The Custodian Who Won't Cooperate
You are outside counsel managing e-discovery for a defendant in a trade-secrets case. The key custodian is the company's former VP of Engineering, who now works for a competitor. He has been served with a litigation hold and asked to return company devices and provide his personal email and text messages relating to the alleged misappropriation. He has not responded to two emails and one phone call in 10 days. Your client's general counsel wants to 'just subpoena his phone carrier and move on.' Meanwhile, the plaintiff has begun producing documents suggesting the VP used a personal Gmail account and an encrypted messaging app. The case is in its early stages; no scheduling order yet. The VP's employment agreement includes a cooperation clause.
1. What are the immediate ethical and preservation obligations, and what should you do first?
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First, the duty to preserve is triggered and the VP is a key custodian. You cannot 'move on' - you must take reasonable, good-faith steps to secure the evidence. That means: (1) send a written, specific litigation hold to the VP (email + certified mail) documenting the obligation and the consequences, (2) notify the competitor-employer in writing of the hold and preservation duty (they may have independent obligations), (3) preserve what the client controls (company systems, backups, the VP's company email if still accessible), and (4) document every step.
Ethically, under Model Rule 3.4 and 4.4, you cannot direct the VP to destroy or conceal evidence, and you must not communicate with him in a way that violates his rights. The cooperation clause in his employment agreement is your leverage - invoke it formally. The subpoena-to-carrier idea is premature and likely futile (carriers rarely retain content), and pursuing it without first exhausting the cooperation clause looks like bad faith.
2. The GC asks whether you can just tell the VP's new employer to 'make him cooperate.' What do you advise?
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No - you cannot direct a non-party's employee to act, and doing so risks a Model Rule 4.2 problem (communicating with a represented person) and could be seen as improper pressure. What you can do: send a preservation notice to the new employer informing them that the VP is a custodian and that they have an independent duty to preserve any relevant data in their possession (including his new work devices and accounts, to the extent they contain the old company's information). That is a legitimate, documented step.
Separately, invoke the cooperation clause directly against the VP and, if he remains non-responsive, seek a court order compelling his cooperation or his deposition. Keep the pressure lawful and documented. Advise the GC that the goal is a clean record showing diligent, escalating efforts - that is what defeats a later spoliation or 'failure to preserve' argument.
3. The VP finally responds and says he 'already deleted' the Gmail messages. What now?
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Assess when he deleted and whether a duty had attached. If deletion occurred after he received the hold, that is potential spoliation and you must: (1) immediately preserve all remaining sources (his device, the encrypted app account, any backups, the new employer's systems), (2) issue a litigation hold reminder and document the timeline, (3) consider forensic recovery of the Gmail (Google may retain deleted messages for a period; check), and (4) evaluate whether to self-disclose to the court and opposing counsel.
Under FRCP 37(e), sanctions for lost ESI require prejudice and, for the harshest measures, intent to deprive. Your job now is damage control: show you acted promptly and in good faith once you learned of the deletion. Do not conceal it - concealment converts a defensible loss into an ethics violation. Advise the GC candidly and document the advice.