The legal landscape is now littered with parties–and their attorneys–who have been sanctioned by courts for electronic data discovery failures. Most of the litigation dealing with the loss of digital information addresses the failure of a party to preserve and collect the data after it was under a legal obligation to do so. The scope of that legal obligation is still not fully understood by many attorneys and their clients: it includes electronically stored information (ESI) held by third parties in many circumstances. Which circumstances? Consider the following scenarios.
Scenario 1: A global chemical and cleaning products company has some products manufactured by third-party suppliers. Some data concerning product formulation, manufacturing processes and quality control, testing and compliance resides with those contractors.
