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

If you’re reading an e-discovery blog article, chances are we don’t need to revisit the standard arguments about why e-discovery matters:

• The ever-expanding volume of structured and unstructured data in business
• The scale of civil litigation faced by organizations globally
• The significant portion of litigation costs tied to the discovery process

These realities point to a few core truths: at its heart, effective information governance and e-discovery are about mastering data—controlling it in ways that minimize risk, improve efficiency, and drive better business outcomes.

So, perhaps that’s just a long way of saying that many e-discovery professionals are (or become) data enthusiasts by nature.

That’s exactly why we’re launching a bi-weekly column on the E-Discovery Breakdown, where we examine key e-discovery statistics and unpack what they really mean.

For this inaugural column, we turn to one of the leading reports on corporate litigation: Norton Rose Fulbright’s 2017 Litigation Trends Annual Survey. In their discovery section, respondents were asked:

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

The results are striking.

In a recent Exterro webcast on in-place preservation, 62% of attendees said their biggest concern was the risk of spoliation from custodian self-preservation. Yet, according to the survey, 47% of organizations rely on custodian self-preservation more than 75% of the time.

This contradiction is hard to ignore.

Economist Paul Krugman has written about “zombie doctrines”—ideas that persist despite being widely discredited. The comparison feels appropriate here. Despite well-known risks, self-preservation continues to be widely used as a primary method for preserving electronically stored information (ESI).

There is some reassurance in the fact that roughly one-third of respondents rely on self-preservation less than 25% of the time. But that optimism may be misplaced.

The survey also asked a follow-up question:

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

While respondents could select multiple answers, the results revealed another concerning trend: 77% of those not relying on self-preservation still use a “collect everything” approach at least some of the time.

This approach comes with clear drawbacks:

• Increased storage costs
• Higher document review expenses
• Greater exposure to risk in unrelated legal matters

It’s true that many organizations (68%) are leveraging in-place preservation technology. But this raises an important question: if in-place preservation can achieve the same goal—preserving relevant ESI—without the downsides of over-collection, when is a “collect everything” strategy actually justified?

That remains an open question.

If you’re looking to eliminate outdated or inefficient e-discovery preservation practices in your organization, consider exploring a comprehensive guide to modern preservation strategies.