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.