Did You Miss Last Weeks Chat with Rich Robinson of Toyota on the EDiscovery Channel? Take A Look Here.

August 3, 2021

Rich Robinson of Toyota chats with Rachi & Tom about growing up in Rhode Island, working with disadvantaged youth then transitioning to law firm database work. After stints at firms in Boston and Dallas he ended up in working for a short time with an eDiscovery vendor then finally found his home in the corporate world. A fascinating story I’m sure you’ll enjoy hearing.


July 6, 2021
Chris Dale (@chrisdaleoxford) | Twitter

here’s what Chris had to say about it …his comments include a link to the recording on the YouTube EDiscovery Channel

Did You Not See Meribeth Banaschik of EY Germany Talking with Rachi and Tom O? Here It Is Again.

June 22, 2021

Hear Meribeth tell the fascinating story of her journey from Texas to Germany, with a stop to become a Solicitor of England and Wales along the way, and her approach to consulting with her clients on complex cross-border matters. Not to mention recounting her mastery of Denglish. A great conversation you will not want to miss!

In Case You Missed It: Scott Cohen of Winston & Strawn Chats with Rachi and Tom

June 7, 2021

Scott is the manager of eDiscovery & Information Governance/Practice & Client Services for Winston & Strawn where he is responsible for all aspects of the firm’s litigation support technology, electronic discovery operations, and document review center management. Listen to him tell us how get there and give his thoughts on how to build a great team.

Small Firms Don’t Use EDiscovery Software? Are You Serious?

May 25, 2021

I was astonished to read in a blog post on eDiscovery Today last week that “80% of small law firms aren’t investing in eDiscovery.” because “All that’s available is ‘stripped down versions of enterprise software, or legacy systems that are still using technology circa 2011.’ ”.

Are Small Law Firms the “Long Tail” of eDiscovery?

My first reaction was, well my first reaction was a string of obscenities. My second reaction was a string of more obscenities. Because as Mark Twain once observed in Pudd’nhead Wilson’s Calendar “When angry count four; when very angry, swear.”

But then I thought, let’s take a deeper look at this. I was surprised to find that the source for the article was the 2019 State of U.S. Small Law Firms Report published by Thomson Reuters. You’d think that’s a good source, right?

Maybe not so much. First of all, when you download the report, the title of the PDF is 2019 Report on the State of the Legal Market: A View from the Midsize Firms. Second there is no discussion that I can see of who they surveyed, who replied or what the specific questions were.  Third, if you look at page 14 of the report, it shows the two graphics below:

Wait, so over ¾ of the respondents installed no software of any kind the year before the survey and planned no installs for the year after the survey?  Am I reading this correctly?  Law firms of all sizes aren’t installing any software at all?  Isn’t that contrary to the “small firms don’t install software” premise?

So, what is going on here? First of course as my old friend Mark Twain observed, “There are three kinds of lies: lies, damned lies, and statistics.” (a quote he mistakenly attributed to Disraeli and the actual source of which remains unclear) In checking these statistics, I spoke with one consultant who told me, “you know, 85% of all statistics are made up on the spot.” When I asked the source for that imminently quotable remark, he replied, “I just made it up.”

So here’s some better statistics. First the definition of a “small firm” is not fixed. ILTA considers it a firm under 100 while the ABA sets the level at 50. And does that mean attorneys or all employees? Either way, the ABA says that solos and very small firms (2-9 attorneys) comprise the majority (more than 60%) of the legal profession.

In 2019, 63% of respondents of the ABA Legal Technology Survey Report, “Volume III: Law Office Technology” were solo and small firm attorneys (32% and 31%, respectively).

Of the attorneys responding, 26% were solo practitioners, 30%  at firms of 2-9 attorneys, 17% at firms of 10-49 attorneys,  5% at firms of 50-99 attorneys, 10% at firms of 100-499 attorneys, and 12% at firms of 500+. The largest practice area, based on billing, was litigation (27%), followed by estate planning (20%), and real estate transactions (16%).

But the percentage of those who have received eDiscovery requests increased to 70% in 2020. This percentage has continually grown over the last several years. Again, the percentage varies, from a high of 72% at large firms to only 52% at solos.

And the number of firms that report being involved in a case that required eDiscovery likewise varies with firm size. 73% of respondents in firms of 100+ versus only 29% of solos.

Forty-one percent of respondents reported they use no eDiscovery solution. Most lawyers at larger firms prefer an all-in-one solution to eDiscovery (45%), while smaller firms prefer a simple review solution. So over half of the firms said they DID use an eDiscovery solution.

But wait. There’s more.

The April 2021 Gartner Market Guide for E-Discovery Solutions report was just published. Available for download courtesy of Exterro at https://www.exterro.com/gartner-report-market-guide-for-e-discovery-solutions it has two telling statistics. First, 55% of eDiscovery product users in their survey were in firms under 100 (the ILTA small firm cutoff) and 29% were in firms under 50 (the ABA cutoff) which gives us a second source that runs counter to the Thomson Small Firm/Mid-Size Firm survey.

And finally, my own damnable statistics.  For a number of years, I did a yearly survey of eDiscovery use among Chicago lawyers for the Chicago Law Bulletin. The last survey we did was in 2015 and can be found at https://complexdiscovery.com/tom-oconnor-and-law-bulletin-publishing-company-of-chicago-release-8th-annual-ediscovery-survey/ .

The respondents to the survey represented a good cross-section of practitioners, with the majority being in private practice (68%), 16% in government practice and 5% in corporate practice. The remainder were in a variety of administrative, teaching or public service roles.

The distribution of responses was balanced with 40% solo attorneys. An increasing number of ediscovery specialists, including IT managers, practice managers, paralegals, claims examiners, law students and even document reviewers also responded to the survey. 50% of the respondents identified themselves as litigation specialists with specific areas of Family Law, Personal Injury and Insurance dominating their practice areas.

52% of the respondents reported a state court eDiscovery matter while 45% reported a federal case. 55% of the respondents were doing some form of eDiscovery inhouse (collection, forensics, reviews, production) with 60% doing the review in-house.  And the number using a web-based tool approached 50%, so roughly half and half for an internal solution versus the web.

Granted this was only once city and was six years ago. But still the results are striking compared to the Thomson survey.

Even more striking was the rebuke in all three of these reports to the statement that the only available tools are “stripped down versions of enterprise software, or legacy systems that are still using technology circa 2011.” With all due respect to the author of the reported blog, that’s an absurd statement.

In 2012, Bruce Olson and I wrote a book for the ABA called “Electronic Discovery for Small Cases”.  In it, we named several eDiscovery specific products including Digital War Room, NextPoint, Intella, QuickView Plus, LexBe Online.

Since then products like Everlaw, Logikcull and Relativity One have come to the forefront with transactional pricing. Cloud Nine bought Concordance and upgraded it. Exterro acquired Summation and merged it into a new product.  Even IPro, the company which employs the author of the Long Tail post, sells a product which they call discovery ][ Local and describe as designed for “today’s small legal teams”.

I’m sure I’m forgetting some other tools and for that, I apologize. The point is there are a host of small firm products, most of which offer some form of pricing based on a specific matter or a data size limit.

Again, with all due respect to Brad Blickstein, that’s not “good enough technology”, it’s very good technology at an affordable price. The lack of a formalized process to purchase a high-priced software product does not necessarily mean the smaller firms are not adopting technologies—it means that transactional availability of modern products fits their practice model.

I’ll be having an update to the ED for Small Cases book come out next month under the publishing auspices of Digital War Room. We’ll talk about these subjects in more detail but meanwhile, don’t be afraid to write me if you have questions.

Christy Burke Chats About Legal Marketing with Rachi and Tom

May 25, 2021

Missed the post last week about Rachi and Tom talking with @ChristyBurkePR about what it takes to become an expert legal technology marketer? From starting her own business to marketing at a legal tech company and then becoming one of the top legal marketing experts in the field.


Joy Heath Rush, CEO of ILTA, Chats with Tom O’Connor About ILTACON21

May 11, 2021

Joy tells Tom about the planning, preparation and last minute adjustments for the hybrid conference format of ILTACON21. Coming up in August at the Mandalay Bay in Las Vegas, there’s lot’s of changes but still the same old great educational content. For all the details listen in here!

May 10, 2021

For those of you who missed it last week, here is a link to the great discussion Rachi and I had with Dan Regard. Dan started in our crazy business about the same time as I did in the mid-80’s and now heads up IDS where he loves to tackle projects involving structured data and what he likes to call “fact crashing”.

Want to now what this is? Then buckle up and listen to our talk with Dan!

#legaltechnology #structureddata #RachiMessing

Need An Exchange Protocol Checklist? Here’s Some Suggestions.

May 5, 2021

Most people think an ESI exchange protocol is simply a load file that is automatically included with documents that you produce or receive. In actuality, the term means much more than that.

First and foremost, it’s the required result of a required process. FRCP 26(a)(1) requires initial disclosures and FRCP 26(f) dictates a “conference of the parties” (also known as the “meet and confer”) to discuss, among other things, including a requested format for production of documents. Opposing counsel can propose their own format for delivery and that’s where the ESI protocol comes in – it is designed to formalize the way in which the parties eventually agree to exchange their documents.

Second, it’s a way to resolve disputes before they happen, especially disputes regarding proportionality.  And given that there were 889 case law decisions involving proportionality disputes in 2020, which is even more than sanctions disputes, exchange protocols are an important tool.

Dorothea Brande, the respected New York writer and editor, once said of writing projects that “A problem clearly stated is a problem half solved.” Doug Austin of EDIscovery Today couched it in more compelling terms when he stated that the exchange protocol is “ … literally your “blueprint” for discovery.”  https://ipro.com/resources/articles/best-ways-to-improve-esi-protocols-in-discovery/

The premier question in developing a protocol is “what do you want to do?’ Are you dealing with your documents or a production from opposing counsel? Do you want to review for privilege, a key phrase or term or just general principles?  Decide that before you begin.

And before you DO begin, be sure that what you are doing and/or what your opponent has done meets the requirements of the rules. This is essential because the protocol eventually becomes entered as a court order

For a quick checklist of steps to take, here’s an article I wrote for my good friends at Digital War Room.


EDiscovery Channel Goes to the Archive for a Chat Between Gayle O’Connor and Craig Ball On the Sedona Conference Commentary on Social Media, 2nd Edition

April 20, 2021

Rachi is on sabbatical this week so I pulled up this old interview by two of my favorite people. It’s a discussion about the then pending Sedona Conference Primer on Social Media and I think it’s still relevant as social media has become an even bigger component of ESI in the intervening time.

Plus I just love hearing both of these people talk.

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