But those aren’t our documents: The source of third party discovery obligations

The part of a six part series over a company’s obligation to notify a third party to preserve and produce documents

Imagine this scenario: You have scrupulously followed your obligations to preserve and produce your company’s documents despite the business unit’s grousing. Plaintiff’s counsel now insists that you had an obligation to preserve — and have an obligation to produce — the documents created and maintained by the company’s marketing consultant. You confidently instruct outside counsel to refuse (thinking that this firm may not be aggressive enough to represent you). After all, this is a third party, and you will never be ordered to gather and produce their documents.

As outside counsel warned, plaintiff moves to compel and seeks sanctions for spoliation. In this hypothetical world, your judge is an e-discovery maven. She believes that the American justice system is founded on broad-ranging disclosure, and the failure to issue a proper litigation hold notice to all key players is gross negligence per se.

Contributing Author

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Sandra C. McCallion

Sandra C. McCallion is a partner at Cohen & Gresser LLP and a member of the firm’s Litigation and Arbitration and Intellectual Property and Technology...

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Contributing Author

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Melanie A. Grossman

Melanie A. Grossman is an associate in Cohen & Gresser LLP’s Litigation and Arbitration practice group.

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