It is time for organizations to heed the calls to take a proactive position on data management and preservation. While the sirens have been wailing for a number of years about the risks of not putting in place a comprehensive data management solution, too many organizations have failed to heed these warnings. Now a recent landmark opinion has dramatically altered the data management and preservation landscape by making it a necessity for organizations to implement a comprehensive, singular data management solution like CommVault® Simpana®.
Prior to January 15, 2010, when this opinion was penned by the Honorable Shira A. Scheindlin in the case of the Pension Comm Of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, it could be argued that organizations lacked any clear direction as to how a court might apply terms such as “negligence”, “gross negligence” or “willfulness in the discovery context” to a court case in which they were involved. Judge Scheindlin states as much in her opinion when she writes,
“…I have found no clear definition of these terms in the context of discovery misconduct.”
Now for the first time thanks to this 87 page opinion penned by Judge Scheindlin, this ambiguity starts to dissipate. Shannon Smith, an attorney and Archiving and eDiscovery Specialist with CommVault Systems, states this in regards to Scheindlin’s opinion:
“She (Scheindlin) issued such a lengthy opinion because litigants are still failing to heed her call in previous opinions regarding the importance of preservation. In this particular opinion she goes the extra step of providing a very detailed framework for the standard of care that is expected of litigants (something that has been lacking until now). Although she is just one of a handful of respected jurists on this topic, it is very likely that other federal judges will leverage this standard of care going forward.“
This level of guidance from the courts has been sorely needed and sought after by organizations for some time. Simply put, they need this level of guidance as to what the courts actually expect them to produce and adhere to from an eDiscovery and preservation perspective when they go to court. Otherwise the type and scope of the data management and preservation platform that they do put in place could be for naught if it fails to meet the court’s expectations that have been rather nebulous and subjective until now.
Judge Scheindlin’s detailed opinion sets the context for how organizations should proceed in terms of selecting and evaluating the appropriate software that meet the demands of the court. This opinion enables them to put an appropriate framework in place so they can have a reasonable level of confidence of meeting the court’s expectations.
However Judge Scheindlin’s opinion does more than just provide guidelines as best practices for what to do. It also comes with a stiff warning for both defendants and plaintiffs that fail to do so. Smith goes on to say in her thoughts about this opinion:
“Because we are dealing with a plaintiff here rather than a defendant, the failure to preserve was offensive to Scheindlin.
She doesn’t state it specifically but if a party is going to leverage the court system to pursue damages against another party, they should, at a minimum, have made an effort on their end to have their ducks aligned. I think that Scheindlin wants to emphasize that preservation obligations begin EARLY, especially for plaintiffs.“
The momentum around this opinion has been building significantly over the last 12 months in the whole area of preservation driven in part by planned and forthcoming updates to the Federal Rules of Civil Procedure (FRCP). The ability to search for information and the ability to preserve it in a form that holds up under legal scrutiny remains a large challenge for many organizations that have lacked the impetus to take action because of a lack of clarity on this matter from the courts as to how best proceed.
This opinion by Judge Scheindlin is a key piece of the jigsaw puzzle that brings it all together for organizations. They now have the motivation and framework to select an appropriate solution while removing “best faith effort” arguments on the sides of both defendants and plaintiffs. This opinion defines what those “best faith efforts” should look like, what courts can reasonably expect companies to deliver and warns them what happens if they do not.
The good news is that software such as CommVault Simpana is already available that meets these now newly defined data management, eDiscovery and data preservation demands that the courts have just thrust upon every organization. CommVault Simpana enables organizations to deploy a single strategy that can manage and perform archiving, backup, eDiscovery, preservation, and search from a single web console. Further, Simpana acts as an enabler by providing companies a way to centrally manage their data in a controlled manner without negatively impacting other parts of the organization either financially or operationally.
The legal sirens have stopped wailing as the requirements for preservation are now upon us. Existing techniques of reactive eDiscovery and “best faith efforts” no longer work and organizations that cling to these philosophies are about to find themselves confronting unsympathetic judges who are more willing to deal harshly with those that have not complied.
Courts are no longer naïve about what today’s technologies can do and are aware that solutions do exist that enable proactive data management, eDiscovery and preservation that can meet these new standards that they have just set forth with sanctions waiting for those that fail to comply. This is why this recent ruling acts as a point of demarcation between the past and future of data management. It highlights what is now required of organizations and why they must pursue it with solutions like CommVault Simpana poised to swiftly address them.