What Is Discovery and What Should You Know Before Filing a Business Lawsuit?
What Is Discovery and What Should You Know Before Filing a Business Lawsuit?
Filing a lawsuit is not the end of a dispute — it is the beginning of a process that can be expensive, time-consuming, and demanding of both your time and resources. One of the most significant and least understood aspects of that process is discovery. Before you decide to file a business lawsuit in New Jersey or New York — or before you try to handle one without a lawyer — here is what you need to understand about discovery, and why it matters more than most business owners realize.
What Is Discovery?
Discovery is the pre-trial process through which each side in a lawsuit can obtain evidence from the other side and from third parties. It typically includes: interrogatories (written questions that must be answered under oath); document requests (demands to produce emails, contracts, financial records, and other documents); depositions (oral examinations of witnesses under oath, recorded by a court reporter); requests for admission (demands that the other party admit or deny specific facts); and subpoenas to third parties for documents or testimony.
The Document Preservation Obligation — It Starts Now
One of the most important — and least understood — aspects of litigation is the document preservation obligation. Once litigation is reasonably anticipated, both parties have a legal duty to preserve all potentially relevant documents and electronically stored information (ESI). This means stopping the routine deletion of emails, preserving text messages, backing up relevant computer files, and halting any data management practices that might result in the destruction of relevant evidence.
Failing to preserve evidence — even negligently — can result in sanctions by the court, including adverse inference instructions (telling the jury to assume the destroyed evidence would have hurt the party that destroyed it) or even dismissal of claims or defenses. This preservation obligation applies to the party filing the lawsuit and to the party defending it. If you are contemplating filing a lawsuit or have reason to believe one may be filed against you, preserve everything now.
What Discovery Actually Costs
Discovery is expensive. Reviewing and producing documents requires significant attorney time. Depositions cost money for court reporters, transcripts, and attorney preparation and attendance time. Electronic discovery — collecting, processing, and reviewing emails and other digital data — can add significant cost in cases involving large volumes of documents. In complex commercial cases, discovery costs can dwarf the attorney fees incurred at trial.
Before filing a lawsuit, have an honest conversation with your lawyer about the likely scope and cost of discovery given the facts of your case. The amount you spend on discovery should be proportionate to what you stand to recover. A well-advised plaintiff considers the total cost of litigation — not just filing fees — before deciding to proceed.
Why Going It Alone Is Particularly Risky in Discovery
Discovery is one of the most technical aspects of litigation. Failing to respond to discovery requests properly, missing deadlines, producing documents that inadvertently waive attorney-client privilege, or failing to object to overbroad or improper requests can have serious consequences for your case. Business entities cannot represent themselves in New Jersey or New York courts — but even for individuals who have the right to self-representation, navigating discovery without a lawyer significantly increases the risk of errors that can undermine your case.
If you are considering filing a business lawsuit in New Jersey or New York, contact Russo Law LLC for a consultation. Understanding what you are getting into before you file is one of the most valuable conversations you can have with an experienced business litigation lawyer.
Frequently Asked Questions — Discovery in Business Lawsuits
Do I have to produce all my emails in a business lawsuit?
You must produce emails that are relevant to the claims and defenses in the lawsuit and are responsive to the opposing party’s document requests. You are not required to produce every email you have ever sent — only those that are responsive and not protected by privilege. Your lawyer will help you identify what must be produced and what can be withheld on privilege or other grounds.
What happens if I delete emails after a lawsuit is filed?
Deleting potentially relevant documents after litigation has begun or is reasonably anticipated is called spoliation of evidence. Courts can sanction parties who destroy evidence, including by instructing the jury to assume the destroyed evidence would have been harmful to the party that destroyed it. In severe cases, courts have dismissed claims or entered default judgments as a sanction for willful spoliation.
Disclaimer
The legal and business issues discussed in this post vary depending on the specific facts and circumstances of each situation. This corporate lawyer blog post is for informational purposes only and does not constitute legal advice. It is not an offer for Russo Law LLC to represent any party, nor does it create an attorney-client relationship. No action or inaction should be taken based on the information provided without seeking professional legal counsel. This post is intended for businesses in New York and New Jersey. It may not reflect laws in other jurisdictions. This blog post is attorney advertising. Prior results do not guarantee a similar result. Do not send confidential or sensitive information through this website.