Here, we’ll evaluate the process to preparing for the requests of production of documents.
During the discovery phase of your lawsuit, you should expect the first exchange of information with your opposing party to be centered on document review. Preparation for responding to requests for production of documents should, if possible, begin even before the lawsuit is filed.
Your Duty to Preserve/Production of Documents
You have a duty to preserve all potentially relevant information if you are currently involved in a lawsuit or if a lawsuit is looming. You should issue a litigation hold when you receive a complaint or subpoena or reasonably determine litigation is imminent. A litigation hold is a formal notice throughout your organization to preserve evidence.
Ideally, you have implemented document retention policies internally so that employees have a process for recording and disposing of documents. Software can assist in implementing these policies and corporate counsel can draft policies and procedures with litigation in mind.
One critical risk involved in gathering documents for disclosure is spoliation of evidence. “Spoliation” generally means you failed to preserve evidence or destroyed evidence that another party to the litigation would rely upon in their case. For example, an employee permanently deletes an email that is generally stored in a digital archive. Your attorney will consequently need to demonstrate to the court why that document is not retrievable. Spoliation of evidence can cause the court to order adverse jury instructions against you and sanctions. Your attorney can advise on procedures for mitigating the risk of sanctions. For example, securing an affidavit from the technical support team in the aforementioned example to demonstrate the emails were not retrievable would mitigate the risk of sanctions.
If you are in New Jersey state court, Rule 4:23-6 protects you from penalties for destroying documents so long as the destruction was in good faith and at the time the documents were destroyed, you did not reasonably believe them to be included in a litigation hold.
Save Both the Soft and Hard Copy
In modern litigation discoverable documents are predominantly stored electronically (e.g. emails). With more and more businesses transitioning to digital platforms and document management software, hard copy documents are progressively less available. That does not mean if documents are available in both soft and hard copy, you can destroy the hard copy files. All relevant and reasonably accessible documents in your custody or control should be preserved to avoid the risk of penalties from the court. To determine if you breached this duty, a court will generally look at the circumstances to determine if a reasonable person in your position should have preserved the documents.
Determining What to Preserve and Produce
In assessing what type of information to provide to the opposing party, it is generally prudent to consider a broad scope at the initial phase before the parties narrow the discovery scope through subsequent meetings and development of case theories. As the client, you will be able to ascertain where the information resides and your attorney can assist in considering potential sources of information you may have neglected (e.g. former employees, contractors, and affiliate companies). Depending on your IT infrastructure, backing up files, preserving files from upper level custodians, and consulting with e-discovery consultants can ease the burden of production and keep data secure.
You and your counsel will also need to have an open and transparent discussion with the opposing party at your case management conference and as the case progresses. Topics to discuss include:
- The volume of documents;
- Sources of information (e.g. social media platforms and employee-owned devices);
- Backup procedures that have been taken to preserve information;
- Document retention policies and procedures;
- Relevance of particular custodians;
- Details about how you issued or failed to issue a litigation hold;
- The scope of disclosure;
- Form of privilege logs;
- Personal information that requires redaction; and
- Any third party data that needs to be gathered.
Your attorney can educate you on applicable privilege doctrines that protect material from being disclosed such as attorney-client privilege and work product privilege. These doctrines can curtail the breadth of production and protect you from potentially damaging evidence.
If you believe the opposing party’s requests are too broad and burden the operations of your business, consult with your attorney about filing motions to exclude evidence and motions to narrow the scope of discovery. The additional costs involved with motion practice may save money in the long term.
Developing a Timeline for Disclosures
You and your attorney can discuss how to manage the timeline for disclosures and discussions should begin as soon as possible. In New Jersey state court the parties are not required to do an initial document disclosure before formal discovery begins, unlike in federal courts under Rule 26(a)(1).
You can get a sense of the documents that may bolster your case and rebut your opponent’s by reviewing the complaint which sets forth the claims on which the plaintiff relies and lists the parties. From there, you should discuss with your attorney (1) what types of disclosure deadlines need to be met, (2) if there is opportunity to extend these deadlines by filing a motion with the court, (3) whether to file a motion to stay discovery entirely because of a related issue that has not been resolved, (4) what information may violate your confidentiality obligations with third parties if disclosed, (5) whether to secure a protective order from the court to keep information confidential, and (6) what vendors to use for document review.
Budgeting for the Document Production
You will need to prepare for the costs involved in collecting these documents. Here are some factors you will need to consider:
- The ease of accessing records (e.g. are the files stored off-site or are they in a third party cloud platform);
- What consultants you may need to hire to review the data before producing it;
- Costs of internal human resources to gather data; and
- What method of document review to use (e.g. law firms with e-discovery tools).
Your attorney can help you budget for the RFP since he or she will be better suited to determine what scope of documents need to be collected for disclosure based on relevancy and privilege.
If you are anticipating litigation or have been named in a business lawsuit, call Snellings Law LLC at 973.265.6100. Our commercial litigators have the expertise to handle all types of business litigation from contract and real estate disputes to consumer fraud.