Feeling Constrained to Meet Your Discovery Obligations? You’re Not Alone.
To say that 2020 has been a challenging year is an understatement. The global COVID-19 pandemic has cost over 1.3 million lives worldwide and there’s no end in sight. And economic shutdowns and social distancing policies have affected economies all over the world. Those economic impacts have extended to the business of eDiscovery, even as litigation due to the pandemic and related economic crisis is rising.
Budgets are Constrained
Rob Robinson’s ComplexDiscovery blog is an online publication that highlights data and legal discovery insight and intelligence ranging from original research to aggregated news for use by business, information technology, and legal professionals. As part of that original research, “ComplexD” conducts surveys regarding various aspects of eDiscovery including pricing and predictive coding.
One survey that ComplexD conducts quarterly is its eDiscovery Business Confidence Survey, which surveys eDiscovery professionals across the spectrum (including respondents from Law Firms, Software and Service Providers, Consulting Firms and Corporations) regarding the confidence of individuals working in the eDiscovery ecosystem in the business of eDiscovery. The non-scientific survey has been conducted every quarter since 2016, so there have been twenty surveys to date.
Since the pandemic began, ComplexD has conducted three quarterly surveys – in April, July and October. Those surveys have reflected a significantly more pessimistic sentiment in eDiscovery business since the pandemic began. Here are two indicators of just how pessimistic that sentiment is and what is affecting eDiscovery business the most:
- Current Business: The average percentage of respondents that considered current business to be good over the last three surveys was 3%. Comparing to the average of the same three quarterly surveys in 2019 (which was 46.9%), the year-over-year (YOY) decline of respondents finding business to be good was 11.6%. Conversely, the average percentage of respondents that considered current business to be bad over the last three surveys was 26.1%. Comparing to the average of the same three quarterly surveys in 2019 (which was 5.8%), the YOY increase of respondents finding business to be bad was 20.3%!
- Factors Impacting eDiscovery Business: Each survey also asks respondents to select one factor (out of six choices) they feel will most impact the business of eDiscovery over the next six months. The average percentage of respondents over the last three surveys that selected Budgetary Constraints as the factor with the most impact was 2%. Comparing to the average of the same three quarterly surveys in 2019 (which was 23.9%), the YOY increase of respondents selecting Budgetary Constraints as the factor with the most impact was 28.3%!
From that, it seems obvious (and not surprising) that providers are finding that companies are more budget constrained than ever, at least compared to the last several years.
Litigation is Rising
Trends also indicate that litigation is rising significantly due to COVID-19 related claims and claims associated with the related economic crisis. By May, almost 800 COVID-19-related complaints had been filed in the US and that number rose drastically to 2,700 complaints by early June, according to Spilman Thomas & Battle PLLC (via JD Supra). An article in The National Law Review identified several areas where employers were expected to see increased litigation claims, including employment discrimination, safety violation, negligence, inadequate or non-existent written notices for layoffs and furloughs and unfair labor practice claims, among others. And The Washington Post reported 771 claims had been filed against hospitals and senior-living facilities, airlines and cruise lines, fitness chains and the entertainment industry related to the pandemic – as that was only as of May 1st.
Recommendations to Meet Your Discovery Obligations
With constrained budgets and increased litigation, the phrase “do more with less” has never been more appropriate. Here are two recommendations to help you meet your discovery obligations in these challenging times:
- Stay Informed on Latest Best Practices: There are more free webinars than ever and plenty of blogs (including this one) and other sites for eDiscovery best practices. Commit to at least attending 1-2 webinars per month and at least 5-15 minutes a day to read about ways to be more efficient and effective in your eDiscovery practices.
- Leverage Technology-Based Approaches to Make Workflows More Efficient: There has never been a better time to look for opportunities for improvement in your workflows. Proven advanced technology and techniques in data reduction and targeted data interrogation can help you identify critical information more quickly, resulting in cost-savings and reduced risk. And there are experts out there who can help your company maximize the benefit of the technology and techniques, so you don’t have to “go it alone”.
Staying informed on eDiscovery best practices and implementing technology-based approaches to help streamline your workflows can enable your company to manage the growing litigation workload more efficiently to stay within your constrained budgets. The phrase “that’s the way we’ve always done it” no longer works in today’s world.
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