Litigation Trends: Privacy, Data Protection & E-Disclosure

October 17, 2011

The regular The Fulbright & Jaworski 2011 Litigation Trends Survey is an independent survey of senior corporate counsel. Now in its eighth year, the report surveyed 405 in-house lawyers (from a wide range of industry sectors) and includes the material on privacy, data protection and e-disclosure displayed below.

The full 2011 Litigation Trends Survey is available for download at:

‘Businesses are increasingly required to search employees’ social media accounts and mobile devices in the context of disputes. Over a quarter (27%) of UK companies (compared to 18% in 2009) have been required to produce electronically stored information from a social media site for e-disclosure purposes during the past 12 months. This is perhaps due to the notable rise in the proportion of companies that have no restrictions on website usage, including social media websites, up from one third (37%) of UK respondents in 2009 to 43% this year. Similarly, 36% of UK respondents have had to preserve and collect data from an employee mobile device, such as a BlackBerry or other smartphone, for litigation or as part of an investigation.

Businesses may also face further issues in connection with new forms of data storage including ‘cloud computing’. One in three (30%) UK respondents reported utilising cloud computing. One half (50%) of UK respondents using cloud computing have already reported having to preserve and/or collect data from the cloud in connection with actual or threatened litigation, disputes or investigations. More than one in ten (13%) UK respondents not yet using the cloud expressed an intention to move software or data to the cloud in the next 12 months. Worryingly, some 16% of all respondents did not know whether their companies stored data in the ‘cloud’.

The impact of electronic media and privacy and data protection rules continues to give rise to issues for respondents involved in disputes. One in four (25%) of all respondents (and 22% of UK respondents) encountered privacy and data protection issues in litigation, disputes or investigations over the past 12 months, and 30% of the largest companies reported having encountered such difficulties. In particular, UK respondents cited issues arising in connection with the searching and collection of data from company equipment (62%), the searching and collection of data from personal equipment (62%) and the jurisdiction in which document processing takes place (42%).

More positively, significant numbers of participants have become more co-operative in their dealings with opposing lawyers in relation to e-disclosure issues. 34% of all respondents (and the same proportion of US and UK respondents) reported having made a concerted effort in this regard.

Adopting a more co-operative approach, and seeking a proportionate approach to e-disclosure, appears to reap rewards. Eight in ten (80%) UK respondents considered that a more co-operative approach to e-disclosure had led to lower litigation costs. Almost three quarters (72%) of UK respondents who sought a more proportionate approach to e-disclosure through the courts recorded a successful outcome.’