by Philip Favro - Driven, Inc. on August 26, 2016
One of the lingering questions among e-discovery counsel and cognoscenti alike is whether enterprises and their lawyers are increasingly using analytical tools—technology that automatically organizes, classifies, and identifies trends amongst all types of data. This includes electronically stored information (ESI) involved in e-discovery, project management stats on information governance initiatives, and various other use cases.
While there is some question of how quickly these tools, including technology-assisted review (TAR), are gaining acceptance, the trends seem clear. An industry survey from 2015 suggested they are gaining steady traction among corporate legal teams—a group that helps drive change in the practice of law by influencing not just their businesses, but also the habits of the law firms who serve them.
Commissioned by the Coalition of Technology Resources for Lawyers (CTRL), the survey demonstrated that advanced analytics are an increasingly integral aspect of in-house legal departments.
The 2015 Legal Analytics Survey
According to the survey report, a majority of legal departments (56 percent) reported that they were using data analytics to address e-discovery obligations. While not totally surprising given that the legal profession has been doing e-discovery work for well over a decade now, the report confirms that data analytics have become a critical component for basic e-discovery processes.
More specifically, the report indicated that the top three uses for data analytics in e-discovery are culling (72.4 percent), early case assessment (72.4 percent), and relevancy review (71.1 percent). The report additionally reflected increasing reliance on analytics for review prioritization (64.5 percent) and fact finding (55.3 percent). Such a trend is noteworthy since it suggests that legal professionals are using analytics tools in a more intelligent and strategic fashion, such as identifying key documents in a particular matter rather than culling irrelevant materials.
Another key metric is the heavily reported use (56.6 percent) of analytics for privilege reviews. That trend implies that in-house legal departments are getting beyond the exclusive use of search terms and are turning to a variety of tools—including concept search, email threading, near-duplicate identification, and TAR—to more effectively isolate privileged content. While advanced analytics certainly won’t obviate the need to obtain orders under Federal Rule of Evidence 502(d), they may very well lessen the number of privileged documents inadvertently produced in discovery.
Beyond the realm of e-discovery, other common use cases involving analytics among in-house legal include legal matter management, information governance, risk assessment, contract review, and selection of outside counsel. While the survey results for each use case are fascinating, those surrounding legal matter management and information governance (IG) are particularly instructive on the nature and extent of how analytics tools are being used.
Regarding legal matter management, analytics are most frequently used to measure predicted versus actual spending, along with resource allocation and budgeting. This suggests that in-house legal teams—which have long been considered a corporate cost center—are increasingly relying on analytics to better track and maximize their limited resources.
For IG, more than 75 percent of respondents confirmed that they were using analytics to facilitate both “defensible disposition” and “compliance with records policies or other requirements.” Such a finding reveals that information governance programs are increasingly reliant on analytics to facilitate and ensure observance of IG policies.
Will the Use of Analytics Continue Trending Upward?
The 2015 report appears to confirm that analytics tools are here to stay. Seventy-one percent of legal departments indicated that their spending on analytics for e-discovery would either stay the same or increase next year.
The question now is whether that trend will continue—will the use of analytics continue to accelerate among in-house legal departments? To answer that question, CTRL has engaged the Information Governance Initiative (IGI) to conduct a 2016 version of the survey. We encourage you to take the survey, identify how your legal team is using advanced analytics, and discuss applicable use cases. After it closes this fall, check back here for new insights based on the results.
Philip Favro brings more than 15 years of experience to his position as a discovery and information governance consultant for Driven, Inc. Phil is a thought leader and a legal scholar on issues relating to the discovery process, the confluence of litigation and technology, and information governance. Phil also serves as the director of legal education for the Coalition of Technology Resources for Lawyers (CTRL) where he directs CTRL’s thought leadership programs.