Summary

This report provides publicly available data on the use of eDiscovery in legal cases along with an overview of a few factors that affect when eDiscovery is chosen and utilized.

 

Creative Solutions

• Information pertaining to family law and eDiscovery data usage was limited in the public domain.
• Therefore, we provided helpful findings that detail the most relevant information surrounding eDiscovery used in law.
• Please refer to the Research Strategy for additional information surrounding the research process.

Complete Findings

Data on eDiscovery Usage Rates

• A 2010 survey conducted by the American Academy of Matrimonial Lawyers revealed that 81% of leading divorce attorneys in the United States observed a rise in cases utilizing social media evidence in the past five years. Additionally, 65% of these attorneys identified Facebook as the predominant source of such online evidence.
• Moving forward 12 years to 2022, 81% of family law attorneys in general noted that evidence discovered on social media platforms was valuable enough to present in court.
• In family law, the most sought-after information is communications such as calls, emails, text messages, and third-party messaging services from services like Facebook and WhatsApp. The second most popular evidence is internet browser history.
• In North America, 63% of professionals are placing emphasis on the eDiscovery market.
• A 2023 State of Law Firm Industry report notes that AI-powered eDiscovery technology is being considered by numerous attorneys. Of the surveyed law professionals, 69% stated that they use AI-powered eDiscovery technology for any form of civil litigation. This includes the classification of documents and "technology-assisted review".
• An astounding 80% of law firm professionals feel that AI-driven eDiscovery technologies can assist their practices in lowering costs, reducing the time to query documents, and improving overall operational efficiency.
•  95% of legal professionals anticipate cloud-based e-discovery to soon become the industry standard.
• An older resource (2015), highlights that 97% of the American Academy of Matrimonial Lawyers have seen an increase of divorce evidence being gathered from smartphones. The majority of this information came from social media profiles like Facebook (41%), Twitter (17%), and Instagram (16%).

Key Factors In Deciding to Use eDiscovery

• The scope of e-discovery depends on the jurisdiction. Federal and some state courts require parties to address e-discovery, including identifying electronically stored information (ESI) sources, during initial conferences. Even without court mandates, parties often negotiate e-discovery protocols covering search terms, data collection, and production formats. Competent representation requires lawyers to understand clients' systems and data to effectively negotiate e-discovery.
• The rise of ESI requires lawyers to assess e-discovery costs when producing electronic documents. Under Federal Rule 26(b)(1), lawyers must understand the client's cost and burden of responding to requests to make proportionality objections. Without this knowledge, lawyers may waive valid proportionality objections, resulting in unnecessary client expense for producing ESI.
• Lawyers must take precautions to avoid inadvertent disclosure of privileged information during e-discovery, as required by ABA Model Rule 1.6. This duty becomes increasingly difficult with the growth of ESI sources.
• In Maryland, attorneys handling child abuse cases find it difficult to wade through the enormous amount of documentation. Ada Hutsten, a paralegal, notes that they might have 4,000 documents that need to be reviewed 200 times for one specific issue and because of this, they will never get to 100% of everything. Using eDiscovery tools allows the search to be much more efficient.
• In order to detect potential child abuse situations from videos and photographs, researchers from the University of Rhode Island have developed technology utilizing machine learning/vision. This technology can analyze media in real time for child abuse imagery. Even live video feeds and be processed. The technology makes it possible to analyze vast amounts of video and images in an unprecedented amount of time.

 

Source

 

Research Strategy

Next Steps