Most larger companies are increasingly aware of the many problems that can be associated with the production of e-discovery in litigation. Among other things is the potential of spoliation sanctions against a company if electronic documents have been destroyed when the circumstances dictated that they should have been properly preserved due to anticipated litigation. Further still, general counsel may not consider their obligation to ensure the preservation of electronic documents maintained by third parties beyond their direct control.
A fairly recent decision by the U.S. District Court for the Southern District of New York should make in-house counsel rethink this issue. In GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., the court was faced with the question of whether the spoliation of electronic documents by a plaintiff’s third-party consultant could form the basis for sanctions against the plaintiff. The requested sanctions included the dismissal of the plaintiff’s complaint.