Commercial litigation is a document-intensive process. The case may turn on evidence in documents that you or the other side hold in your possession. Both sides have a legal obligation to preserve documents in the case. Otherwise, there could be consequences in the litigation.
Your documents can contain helpful evidence for your case. They may form the basis of your position at trial. At the same time, the other party may want access to your documents because they would provide substantial evidence that backs up their arguments.
At the outset of the case, each side may send the other a document retention letter. This letter would direct the other party to preserve documents in anticipation of potential litigation. You may receive a demand letter after the other side has sent you a demand or cease-and-desist letter. You need to heed what the letter asks because you are not in a position to determine what documents need to be retained.
Document Retention and Discovery
It is essential that you take steps to preserve important documentation relevant to your case. If the commercial litigation progresses further, your case will reach the discovery phase. You will be legally obligated to produce documents relevant to the case if the request complies with civil rules of procedure. The judge may have to determine what you are obligated to produce.
Document retention will help you when it comes time for discovery. You will need to produce large amounts of information under a short deadline. Knowing what is in your possession is crucial before you produce it. You do not want to hand over privileged or irrelevant information.
Most documents are kept in electronic format. You must retain these documents in a separate drive. Then, you should make sure to back up the files. Keeping them electronically in one place will help you later in the case. Once you learn of the possibility of litigation, you should immediately take steps to keep and organize documentation.
The Court May Punish You for Failure to Retain Documents
There will also be significant consequences if you fail to retain relevant documentation properly. The term for document retention failures or destroying relevant evidence is “spoliation.” One of the harshest penalties a judge could impose is ordering the jury to draw an adverse inference based on the documents that were not retained. The more intentional the failure to maintain records seems, the more likely a judge will impose serious sanctions.
Hiring an attorney early in your case can help you avoid some of the pitfalls you may encounter if left to your own devices. Your attorney will advise you of your document retention obligations. A lawyer will also have the resources to help you produce large amounts of documents when requested during discovery.
Our New Jersey Commercial Litigation Lawyers at Herold Law, P.A. Can Help You if You Are Facing Litigation
Our New Jersey commercial litigation lawyers at Herold Law, P.A. can advise you at all phases of your case, whether it is early preparation for a lawsuit or taking your case to trial. Call us today at 908-679-5011 or contact us online to schedule a consultation. Located in Warren, New Jersey, we work with clients in Somerville, Morristown, and across the state.