Liberal Availability of Pre-Trial Discovery

April 13, 2006

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When navigating the court system, a small business owner encounters certain risk factors inherent in litigation.

For example, the liberal availability of pre-trial discovery can work against either party to a case, but particularly against a defendant in a civil action.

Through the use of the specific tools of pre-trial discovery, you can be forced to answer an opponent's questions under oath and to provide copies of all relevant documents in your possession, or under your control, even when this evidence is extremely damaging to your case. Defenses to pre-trial discovery are scarce.

The consequences of pre-trial discovery are two-fold. While pre-trial discovery is more often likely to harm a defendant's case--because the claim is being made against and monetary damages are being sought from the defendant--it also can undermine a plaintiff's case, because the plaintiff, too, can be forced to provide information that undermines his claim.

This underscores the importance of having a plan for pre-trial discovery.