The Best Representation: Understanding Your Business and Its Functionalities

Toward the end of last year, I attended a discovery conference in D.C. Throughout the panel discussions of the proposed changes to the Federal Rules of Civil Procedure and various electronic discovery resources, I found myself thinking about the practical application to my current cases and future client representation. In other words, I was wondering how it applied to my legal practice and my clients.

“Discovery” is when the parties to a litigation exchange information related to the case. Unfortunately, the discovery process can be complicated, leading to both parties and their attorneys getting in trouble with the court. While outright discovery abuse is rare – though not unheard of – problems more often arise because the attorney does not sufficiently understand his client’s business and its functionalities.

Take, for example, the recent case of Brown v. Tellermate Holdings Ltd. in the United States District Court for the Southern District of Ohio. In this employment matter, Tellermate Holdings failed to produce to the Browns certain information that should have been turned over in discovery. This discovery failure stemmed from the attorney’s own failure to understand Tellermate’s business and how it worked. More specifically, Tellermate’s counsel did not uncover the existence of both an entire database of relevant and discoverable information and other relevant documents regarding a related employment dispute until long after Tellermate and its counsel had made untrue sworn statements to both the Browns and the court. Ultimately, the court imposed sanctions, prohibiting Tellermate from being able to use certain evidence that would have been a complete defense to the Browns’ lawsuit and ordering both the company and the attorneys to pay the Browns’ attorney’s fees related to the discovery failure.

While discovery disasters like that in Tellermate are rare, even the smallest oversight during discovery can lead to real costs for clients and attorneys alike. In order to minimize the likelihood of such a breakdown in the discovery process, your counsel needs to understand your business and how it functions. Though the information gathering process can take time and effort, it will save you money on the back end by reducing the possibility of costly monetary sanctions. If you are currently going through the discovery phase of litigation and your attorney has not already interviewed the individuals who the business on a daily basis run, you may not be adequately protected.

For more information about how STSW can best represent you and your business, contact Sima Fried at 410.385.6248 or sfried@silvermanthompson.com or Bill Sinclair, head of STSW’s business litigation group, at 410.385.9116 or bsinclair@silvermanthompson.com for a free consultation.