Ever read an article that simply nailed an issue? The first two paragraphs of James Nealson’s article published in the CT Law Tribune has done that for me, based on my personal experience with litigation cases I have been involved in the last few years.
The common practice of withholding documents and information by opposing parties not only negatively impacts counsel’s ability to adequately prepare and prejudices their case, it also impacts their experts in the case who need the complete documents in the opposing party’s possession to perform their complete and objective analysis of all the facts in the matter, not just the ones the opposing party choose to produce. Following months and in some cases years of frustration, cost and energy to gain access to the information known to exist, it is often provided on the eve of depositions or the trial itself, leaving no time to react to the withheld information. The withheld information could also have an impact on any report that was issued based upon the limited information actually provided, positively and/or negatively changing the conclusions and opinions previously reached.
From a non-attorney’s perspective, the questions I have are these – why has this become such a pervasive practice?, and what significant consequences can the courts impose when this is identified to stem this growing practice?
Here’s the excerpted two paragraphs from Mr. Nealson’s article:
“Almost all commercial litigators have frequently encountered an uncooperative opposing party who fails to timely comply with document requests in a complete manner. The requesting party is then forced to spend a significant amount of time, effort and client money analyzing the production to identify “holes,” followed by tedious and expensive letter-writing campaigns seeking to induce voluntary compliance.”
“Once a motion to compel is finally filed as a last resort, the producing party seeks to pull the rug out from under the motion by producing documents on the eve of the court hearing. In the meantime, the requesting party is prejudiced by having to proceed with its case preparation and depositions without the benefit of the withheld documents.”