USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken
may be in the case. To the extent a party’s finan - cial information relates to specific elements of a claim or defence, a defendant may seek discov - ery through both the production of documents and the provision of testimony at a deposition. Ordinarily, a party seeks asset discovery from the defendant or from third parties once the court has entered judgment on the claim. In those circumstances, the plaintiff has broad rights to seek discovery without any prior approval from the court, and may even seek discovery of assets located in other jurisdictions. Courts also have discretion to permit asset dis - covery even before judgment. Typically, a plain - tiff seeking pre-judgment asset discovery has filed a motion for preliminary injunction or sought pre-judgment attachment and is seeking asset discovery in aid of that motion. Discovery seek - ing asset disclosure ordinarily does not require an undertaking by the claimant. If the defendant fails to respond to discovery demands, the plaintiff must first attempt to resolve the issue by conferring with the defend - ant. It may then file a motion to compel under Federal Rule of Civil Procedure 37(a). If the court grants the motion to compel but the defendant still refuses to produce the discovery, the plaintiff may then seek sanctions, which may include sig - nificant daily fines until the defendant complies. 2.2 Preserving Evidence Under US law, the duty to preserve evidence exists independent of a court order directing such preservation. Federal Rule of Civil Proce - dure 37(e) imposes a duty on a party to preserve evidence from the time litigation can reasonably be anticipated. Often, once litigation is reason - ably anticipated, a party will issue what is known
as “litigation hold” to custodians who may have relevant documents. If a party fears that evidence may be destroyed or suppressed despite the obligation to pre - serve it, the party may move for a preservation order. It must demonstrate that the order is nec - essary and not unduly burdensome. First, the movant must show that without a court order there is a risk that relevant evidence will be lost or destroyed. This is often shown by demon - strating that the opposing party has previously destroyed evidence or has inadequate retention policies. Second, the movant must also show that the proposed preservation steps will be effective but not overly broad. In general, courts are not inclined to wade into discovery disputes between parties. However, where necessary and upon the requisite show - ing, courts will order relief. Courts in the United States are not likely to allow a physical search of an opposing party’s docu - ments by another party. Generally, parties and their attorneys are responsible for collecting and disclosing relevant documents. If there is a dispute as to whether certain documents are relevant and required to be disclosed, a court may order that they be reviewed in camera by the court. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Subject to certain requirements, a party may serve a subpoena upon a non-party command - ing the production of documents or the provision of testimony at a deposition. Courts are sensitive to non-party discovery and seek to balance the burden placed on non-parties with the need for the requested documents or testimony. Courts
434 CHAMBERS.COM
Powered by FlippingBook