In last week's Freedom Friday blog and email newsletter, I talked about how your small business should respond to a lawsuit. In other words, what you should do if your small business gets sued. One of the things I said last week is that you need to gather documents, especially if you've been sued for breach of contract, or any business litigation matter, there should be paper trail related to the lawsuit. The reason this is important is because you will probably need to produce these documents as part of the discovery process, which is the subject of this week's Freedom Friday blog and email newsletter. In this week's Freedom Friday blog and email newsletter, I am going to provide a brief overview and introduction to the discovery process in business litigation cases. There are three (3) types of discovery requests which you can expect to respond to in a business litigation lawsuit:
The first type of discovery requests which you can expect to respond to in a business litigation lawsuit is written discovery. There are three (3) different types of written discovery requests: requests for admissions, interrogatories, and requests for production of documents. Requests for admissions are attempts to get you to admit certain facts that may or may not be relevant to the lawsuit. Most requests for admissions should be denied, but your attorney (you hopefully have hired one) will coach you as to whether you should admit or deny requests for admissions. The second type of written discovery which you should expect to respond to are interrogatories. Interrogatories are written questions that may or may not be related to the lawsuit. Again, your attorney will coach you in providing answers, and your attorney will be skilled in objecting to interrogatories when appropriate. The third type of written discovery is requests for production of documents. This is exactly what it sounds like, although your attorney may wish to make certain objections, determine whether or not a request is relevant, and of course, you never produce everything.
The second type of discovery requests which you can expect to respond to in a business litigation lawsuit are depositions. These are less common in business litigation, but in more complex cases they do occur more frequently. A simple breach of contract case that usually gets resolved on a motion for summary judgment (that's next week's topic) probably won't require depositions of the parties or other witnesses, but a more complicated case might require depositions as part of the discovery process. The purpose of a deposition is to preview the testimony of a witness or a party involved in the litigation. Typical questions tend to re-hash what was stated in answers to interrogatories, but deposition questions are oral, taken under oath, and allow the deposing attorney to probe further responses. Also, if the opposing party has stated in their answers to interrogatories that they will present nonparty witnesses, then you might wish to take the witness's deposition.
The third type of discovery requests which you can expect in a business litigation lawsuit, and these are more common than deposition, are subpoenas. Subpoenas are usually directed at nonparties, and either require nonparties to produce documents or appear at a deposition, or both. It is important for you as a small business owner to understand subpoenas because if you get sued, and the party suing you issues a subpoena, you have a right to notice of the subpoena (and to get a copy of any documents produced because of the subpoena). Even more important, you as a business owner might be served with a subpoena in someone else's lawsuit, and then you need to respond to it. If you do receive a subpoena, the first thing you should do is hire an attorney to help you respond to it.
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