Pushing for the Documents You Need May Be Costly, but Not Pushing May Cost More
No one wants a trial, especially in business divorce litigation. Trials can be messy, expensive, and have a debilitating impact on the company. For example, a valuable CFO caught between warring factions of owners is a prime candidate to start circulating her resume. But a minority shareholder should not start down the road of oppressed minority shareholder litigation unless he or she is committed to following it through to the end.
Pushing for Documents You Need
That commitment means the shareholder is fully prepared to build leverage, follow through on threatened actions, and take whatever steps are necessary to create a position of strength from which to negotiate. If you are a shareholder on the outside of the company looking in, that often means you must press the company for a complete set of documents in electronic, native format – and keep on pressing until they comply.
Many times, it takes multiple motions with the court to get documents you can actually use. For example, motion number one is about not getting any documents. Motion number two is filed because they have finally responded, but the production is woefully incomplete. Motion number three is necessary because the documents have now been produced, but in an all-paper format – no native electronic files. (How hard is it to put QuickBooks on a flash drive?!) Then when the electronic production is finally made, it is still incomplete, so a fourth motion is necessary.
And don’t even think you can depend on the court to act forcefully and sanction such conduct. That usually doesn’t happen, and litigants often get away with tactics such as these. Their goal, of course, is to cause you to give up and decide it isn’t worth the legal fees to get every document you need. But the payoff is often worth it – because sometimes the purpose of such tactics really is to hide something.
Litigation Strategy Example
In one recent case, after much hiding of documents and many half-hearted productions, the majority shareholder mistakenly produced two sets of QuickBooks – the second because the password did not work on the first. However, we ultimately got the password to work on the first production, and many of the documents in that first production – the damaging ones, of course – had been wiped from the second production. This had a critical impact on the case, enabling a much more favorable settlement than we otherwise would have achieved.
Of course, this does not happen in every case. But the moral is, be persistent; or if you aren’t prepared to be persistent, rethink your strategy. If you can’t put yourself in a position to negotiate from strength, you should think about a different approach. An experienced shareholder dispute attorney can help you determine if litigation or negotiation is your best route forward. And a good business divorce attorney will tell you that litigation is simply a more aggressive way to conduct your negotiation – but one that requires you to follow through.