Discovery in Breach-of-Contract Litigation: A Primer for Florida Business Owners

In commercial breach-of-contract litigation, discovery can play a key role in defining both parties’ litigation strategies and setting the stage for trial. But, strategic use of discovery can also provide leverage for pre-trial settlement negotiations in many cases. As a result, when facing contract-related disputes, it is critical that business owners have a clear understanding of the opportunities and challenges that discovery presents. Learn more from an experienced Miami breach of contract lawyer at Edelboim Lieberman:

4 Types of Discovery in Breach-of-Contract Litigation

There are four main types of discovery in commercial breach-of-contract litigation (and in commercial litigation generally). Just like discovery itself, each type of discovery presents unique opportunities and challenges—making it critical for companies and their counsel to take an informed and strategic approach to the discovery process. The four main types of discovery are (i) requests for the protection of documents, (ii) interrogatories, (iii) depositions, and (iv) requests for admissions.

1. Requests for Production of Documents

In commercial breach-of-contract litigation, each party has the right to obtain relevant records that are in the other party’s possession, custody or control. “Documents” refers to both hardcopy and electronic files—and parties have an obligation to produce responsive documents regardless of the format or location in which they are stored (unless the court orders otherwise or the parties otherwise agree). Depending on the nature of a dispute, some of the types of documents that companies may need to produce during the discovery process include:

• Corporate records
• Internal communications
• External communications
• Invoices and receipts
• Financial records
• Contracts with other parties
• Inspection reports, audit reports and other documents that are relevant to the parties’ dispute

With that said, a key consideration to keep in mind is that parties to litigation only need to produce documents that are responsive to another party’s requests for production. This makes it vital for parties (and their counsel) to craft their requests carefully—and makes it equally vital for parties to carefully review the requests they receive before producing anything in response. When providing access to responsive documents, parties must also be extremely careful to avoid inadvertently disclosing records that are subject to the attorney-client privilege or other protections.

2. Interrogatories

Interrogatories are written questions seeking information that a party may not be able to obtain through its requests for the production of documents. Just like requests for production, parties (and their counsel) must carefully craft their interrogatories to ensure that they serve their intended purpose. In some cases, it may make sense to serve interrogatories (or a second set of interrogatories) after a party has had a chance to review another party’s documents—though there can be strategic benefits to requesting as much information as possible early in the litigation process as well.

3. Depositions

While interrogatories require written responses, taking depositions affords the opportunity for litigants to obtain oral testimony under oath (interrogatories must be answered under oath as well). In commercial breach-of-contract litigation, it is not unusual for both parties to take multiple depositions—including depositions of company executives, project managers and record custodians, among other individuals. During depositions, the individuals being deposed can (and should) be represented by the company’s counsel—as the company’s counsel may need to intervene in order to protect sensitive information and to preserve issues to raise at trial or on appeal.

4. Requests for Admissions

Along with requests for production, interrogatories and deposition notices, parties in commercial breach-of-contract litigation can also use requests for admissions to help build their claims and defenses. Oftentimes, requests for admissions can be effective tools for narrowing down the issues in dispute and streamlining trial as well. Requests for admissions are unique from the other forms of discovery in that recipients do not have to provide any information in response (though a response is still procedurally required)—although they can choose to do so if it ultimately serves their litigation strategy.

Limitations on Discovery in Breach-of-Contract Litigation

In commercial litigation, the discovery process is broad by design. It is intended to prevent surprises by giving both parties equal access to the information that is relevant to their dispute. But, it is up to the parties to exercise their right to discovery—and this is one of many reasons why it is important to engage an experienced Miami breach of contract lawyer when facing a high-stakes commercial contract dispute.

Importantly, however, while litigants have broad rights to take discovery in commercial litigation, these rights are not unlimited. In fact, there are several limits on the discovery process that are designed to ensure fairness and efficiency while preventing litigants from using discovery as a tool to overburden counterparties or waste counterparties’ resources. Understanding these limits is critical as well, as litigants need to both (i) avoid going too far in requesting discovery (which can lead to sanctions), and (ii) know when they have grounds to challenge counterparties’ discovery requests in court.

Strategic Considerations Related to Discovery

While discovery is a pre-trial procedure, the strategic use of discovery can lead to pre-trial settlements in many cases. As a result, when preparing for (or participating in) discovery, litigants need to consider not only the potential trial implications, but the potential settlement implications as well. For example:

• Before Taking Discovery – Before taking discovery, litigants (and their counsel) should determine how they can use the discovery process to their advantage while also realistically assessing the costs of complying with their counterparties’ discovery requests. If the costs outweigh the benefits, then pre-discovery settlement negotiations may be warranted.
• During Discovery – During discovery, litigants (and their counsel) should review counterparties’ responses upon receipt to determine if they provide leverage for settlement negotiations or warrant a change in trial strategy. They should also carefully consider whether any objections to counterparties’ discovery requests are warranted.
• After Discovery (and Before Trial) – After discovery, litigants (and their counsel) should take stock of all of the relevant facts in order to determine how best to proceed. Depending on the circumstances, this may involve leveraging newly discovered evidence in settlement negotiations, or it may involve preparing the evidence for trial.

Speak with a Miami Breach of Contract Lawyer at Edelboim Lieberman in Confidence

At Edelboim Lieberman, we have extensive experience representing Florida companies in commercial breach-of-contract litigation. If you would like to discuss a dispute with one of our lawyers in confidence, please call 305-768-9909 or contact us online to arrange a complimentary consultation.