Survey: lawsuits down, data-saving up.

• Author: Swartz, Nikki
• Position: UP FRONT: News, Trends & Analysis - Survey

The recent Litigation Trends Survey from international law firm Fulbright & Jaworski LLP reveals that while internal investigations and lawsuits have dropped slightly, one-third of U.S. businesses still face at least 25 lawsuits, and 18 percent are defending more than 100 cases domestically.

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.

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