Expert Column: How Supermarkets Can Get Through a Lawsuit ... Alive

By Amber N. Morton

Lawsuits are on the rise in the supermarket industry nationwide which can be a scary and overwhelming experience for store operators. Suits typically fall into two categories: employment related (such as discrimination, harassment and wrongful termination), and breach of contract (for example, a vendor has a dispute with the terms of an agreement). Your best approach toward handling any cases filed against you consists of knowledge of the legal environment beforehand and timeliness when preparing your response.

Keep Good Records

Once served with a lawsuit, you legally must maintain all documents, files and communications, including print and electronic. Review your document retention policies and ensure you are retaining all documents. Deleting information later determined to be necessary can cause you more legal hassles later.

Know What Happens in Discovery

After a lawsuit is filed, the case proceeds toward discovery and depositions. In discovery, attorneys on both sides gather information by sending each other requests for information in the form of interrogatories, requests for admissions and demands for documents. Your attorney will review these and help you prepare your responses.

If you get a demand for documents, your attorney will review the records to determine responsiveness and whether to disclose the document. Records may be withheld from production because:

• The information in them does not respond to questions posed by the opposing attorney
• They are privileged or confidential. Exchanges between you and your attorney fall into this category.

Written discovery usually precedes depositions. During depositions, attorneys question witnesses, which will likely include the person most knowledgeable at your company regarding the lawsuit and the person suing you, in person and under oath. The lawyers thereby learn more about information previously provided in discovery and other key topics.

Obey Deadlines

A lawsuit carries a deadline to respond. If you notify your attorney of the suit as soon as possible, they will have the time needed to evaluate the claims, obtain initial information, and, if applicable, challenge the complaint in court. If, on the other hand, you fail to respond to a lawsuit, a default judgment can be entered against you.

Prepare for the Courtroom

First, know that the lawsuit filed against you may not even go to trial. Many lawsuits are resolved beforehand, sometimes with a settlement or dispositive motion like a motion for summary judgment.

While waiting for a trial, you and your attorney will discuss the best course of action for your company. Your attorney will give you an overview of the claims, your potential liability (if any), and other relevant information. Your attorney will give you a detailed estimated budget of the cost of litigation, plus regular updates to the budget, to help you decide whether to take a case to trial. It's then up to you to weigh the costs, including anticipated attorney’s fees and court costs, against the benefits of going to trial.

Before a trial, a lawsuit goes through a series of hearings. Some involve minor details such as scheduling dates while others concern more complex matters, such as dispositive motions. During a hearing, your attorney generally handles communicating with the court. Your attorney will provide you with upcoming hearing dates, but for the most part, unless otherwise instructed, it's up to you whether you wish to attend.  If you do opt to attend court hearings, please keep in mind your case will likely be one of many on the judge’s calendar for the day. Cases are called in the order set by the judge, so expect to wait.

Your presence at other pretrial meetings may be required. Your attorney will tell you about these. You also must go to a trial.

No market wants to get caught up in the nuisance of a lawsuit or spend money on attorney’s fees. By being informed of the legal process in advance of the suit and following the rules for responses during, you and your attorney can resolve the matter in the best, most effective manner for you.

Amber Morton is an attorney with Carico Johnson Toomey LLP, a law firm that counsels the grocery industry and privately-held businesses in transactions and employment disputes. Morton can be reached at [email protected] or 310-545-0010.