e-mails are fully reviewed to ensure attorney-client privilege is not waived before being sent to opposing counsel
• 51% of the respondents claimed the average cost of litigation (excluding settlement costs) was over $200,000, with 8% putting the average cost over $1 million

Next, LexisNexis reported the results of their Corporate Counsel Survey which was conducted between October 29-30, 2007 at the 2007 Association of Corporate Counsel Annual Meeting. “Seventy-six verified corporate counsel attorneys from diverse geographic and industry backgrounds were randomly selected and participated in the 14 question online survey.” Notable bullet points:

• Respondents reported that their biggest challenges in complying with the FRCP for electronically stored information involved internal processes and systems:
  • Communicating with IT departments (27%)
  • Finding budget to put systems and tools into place (25%)
  • Getting buy-in from upper management on the importance of litigation preparedness (21%)
  • Finding e-discovery staff with a good mix of IT and legal expertise (9%)
• 70% of the respondents incorrectly believe that the rules require them to product documents in their “native file” format
• 76% of the respondents report that the new rules have NOT helped trim costs nor reduce the scope of discovery work, and 73% of the respondents said their company has seen an increase of up to 20% in discovery workload as a result of the new rules
• 82% of the respondents report their company has a document retention policy; 75% report they have implemented a formal legal holds process; and more than 40% report they have conduted employee training for compliance

E-discovery vendor Kroll Ontrack took a bit of a different approach by offering a look at “The Most Significant Electronic Discovery Cases Under The New Federal Rules of Civil Procedure.” The press release reports that approximately 105 e-discovery opinions have been reported since December 1, 2006 and they break down as follows:

• 25% of cases addressed discovery requests and motions to compel
• 24% of cases addressed spoliation/sanction
• 23% of cases addressed issues involving the form of production
• 9% of cases addressed preservation/litigation holds
• 7% of cases addressed attorney-client privilege and waiver
• 6% of cases addressed production fees
• 6% of cases addressed admissibility of electronic evidence

The Kroll Ontrack press release also boldly lists the top 5 most significant e-discovery cases from 2007.

The last press release is mostly a puffery piece from Mimosa Systems, although the Byte and Switch headline read “Mimosa Observes FRCP Anniversary” (and also observed by the Information Governance Engagement Area blog).  The release discusses how many companies are now realizing the need for e-mail archiving applications (such as that from Mimosa Systems) which “provides important benefits for companies required to satisfy data governance with respect to FRCP.”

And lastly, this is not a press release, but the FRCP itself is celebrating their e-discovery amendment birthday by doing a little spring cleaning on the language of the rules. The Rules Advisory Committee has apparently been busy over the last few years working on a comprehensive “style” revision of the Civil Rules and the fruits of their labor went into effect on December 1, 2007. You can read full reports about the new amendments at http://www.uscourts.gov/rules/congress0407.htm.

The Excerpt from the Judicial Conference Report repeatedly states that the revisions focus on “style” revisions for the FRCP (as well as other Rules) to better “clarify and simplify them without changing their substantive meaning.” To accomplish this, the advisory committee

• used formating changes to achieve clearer presentation;
• reduced the use of inconsistent and ambiguous words;
• minimized the use of redundant words and terms;
• and removed words and terms that were outdated.

Examples of these changes included breaking down blocky paragraphs to make them easier to read. Ambiguous words like “shall” were replaced with words like “must,” “may,” or “should” where necessary to better convey the meaning of the rule. Changes were made to numbering schemes although all rule numbers stayed the same – an example is that FRCP 26(f)(3) is now FRCP 26(f)(3)(C) which truly makes better sense when you see the rule in toto.

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.

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

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

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.”

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.