Missing documents. Incomplete discovery responses. A deposition witness who avoids straightforward questions. In complex business litigation, these obstacles can increase costs and leave clients wondering how they can prove their case.
The answer is to build a record that does not depend entirely on the opposing party’s cooperation. At Tajima LLP, that often involves three complementary approaches.
Start with the evidence closest to the client.
The most cost-effective starting point is frequently the client’s own documents and witnesses. Preserve and organize emails, text messages, contracts, financial records, and other relevant materials—including those that appear unfavorable. Identify witnesses within the client’s organization or network, assess their firsthand knowledge, and compare their recollections with the documents.
A contemporaneous email already in the client’s possession may accomplish more than months of arguing over an incomplete discovery response. Understanding our own evidence also helps identify precisely what is missing and where else to find it.
Obtain documents and testimony from third parties.
Customers, vendors, former employees, financial institutions, and other third parties may hold records or know facts that the opposing party has not disclosed. Subpoenas can obtain documents and deposition testimony from witnesses who are favorable, adverse, or neutral, subject to applicable procedural requirements and protections. California’s nonparty discovery statute
A third party with little stake in the outcome may have less incentive to distort events or risk credibility to protect a litigant. Their testimony still requires scrutiny, but independently maintained records can be particularly useful for testing the opposing party’s account.
Use motion practice to obtain answers and clarify positions.
A properly supported motion can accomplish more than obtaining an immediate ruling. It may require the opposing party to explain its position, identify evidence, or commit to an account that later discovery puts to the test.
Depending on the dispute, useful procedures include:
- Summary judgment or summary adjudication motions: Once the moving party meets its initial burden, the opposition generally must identify evidence establishing a triable factual dispute. This can expose the documents, testimony, and factual positions on which the opponent relies. Summary judgment requirements
- Demurrers and motions for judgment on the pleadings: These test the legal sufficiency of allegations, rather than ordinarily weighing evidence. They may prompt an opponent to clarify its theory or amend its allegations, creating an account that can be tested through discovery. Demurrers; judgment on the pleadings
- Motions to quash service of summons: A jurisdictional or service challenge may elicit declarations about residence, business relationships, California contacts, or where particular events occurred. Jurisdictional challenges
- Motions to compel further discovery responses or deposition answers: These address deficient responses and improper refusals to answer. An explanation about missing documents may become significant when another source later produces them. Counsel must preserve the applicable deadlines while pursuing other evidence. Document responses; deposition answers
- Temporary restraining order and preliminary injunction motions: Requests for immediate protection may draw out evidence about ongoing conduct, control over assets or information, and threatened harm. Injunction procedure
- Ex parte applications: Where emergency relief is justified, an application and any opposition can establish contemporaneous positions concerning timing, urgency, notice, and prejudice. Ex parte requirements
These procedures should serve a legitimate objective proportionate to their cost. Their additional strategic value lies in the record they create.
An opposing countersuit can also sharpen that record. A party bringing a cross-complaint must allege facts supporting its claims. Those allegations provide a framework for targeted discovery: What happened? Who witnessed it? Which documents support it? How were the alleged losses calculated? Allegations are not proof, but they provide an account to investigate. Pleading requirements
Today’s useful explanation may become tomorrow’s credibility problem.
Every statement a party makes can offer an immediate advantage, but it also opens that party’s account to scrutiny. An allegation, denial, or sworn declaration that helps today may need to be reconciled with documents and testimony tomorrow.
In one matter we handled, a party submitted an early declaration stating that they lived entirely in one state. Later, they asserted that they divided their time exactly equally between that state and another—50% in each. To the extent those accounts described the same period and circumstances, they could not both be accurate. The inconsistency gave the court a concrete reason to question the party’s credibility.
That is why earlier filings deserve continuing attention: cross-complaints, opposition papers, declarations, discovery responses, and even case management statements. They do not all carry the same evidentiary weight, and not every changed position establishes dishonesty. But material contradictions can guide further discovery and, where admissible, support cross-examination.
In my practice, I have repeatedly seen an early explanation become difficult to maintain as the record develops. Its significance may emerge at summary judgment, during mediation, or at trial.
Effective litigation strategy looks beyond the next hearing. A carefully chosen subpoena, question, or motion may produce little immediate satisfaction yet establish a fact—or preserve a contradiction—that carries considerable weight when the case is ultimately evaluated.
Explore our business and commercial litigation practice and our related discussion of when motion practice is worth pursuing.