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2017 Litigation Trends Survey: Plateauing Disputes, Escalating Cyber Concerns

Dean Gonsowski

Among my favorite publications for the legal and e-discovery space is the litigation trends forecast published by then Norton Rose (before the 2013 Fulbright merger). Introduced in 2004, the Trends Survey is always chock full of useful insights paired with actual (and statistically significant) data that practitioners value. It’s a tool you could truly use to plan, particularly if you found a nexus between general litigation trends and e-discovery.

The 2017 Litigation Trends Annual Survey is no exception and is a must read. Norton Rose Fulbright (NRF) polled more than 300 corporate counsel—primarily general counsel—representing US-based organizations on disputes-related issues and concerns.

This year there are some notable trends that didn’t move and grow with the typical trajectory.

Changing Times are Changing Disputes

The first insight surrounds general litigation volumes. In past years, it was largely a truism that litigation volumes and regulatory inquires would increase—with obvious financial impacts on e-discovery (among other industries). The 2016 estimates offered compelling support for this understanding:

  • 24 percent of respondents believed the volume of disputes would increase in the year ahead versus only 13 percent anticipating a decrease
  • 97 percent of respondents perceived regulators to be more interventionist during the last 12 months

2017 appears to tell a different tale though, with disputes starting to plateau after a steady rise since 2010: “Volume of disputes shows signs of decline as more companies start to utilize preventative measures and early case resolution.”

Despite the overall flattening, certain types of litigation are in fact increasing, and for the ones that do, their cost and complexity likely has gone up as well:

One of the reasons that the disputes tide has stemmed is due to the use of “preventative measures,” such as increased training and new risk management processes.

Interestingly, early case resolution/evaluation “is one of the most successful means to avoid litigation;” just under two-thirds of respondents have implemented it, leading to its standing as the second most effective measure. This bodes well for software companies that have ECA tools and for practitioners that have been championing this approach for years.

Cybersecurity and Privacy Pressures

Despite the foregoing trends regarding disputes, the report’s headline (not surprisingly) surrounded information security and data privacy. Nearly two-thirds of those polled (63 percent) felt “more exposed to disputes in this area.”

Gerry Pecht, NRF’s Global Head of Dispute Resolution and Litigation, said:

“For large companies that work with massive amounts of sensitive personal data, data protection is an absolute imperative. A single cyber event has the potential to expose a business to class actions and serious reputational risk.”

To address these concerns, the Trends Survey recommends that companies focus on the following three areas to evaluate risk and readiness:

  • Target data
    • Prevalence of high value data and proprietary information
    • Sensitivity of information
  • Weak points
    • Operational vulnerabilities
    • Regular scrutiny
  • Scale of threat
    • Volume of prevalence of threats
    • Sophistication and aggressiveness of external threats

The respondents found that the “primary risk lies in the value of the data being held” and was particularly acute for regulated entities in the life sciences, healthcare, and financial sectors.

Cybersecurity concerns were bookended by similar data privacy concerns due to the impending General Data Protection Regulation (GDPR):

“Cybersecurity and data protection are increasingly dynamic risk areas, and with increasing scrutiny emerging from areas such as GDPR, there is little doubt that organizations will have to review and update their defenses constantly.”

It’s impossible to briefly summarize all the findings in the Trends Survey but these headlines are buttressed with plenty more compelling, underlying data. Organizations that want to properly assess and respond to these winds of change, would be well served to fully digest this excellent body of research.

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A former litigator/GC/AGC, Dean Gonsowski is an industry-recognized evangelist, thought leader, and speaker. Dean has a JD from the University of San Diego School of Law and a BS from the University of California, Santa Barbara. He has worked with companies around the e-discovery industry, including Relativity, and now serves as chief revenue officer of Active Navigation.