One thing a civil litigation lawyer tries to avoid in a case is what is known as adverse inference. This is a doctrine in American law where the court can sanction a non-compliant party in a case by assuming that materials or testimony that weren't produced must be highly damaging for that side's arguments. This article takes a look at why a court might do this and what are some of the potential defenses against it.
Why Sanction Someone?
During civil litigation, the court always wants to strike a balance between compelling parties to comply with lawful orders and trying to avoid turning a civil case into a criminal proceeding. If one side seeks documents during discovery and the court orders the other side to produce those items, the court wants to see production done as swiftly and fully as possible.
What does the court do, though, if one side won't or can't comply with the order? They have three options. First, the judge could jail the non-compliant party until they do comply. Second, if the court feels the behavior is extreme enough, the judge could file a criminal referral. Third, the judge can sanction the non-compliant side.
If the first two options sound pretty extreme, the courts have historically agreed with that viewpoint. Jail and criminal referrals are typically reserved for egregious or persistent behavior, especially in civil cases. That leaves sanctions, and the strongest available sanction is adverse inference.
What Does Adverse Inference Entail?
The idea is simple. Suppose a company refused to produce documentation of how it handled its end of a contract. An adverse inference would be that the company's officers knowingly failed to fulfill the terms of the contract. Depending on the nature of the case, an adverse inference might lead to summary judgment against the non-compliant party.
The best defense against sanctions is to question the specificity of the documents or testimony in question. When a party seeks discovery, they have to be very specific about what it is they are seeking and what they expect to find.
Scope is the second-best argument against sanctions. Requests have to be limited, especially in terms of time frames. One company likely couldn't seek discovery of documents from years before it ever did business with another company, unless it could prove the behavior was part of a pattern.
In other words, fishing expeditions aren't allowed. A civil litigation lawyer filing requests will aim to narrowly tailor their discovery efforts.