Business and Commercial Litigation: Request for Production of Documents

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Commercial litigation attorneys often work on document intensive lawsuits.  Two of the most important ‘first steps’ in business litigation is to compile all of the relevant documents.  Documents can come from three sources:  (1) the client, (2) the opposing party or parties and (3) third parties.  Here are some tips of gathering the evidence.

The Client’s Documents

An experienced business trial lawyer needs to gather all of the client’s documents in order to make an initial analysis of the case.  The client can make this process easier by gathering and organizing all of the relevant documents and providing them to the attorney in a timely manner.  These documents will usually include (1) the contracts and any drafts, (2) all letters, emails and other correspondence with the opposing party or regarding the issue in the lawsuit, (3) all letters, emails and other correspondence internally regarding the opposing party or the issue in the lawsuit, (4) all letters, emails and other correspondence with third parties regarding the opposing party of the issue in the lawsuit, and (4) all invoices, accounting reports, records of payment and other financial documents regarding the alleged damages or amounts owing.  Depending on the type of litigation there may be additional documents that are relevant to the lawsuit:  reports, applications, loans, permits, etc.  The attorney should also request other information that may not come to mind right away but which can be dangerous at trial.  For example, has the client written articles on the subject?  Has the client been involved in similar lawsuits and, if so, were there deposition transcripts which the attorney should be aware of?  Does the client put out marketing materials which make claims to expertise or promise certain results?  Lastly, calendars are often overlooked but very helpful.  Calendars can help determine when parties met, when meetings were held and the like.  Both client and attorney should be thinking through what documents will be helpful to the case and what documents the opposition may have which could prove damaging to the case.

The Opposing Party’s Documents

The attorney should also serve a thorough request for documents on the opposing party’s to include all of the items listed above.  Similarly, there are often documents which can be overlooked.  If the sophistication of the opposing party will be an issue in the trial, the attorney should think about requesting his or her resume, marketing materials, articles written and other items which may not have to do with the specific contract or issue in the lawsuit but could be useful in cross-examining the witness.

The requesting attorney should also be to review the documents produced.  Did the opposing party produce its emails?  For the entire time period?  To all of the parties?  In one large professional malpractice case I was involved in, the defendant accounting firm produced boxes of documents but only one email.  While they claimed that they had produced all of the responsive documents, it just seemed unbelievable that all of the accountants working on this case had written only one email.  It seemed unbelievable that the person who had written the email only used his email once when discussing this case.  In that case we brought a motion to have a forensic computer expert inspect the defendant’s computer system.  The motion was granted and, lo and behold, a day before the inspection was scheduled, the defendant produced reams of additional emails which they had ‘just discovered’.

Third Party Documents

The attorney seeking business records from a third party must issue a subpoena.  This is usually not a difficult process.  However, it can often be very productive.  Oftentimes the attorney will discover that the third party has produced emails from the opponent that the opponent did not produce.  In addition third parties may have kept notes of telephone conversations or meetings.

Trial attorneys often find helpful information by compiling and then comparing the documents gathered from these three sources.  Requesting these documents from these different sources is an essential part of any business litigation.  Attorneys must also make sure to follow up with each of the sources to make sure that everything responsive has been produced.  Deposition questioning on what search was undertaken often reveals additional documents that were not produced.  Make sure that you question your own client before you get to deposition to make sure that you have everything possible.  Surprise documents in deposition can be very damaging in a case.

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