In the search for insight on key eDiscovery issues, the annual litigation trends survey published by Norton Rose Fulbright is unique in terms of its practical utility. The twelfth edition of this annual survey – published in September 2016 – features a number of interesting trends on issues such as litigation expenditures, litigation minimization framework, and the use of alternative fee arrangements.
Beyond these issues, the survey results on eDiscovery issues were particularly fascinating. Detailed below are some survey highlights, which include discovery of mobile device data, the increasing use of technology-assisted review, and cross-border discovery.
As we recently spotlighted, mobile device preservation and production issues are of particular concern to litigants and lawyers. 49% of the survey respondents – 606 in-house attorneys from companies headquartered in the North America (44%), the United Kingdom (16%), Australia (15%), Canada (14%), Europe (8%), and Asia (3%) – indicated that they were “required to preserve or collect data from a mobile device” over the previous 12 months. Not surprisingly, the greatest percentage (60%) of the respondents whose companies were “the most likely to have preserved/collected data from a mobile device” were based in the U.S. Regarding the particular mobile devices at issue, the report confirmed that 93% of respondents “preserved or collected data” from smartphones while 13% had to do so from “wearable technology.”
Growing Use of Technology-Assisted Review
There has been substantial debate over the past couple of years regarding whether clients are increasingly using technology-assisted review (TAR). The survey confirms that companies are in fact turning to TAR – defined in the report as “predictive coding or other data analytics” – in growing numbers. 60% of survey respondents indicated they are using TAR, up from 57% in 2015. More telling, however, is that those using TAR are doing so in more of their cases. 29% of enterprises are employing TAR in at least 50% of their disputes, a 5% increase from 2015. And while TAR is gaining traction in England and Wales, a far greater percentage is using TAR in the U.S. (66%) compared with the UK (46%).
Companies are apparently having to deal with a sharp increase in cross-border discovery. 41% of enterprises reported that they were “required to conduct cross-border discovery,” up from 35% in 2015. In addition, companies must now address cross-border discovery issues in more of their disputes, with 7% being forced to do so “in half or more of their matters.”
Nor are the difficulties arising from cross-border matters limited to discovery. Overlapping data protection regulations have further complicated the issues. 41% of surveyed companies report that they have been forced to “balance data protection regulations in one jurisdiction with discovery obligations in another jurisdiction.” That balancing act has been particularly challenging this past year for U.S. companies. This is because they have been compelled to navigate a patchwork of cross-border data protection rules after the European court of justice invalidated the U.S. / EU Safe Harbor framework last year. With the new “privacy shield” now in place, at least one layer of cross-border complexity may be simplified.
Adopting “Preventative Measures”
The report summarizes the general feeling among companies and counsel that eDiscovery is a “painful” exercise that is “costly to manage.” Nevertheless, enterprises should not feel powerless to address the issues. As the report explains, costs and risks can be reduced with the deployment of “greater controls.” This includes the eDiscovery cost reduction tips we recently spotlighted, together with what the report terms “preventative measures” such as information governance, which can help reduce the incidence and cost of litigation. We look forward to seeing how the adoption of these practices plays out over the next year as reported in Norton Rose Fulbright’s 2017 survey.