Everything You Need to Know About the Discovery Process and How to Protect Your Confidential Business Information

Everything You Need to Know About the Discovery Process and How to Protect Your Confidential Business Information

You’ve just been served with a lawsuit and discovery requests for all of your company’s financials, internal correspondence, and confidential trade secrets, what do you do?

The first thing to do is find a good attorney to represent you. Even if you think the lawsuit has no merit, you’re going to need to hire a lawyer to make that argument for you and try to get the case dismissed in the early stages of litigation. Next, your attorney is going to have to respond to the discovery requests you were served because there is a set amount of time to respond (usually thirty days) and failure to timely respond can have negative consequences.  

What does discovery entail? When a civil lawsuit is filed, the parties will engage in the discovery process so that both sides can see what facts, documents, and information their opponents have related to the claims and defenses at issue. The discovery process may involve oral depositions and written discovery, which includes interrogatories, requests for production, and requests for admission. Interrogatories are written questions sent to the other side and are typically open-ended, whereas requests for admissions are statements that must be admitted, denied, or objected to. Requests for production are far more specific and seek particular documents and communications, including electronic records. This often involves searches for electronically stored information (ESI) such as emails, text messages, audio and video files, Slack or Teams conversations, social media posts, etc.

What if the requests seek information you don’t want to give the other side? The good news is that discovery cannot be used to access privileged or legally protected information, and the scope of discovery is limited to evidence that is relevant to the dispute. The bad news is that the relevancy standard is generally construed broadly to encompass virtually any material which may lead to the discovery of admissible evidence, even if the material itself is inadmissible. However, that doesn’t mean you are without defense, as there are ways to limit the scope and your exposure, as well as protect sensitive information.

What are your defenses to limit the scope of discovery? For each interrogatory and request for production, you will likely respond with an answer and objection, or object altogether and not provide any answer or responsive documents. Objections can made for a variety of reasons but are primarily due to the request being vague, overly broad, and/or unduly burdensome if it would require an excessive amount of information or that information is not readily known or easily accessible. You can also object if you believe the request is irrelevant and explain why the information sought is not pertinent to the matter at hand. Additional reasons to object include the information already being available to the public or if it would violate attorney-client privilege. You may also object if you believe it would involve confidential or trade secret information.

The best thing you, as the client, can do during the discovery process to protect yourself and your business is to be honest and forthcoming with your attorney so they have all of the information they need to represent you. You should express your concerns to your attorney while also providing any and all information that may be remotely applicable to the lawsuit. Just because information is produced to your attorney does not mean it must be produced to the other side, so err on the side of oversharing and let your attorney work with you to segregate the relevant and non-relevant ESI.