What to Address Now in Commercial Litigation Cases?

A litigation hold is not optional; it is a court-enforceable duty. The hold must be communicated clearly to all employees, contractors, and third parties who may possess relevant documents. Courts in the Southern District of New York and state courts throughout New York routinely impose sanctions, adverse inferences, or fee-shifting orders when parties fail to implement timely holds. The practical significance is that a judge may instruct the jury to assume that destroyed evidence would have supported your opponent's case, effectively handing them victory on that issue without trial. This is a catastrophic outcome that is entirely avoidable with prompt, documented action.

Today, most commercial disputes involve electronic stored information (ESI). Email, instant messages, cloud storage, and metadata are all discoverable. You must know where your data lives, who has access, and whether you can retrieve it cost-effectively. Do not wait until discovery requests arrive to investigate your ESI infrastructure. Early ESI assessment prevents the scenario where opposing counsel demands millions of emails and your IT team discovers that retrieval will cost $100,000 and take six months. Discuss ESI protocols and cost allocation with your attorney now, before the other side files a motion.

If your case qualifies for New York's Commercial Division (typically cases exceeding $100,000 involving business disputes), filing there offers significant procedural advantages. The Commercial Division operates under accelerated scheduling rules, has judges with commercial expertise, and generally discourages extended discovery wars. The practical significance is that Commercial Division cases often resolve faster and with lower discovery costs than general civil litigation. However, not all disputes qualify, and the other side may resist your effort to stay in Commercial Division if they believe a different forum favors their position. Understanding whether your case meets the threshold and filing in the right court from the start prevents costly jurisdictional battles later.

Federal Rule of Civil Procedure 26(b)(1) and its New York equivalents impose a proportionality requirement: discovery must be proportional to the needs of the case, considering the amount in controversy, the importance of the issues, and the parties' resources. This rule is a powerful tool to push back against unreasonable demands. When opposing counsel requests the entire contents of your servers or depositions of twenty witnesses, cite proportionality and propose reasonable alternatives. Courts increasingly enforce this doctrine and will sanction parties who ignore it. Raising proportionality arguments early, in writing, demonstrates good faith and positions you favorably if discovery disputes reach a judge.

Ask yourself: what is the best outcome I can realistically achieve, what is the worst outcome, and what is the most likely outcome? If the best outcome is $500,000 in damages but the case will cost $250,000 to litigate and carries a 40 percent risk of losing entirely, the math may not justify proceeding. Conversely, if the case involves a matter of principle that affects your company's reputation or future business relationships, financial analysis alone is incomplete. In-house counsel should present this analysis to senior management and board-level decision-makers, not make it unilaterally. Document your reasoning so that later, if the case does not proceed as hoped, you can explain that the decision was reasonable at the time based on available information.

Even before trial, you should be thinking about appeal. If you lose at trial, your ability to appeal depends on whether the trial record contains a clear error by the judge or whether the verdict is so against the weight of the evidence that reversal is warranted. This means objecting clearly at trial, making a complete record of your legal arguments, and preserving issues for appeal through timely motions. Many cases that could have been won on appellate litigation are lost because the trial attorney did not preserve the record. If your case involves novel legal issues or high stakes, discuss appellate strategy with counsel now and ensure your trial approach supports your appellate options.