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Examining E-Discovery Statistics: 3 Ways Mid-Market Companies Can Catch Up with Larger Enterprises

Created on March 15, 2019


E-Discovery Market Analyst at Exterro

Last September, Exterro and EDRM at Duke Law created the E-Discovery Maturity Quiz, a 20-question self-assessment that allows organizations to see how mature their e-discovery processes are compared to best practices. The assessment helps organizations evaluate the people, processes, and technology they have in place to conduct necessary tasks across the EDRM, including questions on:

  • Information Governance
  • Identification
  • Processing
  • Review and Analysis
  • Production
  • Personnel
  • Matter Closing

With over 200 responses, the anonymous data gathered by the quiz provides some great insight into the maturity of e-discovery operations at organizations of differing sizes and in a variety of industries. Exterro has gathered some of these insights into its recent report, E-Discovery by the Numbers, which can help you understand where your organization fits in the spectrum of e-discovery maturity.

One of the interesting takeaways in Exterro’s most recent In-House Benchmarking Report, produced in partnership with ACEDS, was that innovations in e-discovery technology and the spread of best practices meant that smaller organizations had the tools necessary to bring most e-discovery operations in-house. As Mary Mack, Executive Director of ACEDS explained in her introduction to the report, “You don’t need a large team to provide litigation services effectively.” (As an aside, congratulations to Mary on her being named a Stellar Woman in E-Discovery last week!)

But if that report showed that smaller organizations were making progress, then this recent one identified some remaining opportunities for smaller organizations to improve their e-discovery operations. Here are the three that demand the most attention.

Have a plan to collect from employees’ BYOD devices.

It’s fairly safe to say that organizations need a plan for collecting data from employee-owned devices—primarily mobile phones (but perhaps even computers). A recent Forbes article cited the following figures:

  • 60% of employees use smartphones for work… and 31% want one for that reason
  • BYOD policies at companies that favor them save $350 per year per employee
  • Using portable devices saves employees almost an hour a day and increases productivity by 34%

Suffice it to say, the BYOD trend, which has been gaining momentum for years, isn’t going anywhere. People are using their personal devices for work, and it’s a win-win for organizations and employees. But that means that data on those devices is discoverable.

A significant majority of organizations over 10,000 employees has come to terms with this. According to the quiz results, 69% of them have policies in place to collect from BYOD devices. However, smaller organizations are lagging behind, with only 53% of organizations in the 1,000 – 10,000 range having those capabilities. Less than half (49%) of companies with fewer than 1,000 have that capability as well.

Include contractors and vendors in legal hold notifications.

Recent case law, including Ronnie Van Zant, Inc. v. Artimus Pyle (S.D.N.Y. Aug. 28, 2017) has made it clear that organizations may be required to produce relevant data not just from employees, but from third parties including contractors and vendors. While over 90% of all responding organizations could identify, preserve, and collect from employees, mid-market companies (of less than 10,000 employees) lagged behind enterprises over 10,000 employees in their ability to do identify, preserve, and collect data from contractors (60% vs. 78%) and vendors (55% vs. 68%).

Focus on the left-side of the EDRM.

The standard wisdom for organizations bringing e-discovery in-house has been to start on the left side of the EDRM framework, with information governance and identification/preservation/collection. With the exception of matter closing (which may be a more administrative task than technical anyway), enterprises assess themselves as strongest in these two areas; after all, they are the foundation upon which the remaining e-discovery processes rest. However, it is in these areas where smaller organizations lag the furthest behind enterprises. You can see the results in the table below.

Org. Size

Information Governance

Identification/Preservation/Collection

> 10,000

3.99

4.16

1,000 – 10,000

3.35

3.20

< 1,000

3.08

3.05

These are the areas where smaller organizations can and should make the most progress. Preserving broadly and collecting narrowly is an e-discovery best practice that truly can give organizations the best of both worlds. Strong preservation policies and procedures ensure defensibility, while collecting narrowly helps reduce costs of processing, hosting, and reviewing documents. And, in the event of additional discovery requirements, teams can return to the preserved data and collect, process, and produce more as needed.

Of course, the full report on E-Discovery by the Numbers contains even more valuable insights on overall e-discovery maturity and maturity by industry, so download it today!