"For every eDiscovery action, there is an equal and opposite reaction."
— Sir Isaac Newton
As I've mentioned before, my litigation hold letter – that you see over on the right sidebar – is still the most popular link on the blog (next to the actual posts, that is…). I've also provided this template to attendees of my presentations. A question comes up regularly:
"If we send out a letter like that, our adversary will simply replace their name with ours and send it right back to us. We don't want that to happen!"
It's a good point. And as I've also mentioned before, what's good for you may also be good for your adversary. Furthermore, there's absolutely no fault in thinking about this strategically, for example, keeping your clients' advantages/disadvantages in mind when you craft your demands and responses (which, hopefully, you're doing anyway).
There are times when you want everything but the kitchen sink, but sometimes, the sink itself will do nicely. After all, if both sides produce a gargantuan amount of product, somebody's going to have to review it – and pay for it.
Be careful what you wish for in litigation; you might get it – and get nothing.
An adversary may produce reams of product, the sole purpose of which is to either make it next to impossible to find relevant needles in the document haystack, or worse, obfuscate the fact that they didn't produce relevant documents at all. Oracle's Larry Ellison knows a bit about this [In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010)].
That's why my template is meant only as a guide. It may be appropriate to issue a letter that simply says, "You're on notice and we expect you to preserve relevant data." And here's the other elephant in the room to consider; are you absolutely certain that your client is completely forthcoming about their own data? If not, we already know who'll be on the hook for it.
As for attorneys who are complicit in assisting their clients with 'hiding the football'? As they said in the movie, Airplane, "…they bought their tickets, they knew what they were getting into. I say, let 'em crash!"
Huh? Wrong Newton? Don't look at me. Go back and redo your keyword & concept searches!