Survey: lawsuits down, data-saving up.
Based on interviews with in-house counsel at 253 major U.S. corporations and 50 from U.K. law departments, 17 percent of respondents said their companies had escaped the past year without having to defend a single new lawsuit, up from only 11 percent in 2005-06.
Government regulators don't appear to be as threatening, either, as 48 percent of companies reported some regulatory proceedings brought against them in the past 12 months, down more than 4 percent from a year ago. Internal investigations fell even more sharply. Fifty-four percent confirmed launching a company probe in the past year--a decline from 2006, when 63 percent of counsel reported initiating an investigation. By contrast, the survey said U.K. companies have experienced significant increases in both categories.
The Fulbright survey, the largest study of its kind, takes a macro look at U.S. and U.K. litigation and arbitration issues, covering such topics as internal investigations, electronic discovery and records retention, and average settlements. Other findings include:
* E-discovery: More than 70 percent of counsel said e-discovery issues "rarely" or "never" figured in their litigation matters, but 13 percent of billion-dollar firms said it plays a frequent role; 18 percent reported that e-discovery guidelines have eased their litigation issues, while 27 percent said the rules have actually made their litigation lives more difficult.
* Records retention: The average business said it retains documents for just two to three months, and only 14 percent said they back up for one year or longer. The survey found that not one firm earning less than $100 million maintains a backup threshold of one year or longer, which could prove costly in the event of a court-ordered document request. On the bright side, 89 percent of in-house counsel said their companies now have procedures to ensure preservation of all data that may relate to a legal or regulatory action. For billion-dollar companies, 98 percent of respondents said they had litigation hold policies. Also, 81 percent of U.S. companies said they had reviewed their retention policies over the previous 12 months.
* Instant messaging: Fifty-three percent of respondents said employees use IM, while the rate among billion-dollar firms was 70 percent. Almost 30 percent of all respondents said their firms retain the messages as routine policy or in certain cases; 40 percent said billion-dollar firms retain IMs. While many companies may archive IMs for only a month at the most, 43 percent keep them for two months or longer, including 15 percent that hold on to them for at least a year (25 percent among large companies).
* Voicemail: Forty percent of in-house counsel said they have a retention policy for employee voice messages. Most of the messages are saved for a month or less, but 31 percent of companies store voicemail for at least two months, including 9 percent with a one-year or longer hold policy.
* E-mail: Thirty-seven percent of survey respondents said they allow employees to access outside e-mail accounts using company-issued computers; billion-dollar companies allowed this 44 percent of the time. Three-fourths, or 74 percent, let employees access the corporate network from their home computers.
* Privacy policies: Only 39 percent of in-house counsel said their firms have a fun-time privacy officer, and a surprising 60 percent admitted to having no current plans to hire one.
States with E-Discovery Rules
Amendments to the Federal Rules of Civil Procedure became effective December 1, 2006, mandating rules for discovery of electronic evidence in federal courts. But U.S. states are adopting their own rules to address discovery in state and local court cases. The following states have passed e-discovery laws (with the year their law became effective in parenthesis):
* Arizona (2008)
* Idaho (2006)
* New Jersey (2006)
* Indiana (2007)
* Minnesota (2007)
* New Hampshire (2007)
States that have proposed rules:
States studying the issue:
Source: The National Law Journal
To access the full survey results, go to www.fulbright.com/litigationtrends.