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.

#legaltechnology#marketing#ediscovery#innovation


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.

https://www.digitalwarroom.com/blog/exchange-protocol-checklist


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.


Marketing Maven Maribel Rivera Chats with Rachi and Tom

March 1, 2021

If you missed it last week, Rachi and I were delighted to speak with one of our favorite people in the legal profession, the one and only Maribel Rivera! Maribel told us how she was introduced to the world of marketing, her first job in the legal profession and dealing with resistance to her being a female with no degree in marketing.

She goes on to explain how that experience led her to begin helping women in todays market to overcome the same obstacles both in an institutional manner as a member of numerous organizations such as Women in eDiscovery and also as a personal mentor.

She alos mentions how along the way she bonded with another marketer (shoe lover) who had experienced the same sort of resistance when entering the legal field. See if you can guess who that might be!!

Click on the link below to listen to this great conversation!


Register Now for the University of Florida Levin College of Law E-Discovery Conference … At No Cost!!

February 19, 2021

The 8th Annual University of Florida Levin College of Law E-Discovery Conference is less than a month away and the full-day conference is completely online and free for all attendees.

This year they are various topics including:
            The initial assessment process
            Collaboration and negotiation strategies
            Collection challenges from new devices & data sources
            Basic and advanced search techniques
            Maximizing document review speeds and accuracy.

In addition the renowned judicial panel will be joined by an eDiscovery case law panel, and a panel analyzing the eDiscovery impact of rapidly expanding national and international privacy regulations.

I’ll be speaking along with, among others, Mary Mack, Joy Murao, Doug Austin, Craig Ball, George Socha, David Horrigan, Ariana Tadler and renowned Cajun technologist Dan Regard.

These national and international experts will examine strategies implementing practical and effective eDiscovery for your litigation matters. The focus is work smarter, not harder and these are the folks to make that happen.

CLE credits available for many states including general AND ethics credit for Florida bar members.

For more info and to register see https://ufediscoveryconference.com/see  or register directly here at https://ufl.zoom.us/meeting/register/tJUqfuCrqTsrH91qGPSt66u6qkeaWJZjIgye


EDiscovery Day with the San Diego ESI Forum: Joy Murao, Doug Austin & John Ellis Join Tom O’Connor In A Wide Ranging Year End Review

November 25, 2020


Herb Roitblat Joins Rachi and Tom on the eDiscovery Channel.

September 28, 2020

Rachi and Tom have a great discussion this week with Herb Roitblat, chief data scientist at Mimecast. Herb discusses how he went from being a professor working with dolphins at the University of Hawaii to the eDiscovery profession. He shares his thoughts on teaching, machine learning and AI as well as offering his take on where we are headed next in the fields of computer learning and searching ESI.


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