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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.

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