When litigating a high-stakes case where at least one side has a trove of documents that could be relevant to the dispute at hand, disagreements over the scope and method for document preservation and production are more than likely to emerge. Sometimes, these disputes will get particularly heated, with one side refusing to budge from demands that the other side deems unreasonable or overly burdensome.
Facing an opponent who is relentlessly pushing for an unfavorable position can be daunting, especially to a younger attorney. But attorneys say that backing down isn’t the solution; instead, those faced with a bully need to do their best to use reason and compromise to diffuse the situation while ensuring that their integrity — as well as their client’s position in litigation — remain intact.
“If you take a proactive rather than a reactive approach to discovery, then you can take the fight out of the bully,” McCarter & English LLP associate and e-discovery committee member Makenzie Windfelder said. “If you have all the information at the outset and potential issues arise, you’ll be able to address them head-on and put your client in a more strategically favorable position than being behind the eight ball.”
Besides helping to reduce discovery costs, being willing to compromise on points of disagreement will also prove beneficial if the dispute winds up before a judge, according to attorneys.
“Where the sides are being unreasonable and not willing to bend, that leaves a bad taste in the court’s mouth,” Windfelder said. “By taking a more cooperative tone to discovery, you have a better chance that the dispute will work out in your favor.”
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