The recent case of Danny Lynn Electrical v. Veolia Es Solid Waste (2012 WL 786843, March 9, 2012) showcases the value of an information archive from a compliance and eDiscovery perspective. In Danny Lynn Electrical the plaintiff sought sanctions against the defendant for the spoliation of electronic evidence, including the usual blend of monetary sanctions, adverse evidentiary inferences and the striking of affirmative defenses. Plaintiff argued that the defendant “blatantly disregarded their duty to preserve electronic information” by failing to implement an effective legal hold policy and deleting email after litigation began. In rejecting plaintiff’s claims, the court concluded that sanctions on the basis of spoliation of evidence were not warranted.
The court, in a harbinger of good things to come for the defendant, questioned “whether any spoliation of electronic evidence has actually occurred.” In finding that there wasn’t any spoliation, the court relied heavily on the fact that the defendant had recently deployed an email archive:
“[T]here is no evidence that any of the alleged emails, with the exception of the few that were accidentally deleted due to a computer virus or other unforseen [sic] circumstance, were permanently deleted from the defendants’ computer system. … VESNA began using a new software system which archives all emails on the VESNA network. Therefore, it is clear to the court that the defendant preserved email from its custodians in a backup or archive system."
In combination with the deployed archive, the court also noted that plaintiff’s arguments were devoid of substantive evidence to support their spoliation claims:
“In order to impose sanctions against the defendants, this court ‘would have to substitute Plaintiffs’ speculation for actual proof that critical evidence was in fact lost or destroyed.”
The rejection of plaintiff’s spoliation claims in Danny Lynn Electrical reinforces the long held notion that information archives[i] have tremendous utility beyond the data management/minimization benefits that were the early drivers of archive adoption. This prophylactic, information governance benefit is particularly useful when the archive goes beyond email to additionally capture loose files, social media and other unstructured content.
As we said in 2011, organizations are already finding that other sources of electronically stored information (ESI) like documents/files and unstructured data are rivaling email in importance for eDiscovery requests, and this trend shows no signs of abating, particularly for regulated industries. This increasingly heterogeneous mix of ESI certainly results in challenges for many organizations, with some unlucky ones getting sanctioned (unlike the defendant Danny Lynn Electrical ) because they ignored these emerging data types.
The good news is that modern day archives have the ability to manage (preserve, categorize, defensibly delete, etc.) ESI from a wide range of sources beyond just email. Given cases like Danny Lynn Electrical it’s increasingly a layup to build the business case for an archive project (assuming your organization doesn’t have one deployed already). Further pushing the archiving play to the top of the stack is the ability to deploy in the cloud context, in addition to traditional on premise deployments.
The Danny Lynn Electrical case also shows how an upstream, proactive information governance program can have an impact in the downstream, reactive eDiscovery context. It is the linking of the yin and yang of the proactive and reactive concepts where an end to end paradigm starts to fulfill the long anticipated destiny of true information governance. As the explosion of data continues to mushroom unabated, it’s only this type of holistic information management regime that will keep eDiscovery chaos at bay.