There are typically volumes of documents and extensive evidence involved in commercial litigation. The discovery process is meant to ensure transparency in the exchange of information and prevent trial by ambush. However, this phase of litigation isn’t only a procedural requirement — it can make or break your business lawsuit. Discovery can expose inconsistencies, reveal damaging information, and help an attorney develop their legal strategy in the case.
What is Discovery?
Discovery is the phase of litigation during which information is requested and exchanged. The evidence obtained during this process can help each party build their strategy, understand the other side’s position, and prepare for trial. There are several discovery tools available in business litigation, including the following:
- Interrogatories — Interrogatories are written questions that must be answered under oath.
- Depositions — Depositions are a discovery tool that allows each side to ask the other side or a witness questions to gather facts.
- Requests for production — Requests for production can be used to ask for documents, electronically stored data, or tangible evidence.
- Requests for admission — Requests for admission ask a party to admit or deny each statement purported in the document, under oath.
- Subpoenas — A subpoena is a court order that compels a party or third party to produce documents, records, or physical evidence.
A wide range of evidence may be sought in a commercial matter, including emails, documents, electronically stored information (ESI), financial records, metadata, witness testimony, video footage, company records, internal reports, and physical evidence. However, the discovery requested must be relevant to the claims or defenses in the lawsuit.
How Can Discovery Shape Your Business Lawsuit?
Discovery is crucial to help each party uncover the facts they will need to develop an effective strategy in the case. Notably, the evidence obtained in discovery can significantly shape how a case proceeds. Discovery can reveal vulnerabilities, substantiate or weaken claims, and increase a party’s bargaining power. It can also uncover issues with a party’s credibility, allow an attorney to evaluate how a witness would testify at trial, and minimize surprises in the courtroom.
Once both sides have a solid understanding of the other’s strengths and weaknesses, they will be better positioned to negotiate a settlement — or proceed to trial. In some instances, the information obtained may even lead to summary judgment or result in the case being dismissed entirely. The discovery process can help identify potential issues and challenges early in litigation so they can be addressed proactively. Your attorney will evaluate the evidence and know the best approach to take in the case.
In addition, by asking the other side to admit to certain facts, discovery can narrow the issues in dispute and streamline what will be argued at trial. This can not only save time, but can also save money that would otherwise be spent on lengthy litigation.
What Are Some Common Discovery Pitfalls to Avoid?
While discovery can help shape your lawsuit, it can also break it. Mistakes made during this process can harm your case, company, and bottom line. One of the most common pitfalls to avoid is failing to preserve evidence. Even if done unintentionally, destroying or deleting evidence once litigation is reasonably anticipated can lead to sanctions for spoliation of evidence, adverse inferences, and other severe penalties.
Another mistake to avoid during the discovery process is not complying with discovery requests or ignoring deadlines. If you fail to cooperate during the discovery process, the other side may make a motion to compel, asking you to provide the information asked for. In the event you don’t comply, the court may bar you from introducing certain evidence or strike all or part of your complaint. The judge may also order you to pay the other side’s attorneys’ fees in connection with their effort to compel discovery or hold you in contempt of court.
While you must comply with discovery requests, you should also take measures to protect your company’s confidential information. Significantly, you can object to a request if the information sought is privileged or a trade secret. In such situations, the court may issue a protective order that would govern how the information can be used or disclosed.
Contact an Experienced New York Business Attorney
Discovery is the foundation of every business lawsuit. A skillful business attorney can help you navigate this phase of litigation and ensure you obtain the evidence needed to support your claim. At Barnes & Barnes, P.C., we offer high quality legal services for a wide range of business matters and are committed to guiding our clients through each phase of the litigation process. Contact us at (516) 673-0674 to schedule a consultation and learn how we can assist you.
