Examining E-Discovery Statistics: The Zombie Doctrine of Self-Preservation

Created on March 16, 2018

Legal GRC Market Analyst at Exterro

If you’re here, reading an e-discovery blog article, chances are we don’t have to go through the standard argument about the importance of e-discovery:

  • The ever-expanding amount of structured and unstructured data in the world and in business
  • The volume of civil litigation faced by enterprises in the US and the world
  • The proportion of costs of civil litigation that are tied up in the discovery process

These facts roll up into some basic truths about e-discovery. At its heart, effective information governance and e-discovery strategies are about mastering data, controlling it in ways that minimize risk, increase efficiency, and promote favorable business outcomes.

So, perhaps that introduction is just a long-winded way to say that odds are good that e-discovery professionals are often (or perhaps become by virtue of their vocation) data nerds.

That’s why we’re starting a bi-weekly column on the E-Discovery Breakdown looking at e-discovery statistics and unpacking them.

For our inaugural column, I turned to one of the (if not the) leading reports on corporate litigation: Norton Rose Fulbright’s 2017 Litigation Trends Annual Survey. Buried in their section on discovery, they asked respondents:

In the past 12 months, for what percentage of your matters have you primarily relied upon self-preservation?

The data looked like this (bold percentages indicate the responses to the question):

Thinking back to a statistic (admittedly with a smaller sample size) from a recent Exterro webcast on in-place preservation, I found this statistic shocking. In that webcast, 62% of the attendees most feared the spoliation risks associated with custodian self-preservation… yet in a survey of corporate counsel, 47% of organizations are relying on custodian self-preservation more than ¾ of the time

Paul Krugman occasionally writes about "zombie doctrines" (specifically supply-side economics) that survive despite being disproven. The similarity, in my mind, is clear: despite widespread concerns over spoliation, self-preservation shambles on as a primary means of preserving ESI. 

Knowing the benefits and power of in-place preservation, I took some consolation in the 1/3 of the respondents who relied on self-preservation less than ¼ of the time.

But perhaps that consolation is misplaced. The survey asked a follow up question:

If you do not rely on self-preservation, how do you preserve potentially relevant documents?

It’s worth noting that respondents could choose more than one answer, and hopefully these various methods weren’t used all the time, but 77% of respondents who weren’t relying on self-preservation were, at least some of the time, employing a “collect everything” approach to preservation, an approach which has its own obvious drawbacks:   

  • Increased storage costs
  • Increased document review costs
  • Potential for liability in other legal matters

Clearly many organizations (68%) are making use of in-place preservation technology, but what criteria would justify using a collect everything approach when IPP can accomplish the same goal (preservation of relevant ESI) without exposing them to the substantial drawbacks of collecting everything. (If you have the (or an) answer, please get in touch, as I’d like to understand.)

If you want help killing off undead e-discovery preservation pratices in your legal department, download Exterro’s Comprehensive Guide to E-Discovery Preservation.