The Other Side Is Hiding Something, But Now What?
In the process of business litigation, it's not uncommon for one side to become convinced the other side is hiding something. Fortunately, America's legal system takes this possibility into account. Here, take a look at the tools available to a business litigation lawyer for getting to the bottom of things.
One of the first tools an attorney uses when there are concerns about information or items being hidden during litigation is to send a notice to the other party. This informs them of what you believe they have. They're also told to make sure to preserve the actual items and any records they might have. For example, a dispute involving a shipment might include a notice to the shipper telling them to save database entries, manifests, and other forms of tracking for the items in question.
It's natural to think, "Doesn't that give them a leg up on hiding things by telling them?" For reasons you'll see later, it builds the legal case that will be used against them, especially if they make the damning mistake of destroying or willfully failing to produce evidence.
If litigation continues for long enough, the court will order discovery. This is a legal mechanism that authorizes both sides to compel the other to produce evidence. Each side is required to produce the evidence, even if it does major damage to their case. Notably, if anything is going to force a settlement of the case, there's a good chance it'll be something bad found in discovery.
Be aware that discovery requests have to be highly specific. One of the common defenses for not producing something is that the requested items don't match anything a company has. This need for specificity is one of the primary reasons it's wise to hire a business litigation lawyer.
Failure to produce items, even in civil cases, may lead to subpoenas from the court. The term "subpoena" is Latin for "under pain." The pain often being fines or even jail time until the discoverable materials are produced.
As you may imagine, judges aren't thrilled about jailing people in civil proceedings. One solution is sanctions, with adverse inference being the harshest. An adverse inference is drawn when the items can't be produced, such if documents have been shredded. The inference the court applies is that whatever was in the documents must have been beyond terrible for the side that destroyed the items. In an extreme case, this may lead to a summary judgment.