Compliance with Litigation Discovery Obligations and Early Assessment of Costs and Resources

George Benaur, Benaur Law LLC

In United States, litigation requires discovery, document productions and often depositions. This process is unique in our system and requires compliance with strict court rules on discovery. Foreign nationals especially need to be acutely aware of the importance of complying with the court rules in U.S. courts; this applies to all clients, foreign and domestic; but for those unfamiliar with the U.S. court system, the advice is especially relevant, since experience has shown, the importance of complying with the court rules is not always easily understood, absent personal experience.

In the world of civil litigation, especially in U.S. federal court, it is critical for clients to understand the severity of potential adverse consequences that may follow if they fail to abide by court rules and do not timely submit discovery, such as documents in response to document requests. Even the most skilled attorney cannot maneuver indefinitely when clients do not provide the information and documents in response to valid requests served on them during the litigation process. For some reason, despite warnings, some people fail to listen.

All courts are different and some judges may be more flexible than others in adjusting the discovery deadlines. It is well known, for example, that many cases are delayed for years, with countless discovery extensions. In certain instances, it may be possible to extend discovery deadlines, but not all the time. Clients also need to be aware that failure to comply with discovery obligations could lead to significant adverse consequences, and could even lead to losing the case. The court can impose sanctions on you for failing to comply with the discovery obligations, such as if you fail to produce the requested documents on time, or fail to produce all of them. Such sanctions can include striking the pleadings (e.g. the answer) of the party, which will cause that party to lose the case.

Part of the problem for some clients who fail to take this seriously may lie in the fact that their experience in certain courts led them to believe that their non-compliance will go on unpunished and that all courts will treat the matter the same. In some courts, this may work and I have seen judges in state court, sometimes, give extensions on discovery obligations without much question. Counting on obtaining an extension in all instances is a clear mistake, however, especially in federal court. District court judges are usually of the highest professional caliber and I have never met a federal court judge that did not take the management of his or her docket with the utmost responsibility. Judges are overworked with cases and it is imperative to always be in compliance with the court rules, and certainly with regard to discovery obligations.

The cost and time that the discovery process will take should be taken into account when undertaking a risk benefit analysis as to whether to engage in litigation at the inception of the case. Certain cases, for example, may require such onerous and expensive discovery, such as electronic discovery of data, emails and other electronic media, that it is more practical and cost effective to settle the matter, if feasible, rather than undertake the expense of pro-longed discovery. But avoiding discovery obligations is not a viable litigation strategy.

In general, clients are advised to engage competent, experienced counsel who will delve into the details of their case at the inception of the matter, in order to assess the likely process and costs of the litigation, including document productions and depositions. It is much better to assess these costs early on, and know what will be required in the case, rather than avoiding the issues and then facing the realities of the obligations under tight deadlines later in the case. For these reasons, clients and their representatives are advised to invest the time and resources required at the inception of the case to conduct a detailed risk benefit analysis, which includes what evidence is out there to prove or disprove the client’s stated positions in a given matter, before engaging in full, blown litigation.



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