Master the First Moves in Litigation for Courtroom Advantage

Early decisions in high-stakes litigation can shape both the courtroom and public narratives, yet critical first-move strategies are underutilized.

Why It Matters

• Setting the Tone Early: Find out how pre-litigation discovery builds compelling, evidence-backed cases.

• Controlling the Narrative: Learn how preemptive filings can influence not only legal outcomes but also public opinion.

• Detailed Insights on Strategy: Gain valuable advice on making critical first moves that can define the trajectory of your case.

Don’t miss Epstein Becker Green attorneys Sierra Hennessy, David Clark, and Alex Barnard as they explore the benefits, risks, and nuances of these advanced legal strategies.

This episode of Speaking of Litigation is packed with actionable insights for general counsel and legal professionals navigating complex litigation and provides real-time examples from high-profile disputes, including Blake Lively’s and Justin Baldoni’s cases.

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Transcript

[00:00:00] Sierra Hennessy: Imagine this scenario, your client receives a threatening demand letter promising damaging public allegations unless a steep settlement is paid. The stakes: their reputation, business, and livelihood. What if you could take control of the narrative before the story even unfolds? Today we're exploring the strategy of preemptive legal filings and how pre-litigation discovery steps can shape the outcome of high stakes disputes.

[00:00:23] Sierra Hennessy: Hi everyone. I'm your host today, Sierra Hennessy. I'm an attorney at Epstein Becker & Green in the litigation practice in the New York office. Speaking of high stake disputes, one of the biggest disputes to hit the headlines this past year are the lawsuits involving Blake Lively and Justin Baldoni, which involve claims including sexual harassment, retaliation, and defamation.

[00:00:43] Sierra Hennessy: These lawsuits have provided a masterclass in how pre-litigation discovery can dictate the narrative of a case. Another strategy for consideration is a preemptive filing, which can also control the narrative of a lawsuit and drive the outcome of a case in ways that just don't happen if you sit and wait.

[00:00:59] Sierra Hennessy: So today we're unpacking why acting early matters, how pre-litigation discovery steps can strengthen your case and build your public reputation, and what lessons you can apply from these high profile tactics to your own practice. In other words, if timing is everything, how do you make the first move count?

[00:01:17] Sierra Hennessy: Joining me today for this discussion is David Clark, a member of the firm working here with me in our New York office. Hello, David, and thanks for being here.

[00:01:25] David Clark: Hi, Sierra. Thanks very much for having me on. Glad to be here.

[00:01:29] Sierra Hennessy: Also, joining us is Alex Barnard, a member of the firm who is also in New York.

[00:01:33] Sierra Hennessy: Welcome, Alex, and thanks for joining us today.

[00:01:35] Alex Barnard: Glad to be with you. Thank you.

[00:01:37] Sierra Hennessy: So we're going to start this discussion off by talking about pre-litigation discovery. David, could you explain to us what exactly is pre-litigation discovery?

[00:01:46] David Clark: Sure thing. It's really a little used technique in the world of litigation.

[00:01:52] David Clark: But it's one that's important to remember. It's used when a potential litigant is investigating or evaluating possible claims that could be asserted in a lawsuit.

[00:02:04] Sierra Hennessy: And how does pre-litigation discovery aid in the filing of a lawsuit?

[00:02:08] David Clark: Well, it gives the plaintiff more specific and perhaps crucial information that will enable them to make an informed decision about whether to file that lawsuit and/or perhaps even who to name as a defendant in that lawsuit.

[00:02:25] David Clark: So it's available when there's a certain set of facts that exists that comprises an actionable offense for the plaintiff, yet more information is needed to draft a complaint or to to file the litigation.

[00:02:42] Sierra Hennessy: How can pre-litigation discovery and early fact gathering strengthen a party's legal positioning?

[00:02:48] David Clark: Well, there's a few common ways that it's used. One is to determine the identity of defendants in the potential case. Another is to perpetuate testimony. And just more generally, it may be available to help frame the issues in the complaint, but that's a little more tricky.

[00:03:16] David Clark: Courts don't let potential plaintiffs go too far and, you know, conduct a fishing expedition in that regard. And if I may, the first of those three categories that I just mentioned, determining the identity of a defendant, I've got a little movie clip to play here that will show possible circumstances in which pre-litigation discovery might have been necessary.

[00:03:41] David Clark: The movie clip is from A Civil Action, which is a movie I think from the 1990s, based on a book by Jonathan Harr. Stars John Travolta as a plaintiff's lawyer, and he's considering bringing a class action on behalf of certain residents of Woburn, Massachusetts, who believe that they're being harmed by groundwater contamination.

[CLIP PLAYS]

[00:04:35] David Clark: All right, so in that clip you'll see that Travolta's character, upon seeing the various sources of contamination, he actually sees a truck driving by with the name of the company on the truck. So, you know, that was easy for him to find out the name of the defendant for the case that he's planning to file.

[00:04:58] David Clark: But what if the defendant's names are not so conveniently on the sides of trucks that are driving past you as you hide in the woods? You know, for that case, you can perhaps go to a court and ask for a deposition or perhaps documentary discovery in advance of filing a lawsuit and get the information that way.

[00:05:27] Sierra Hennessy: So you mentioned going to court. What are the methods for obtaining pre-litigation discovery?

[00:05:32] David Clark: That's the key point. You do have to ask a court for pre-action or pre-litigation discovery. You cannot, just as a lawyer, serve a subpoena or otherwise demand information from an individual or a company.

[00:05:48] David Clark: Many states have particular statutes or rules that may allow for pre-action discovery. One example is New York, CPLR 3102 (c), and that provides before an action is commenced, disclosure to aid in bringing an action to preserve information or to aid in arbitration may be obtained, but only by court order.

[00:06:15] David Clark: And the court may appoint a referee to take testimony. So, you know, that's how you do it in New York State Court. When you're seeking such discovery, you have to set forth a prima facie meritorious cause of action and describe what information you're still seeking, and also the application is made by a special proceeding as opposed to a full blown lawsuit commenced by filing a complaint.

[00:06:45] David Clark: Also, Sierra, there's another method in the federal rules to get pre-action discovery, and that's Federal Rule of Civil Procedure 27, depositions before action or pending appeal. So you can imagine the scenario where you're considering bringing a lawsuit for harm that you may have suffered, but a key witness is in very poor health.

[00:07:08] David Clark: Or maybe is about to leave the country permanently. So perhaps even before you file a lawsuit, you may wish to take testimony from that person in order to lock it in and preserve it in the unfortunate event that the person passes away or otherwise, you know, becomes unavailable. So that's another method that you can use to get pre-action discovery.

[00:07:30] Sierra Hennessy: Now David, as you demonstrated with the movie clip, pre-litigation discovery is often used for limited purposes such as to identify the proper party to sue. However, with regard to the lawsuit filed by Blake Lively that I previously mentioned, pre-litigation subpoenas were used to gather evidence that would strengthen her claims because she was able to obtain text messages in which Mr. Baldoni’s team was discussing things such as burying Ms. Lively, she was able to include these messages in her initial complaint filed back in December of 2024 with the California Civil Rights Department. And the inclusion of these text messages in her complaint gave some evidentiary support to her claims.

[00:08:09] Sierra Hennessy: So in other words, Ms. Lively's use of pre-litigation discovery highlighted one of the benefits to this pre-action discovery. Are there any other benefits to pre-action discovery?

[00:08:21] David Clark: You know, not really. We've kind of discussed them. It's really to get, to provide the potential litigant with more information so that they can make the decision about whether to even bring the lawsuit or to give them the specific information that they need to bring the lawsuit.

[00:08:41] Sierra Hennessy: So can you explain why pre-litigation discovery isn't more common?

[00:08:45] David Clark: A couple of the reasons that it's not more common is it is kind of a high burden to get pre-action discovery. As a rule, it can't be used as a fishing expedition, and it cannot be used to build the facts that constitute a cause of action.

[00:09:04] David Clark: You need to have many of those facts in support of a cause of action before you can seek, successfully seek, pre-action discovery.

[00:09:14] Sierra Hennessy: So as we've discussed, pre-litigation discovery is just one tool an attorney has to prepare for a potential lawsuit and to shape the narrative of a case. Another tool that is also sometimes underutilized by attorneys is to consider a preemptive filing.

[00:09:29] Sierra Hennessy: Alex, can you tell us what is a preemptive filing and how does it turn the tables on a traditional legal action?

[00:09:34] Alex Barnard: Sure. If you represent an entity, a person, a company that's going to be sued, the sort of conventional approach might be to kind of sit back, wait for the filing, defend the merits in your normal course, and hope that you get to a good outcome.

[00:09:54] Alex Barnard: That typically leaves you on the back foot, so to speak. And the issue with that conventional approach is that the damage to your client's reputation or even financial damage, damage to transactions, et cetera, may be in place and permanent by the time you get to the end of the litigation or arbitration matter that you're dealing with.

[00:10:17] Alex Barnard: So the concept here is, you know that you're going to be sued, you know that it will be damaging, you know that it's not true, and perhaps the plaintiff is using that as leverage for a large settlement demand. The concept is that you file first. You sue the plaintiff first. You may seek a declaratory judgment in order to undercut the claims, to out them, and to put yourself on the front foot, so it's turning the defendant into the plaintiff.

[00:10:52] Sierra Hennessy: Got it. So can you give us a quick example of a scenario in which you might recommend a preemptive filing to one of your clients?

[00:10:59] Alex Barnard: Sure. I think it's always a difficult decision and it needs to be considered carefully, but I think in a scenario where you have demonstrably false allegations, particularly if they're salacious, of someone's misconduct that are being made, and along typically with a very large settlement demand, as I mentioned. And the threat is that if you don't pay up, the filing is going to happen. And you know the damage that you're going to, that your client's going to experience is really irreparable.

[00:11:36] Alex Barnard: In that kind of a situation, you coming forward and filing that suit could make sense. It helps you to control the narrative, at least your side of the story comes first. There is a question of being, you know, whether you create a good first impression, that if you brought this case, you must be pretty confident that you're right.

[00:11:59] Alex Barnard: And, you know, I think it makes the other side's job a bit harder. Because now they're not operating in secret. They're now in an active matter. So those would be the kinds of situations where you would consider it.

[00:12:15] Sierra Hennessy: So how can pre-litigation discovery steps inform the decision to file first?

[00:12:21] Alex Barnard: Well, I think that that really highlights the need to be sure, to have the facts, and to be sure that you're right. And that that would be, if you have pre-litigation discovery, that can help you to learn whether it makes sense to preemptively file. If you have time for that. The other concept is a thorough investigation, and certainly a review of any and all relevant documents, because obviously you don't want to file and then it turns out there are documents that completely undercut your case.

[00:12:51] Alex Barnard: So I think you really want to try to understand the facts as well as you can, as quickly as you can.

[00:12:56] Sierra Hennessy: So, in line with what you just said, when is controlling the timing of a legal narrative essential?

[00:13:02] Alex Barnard: Well, I think you see it in a lot of cases, obviously the ones that are in the press you mentioned. There are others, one case involving Jay-Z, where these reputational concerns are there. The question is, do you want to be in a position where the other side, the plaintiff, gets to say their piece, they file their complaint, and then they can make any kind of public statement they want to that's within the four corners of their filing. And your ability to do so is limited. You have to answer the complaint and then you can respond to the press in that way.

[00:13:39] Alex Barnard: So it's very much a narrative that's negative upfront. And so that timing can be important. I think it can be important in court, but also in the court of public opinion.

[00:13:51] Sierra Hennessy: Now kind of further discussing, you know, the need to control the narrative of a high stakes dispute. When we're thinking about things like Justin Baldoni's interactive lawsuit website, how should litigators approach controlling the narrative in such high profile cases?

[00:14:07] Alex Barnard: Well, it's interesting. His team, as I understand it, put on the internet a 168-page listing of all of the text messages and underlying communications in their case. I think it reflects an effort to control the narrative and to demonstrate confidence that he's right.

[00:14:30] Alex Barnard: And that his character has been unfairly attacked. On the other hand, when you look at the filings on the other side, you see some of the messages you mentioned before that may be unhelpful. So that, I think, highlights the need to sort of try to boil the ocean, or boil the pond, to the extent that you can so that you don't get surprised in your efforts to control the narrative.

[00:14:59] Alex Barnard: Right? Litigation is always about controlling a narrative, but I think that this is about the public's view of it.

[00:15:12] Sierra Hennessy: So we talked about the benefits of pre-litigation discovery, so let's also discuss the benefits of preemptive filings, which we've kind of been touching on, but why would you consider a preemptive filing?

[00:15:23] Alex Barnard: In addition to controlling the narrative and creating a first impression, I think it comes down to a situation where you are as close to a hundred percent sure you're right. And the damage is to your reputation or to your business is going to be so severe that allowing the other side to have that first mover advantage, which does exist in litigation, is simply an unacceptable situation, and I think it's certainly something to be careful of, but there are cases where it's the right thing to do. And we see in cases that have come out over the past decades or so, some interesting lessons about cases where it might be helpful and maybe some cautionary tales as well.

[00:16:16] Sierra Hennessy: Now you mentioned reputation. What are the reputational advantages of taking the first step in public and in a legal forum?

[00:16:24] Alex Barnard: The advantage reputationally is to demonstrate confidence. You're always concerned if you're a defendant in a case that, you know, the other side has their say. Then at least to the press, and to a certain extent in court, you're simply denying it.

[00:16:45] Alex Barnard: In the court of public opinion that may reflect, you know, that's what they all say, right? Everyone says they didn't do it and they're not guilty. But it's a little bit separating you from the normal defendant to have come out on your own unbidden, so to speak, and tell your side of the story. So I think that helps. But again, if you get surprised, it could be a negative as well.

[00:17:07] Sierra Hennessy: You also mentioned some recent cases. What are we seeing in the case law and are there any benefits or lessons that we can take away from these cases?

[00:17:14] Alex Barnard: There are, and they're interesting and I'll try not to go into too much detail. One of the things that a preemptive filing could provide is the benefit of getting early discovery. And in the MicroStrategy versus Convisser case, that was a situation where there was a lawsuit filed, preemptive filing by the company against the former head of HR seeking a declaration that she has no claims against the company and trying to determine whether she took confidential information.

[00:17:50] Alex Barnard: She had an EEOC filing going at the same time. And ultimately, although the court felt that the preemptive filing by MicroStrategy was pretty aggressive, they ultimately got her deposition. And they got it upfront. And so to me that's an example of a benefit. Another case called Leon against IDX Systems, which was in the Ninth Circuit, is a situation where there was a preemptive filing against an individual. And ultimately they found in early discovery that the employee had deleted over 2000 files from his work computer. And had used the laptop to look at inappropriate materials on the internet, which led to a quick resolution.

[00:18:43] Alex Barnard: So the short of it is you may get access to information that's helpful. Another lesson learned is back to the point of being very clear that you are in a position where you should prevail. And so, you know, where you have those facts and it's really clear, a declaratory judgment in a preemptive filing can make sense.

[00:19:06] Alex Barnard: And that, for example, if you have a settlement agreement, and you're still being threatened. Seeking a declaratory judgment can be effective. And the Kellogg case recently in the Sixth Circuit was clear on that point. A cautionary tale I think is recognizing that declaratory judgements, particularly under the Declaratory Judgment Act, that jurisdiction is discretionary.

[00:19:32] Alex Barnard: You may file something, and if, to the extent you're relying on that law, you may find the court decline jurisdiction. And so it's very important to look at the facts and consider that courts don't like forum shopping. They don't want needless duplication of lawsuits or duplication of efforts, generally speaking.

[00:19:59] Alex Barnard: So that's something that's very important. On the other hand, another cautionary tale really is about whether, in making a preemptive filing, does it look like the client is sort of silencing someone or doing what's called an anticipatory filing. So trying to deprive the plaintiff of the forum that would've been appropriate for the case where they would've filed it.

[00:20:22] Alex Barnard: So ultimately those are things to think about because they come back to say, well, you know, you're trying to silence my client. And so, that can have concerns from a jurisdictional perspective. And also could fuel a motion to dismiss. And the last thing I think you want to do is file a preemptive strike, lay all your cards on the table and then find that your case is dismissed. That is not helpful at all, obviously. Maybe one last one is sort of publicity. So sometimes people want to file preemptively, but also not reveal all their cards. And there's a case that was filed last fall, which is very interesting.

[00:21:08] Alex Barnard: It's in Mississippi federal court. It's a John Doe preemptively suing a Jane Rowe for a declaration that her claims against him for sexual harassment are not true, and to enjoin publication. And obviously, you know, expectedly, Jane Rowe has moved to remove the veil of secrecy from Mr. Doe and to have him be publicly named. It remains to be seen how that's going to play out, but it's certainly an interesting one as well.

[00:21:42] Sierra Hennessy: So you talked a lot about the benefits and a few potential concerns to keep in mind when considering a preemptive filing. So let's discuss some of the potential challenges and risks.

[00:21:53] Sierra Hennessy: What are the potential downsides to consider when you're thinking about a preemptive filing?

[00:21:57] Alex Barnard: one of them would be, what if you have an oopsie? In other words, that's my legal term for you thought you were going to get sued, but you were wrong. And so now you took something that didn't need to be made public and you made it public.

[00:22:12] Alex Barnard: And even if you're spinning that narrative in favor of your client, that may not be the best hair day that they ever had. So that's one question. Back to controlling the narrative as well. You know, that could end up being a temporary advantage, because you can't control what the press says.

[00:22:35] Alex Barnard: And ultimately the other side is going to have something to say as well. I think you want to make sure that you're not deemed to be forum shopping, as I mentioned before, because that could be a basis to get dismissed. So again, that's a downside. I think you have to think about the, again, the court of public opinion.

[00:22:58] Alex Barnard: If there's a view that you're kind of trouncing on the little guy, that’s not necessarily helpful. I think another thing is if you have insurance, many times insurance companies will not cover a preemptive filing. So that's something to think about. So I think that the takeaway is you need to think through each of these things before moving forward and make sure that you understand and that your client understands the pros and the cons.

[00:23:28] Sierra Hennessy: You mentioned a possible oopsie if the threat of litigation was empty. How might a premature action backfire?

[00:23:35] Alex Barnard: Let's say it's a reputationally significant potential claim that you're facing. Maybe it's harassment or something worse, potentially, or misconduct, anything. And you go out and you file it.

[00:23:49] Alex Barnard: Now you've made public the fact that there was such an allegation that was ever made, and that you've kind of telegraphed that you care about it because you went to court and filed it publicly. And so now that's in the narrative. Now it comes in with your denial, but it also raises the issue whether you want to be airing dirty laundry, so to speak, if you don't have to.

[00:24:14] Sierra Hennessy: Are there any other risks in initiating an aggressive legal or public stance such as appearing retaliatory?

[00:24:20] Alex Barnard: Yes. I mean, I think, you know, there's the image of coming down on the little guy. There's the question of whether it's viewed as retaliatory. The person made a complaint and the next thing they know they're getting hauled into a public court proceeding that they did not file themselves.

[00:24:40] Alex Barnard: So there's always the possibility to argue retaliation and I think, you know, obviously anti-SLAPP statutes, which need to be considered as well, to the extent that there could be any argument of chilling speech, et cetera. So I think that those are real concerns and really need to be weighed in the mix to make a good decision here.

[00:25:05] Sierra Hennessy: So David and Alex, I'll throw this next question to either one of you. Considering how stars like Justin Baldoni and Blake Lively have publicly navigated crisis PR and legal filings to shape their sides of the story, what broader lessons can attorneys and professionals apply in representing their clients?

[00:25:23] Alex Barnard: The lesson is, I think, to really do your homework and investigate before you go out there with statements. Obviously, you know, discovery is broad-ranging, it's a two-way street. Both sides get access to information, in that case some of it was pre-filing.

[00:25:45] Alex Barnard: But when you look through all of the communications, the question in my mind is whether they really point to one party's favor or the other. But really to have spoken with all the people involved, and make sure that there aren't going to be text messages that maybe you didn't even get copied on, that are going to show up in the record and surprise you.

[00:26:01] Alex Barnard: So I think they really have to do a lot of homework before considering moving forward.

[00:26:08] Sierra Hennessy: So David, just to sum everything up, when considering whether to conduct pre-litigation discovery, is there anything else you think an attorney should keep in mind?

[00:26:16] David Clark: One other key point is that pre-litigation discovery does not extend or toll the time in which a plaintiff needs to bring a cause of action under the statute of limitations.

[00:26:29] David Clark: So, a potential plaintiff needs to get this pre-action discovery done before that deadline comes around, and where the statute of limitations is a concern, a possible option is for the potential plaintiff to consider filing a complaint that names a John Doe defendant and simultaneously make a disclosure motion.

[00:26:56] David Clark: I guess it's not really pre-action at that point, if the complaint is also being filed at the same time. But you know, that's one way to avoid being time barred.

[00:27:08] Sierra Hennessy: And Alex, I'll ask you the same question, when considering whether to file a lawsuit preemptively, is there anything else an attorney should keep in mind?

[00:27:15] Alex Barnard: Yes,I think the key takeaway is that it should be a tool in your toolkit. It should be something that you evaluate much like pre-action discovery. Maybe it's not often used, but it is a relevant tool to have when a client comes to you with a concern, whether it be, you know, they feel they're going to be sued or whether they want to consider whether to sue someone else, et cetera.

[00:27:40] Alex Barnard: But it's something to really consider, especially in view of the fact that, you know, discovery costs have skyrocketed and been very difficult to deal with. If you can take care of things upfront, to a certain extent, if you can find information that's helpful, if you can maybe even make a matter go away through some preemptive steps, that's obviously something you want to consider.

[00:28:07] Alex Barnard: But it may not be right for every occasion, but it can be effective if done surgically.

[00:28:12] Sierra Hennessy: So with the rise of highly publicized disputes and high stakes preemptive filings, how will courts and litigators adapt to balance the legal case with the public narrative? And could pre-litigation discovery and preemptive filings become an even more prominent tool in managing these high stakes disputes?

[00:28:30] Alex Barnard: With the internet, social media, and the speed with which information is flying around at all times, and an ever increasing number of news sources, I think that reputational harm, it takes very little time to occur. And so as a result, timing as they say, may sometimes be everything. And so it seems to me that the number of cases that may be appropriate for some, or either of these approaches is likely to increase over time.

[00:29:01] David Clark: I'll just add, in a word, yes. Certainly these tools in our toolkit of pre-action discovery and possible preemptive filing should definitely be considered in many cases these days.

[00:29:17] Sierra Hennessy: Well, thank you David and Alex for joining me today, and thank you so much to everyone in the audience for watching and listening.

[00:29:23] Sierra Hennessy: Please be sure to subscribe to Speaking of Litigation on YouTube or wherever you get your podcasts.

About Speaking of Litigation®

No business likes litigation. Lawsuits and trials can be stressful, unpredictable, and often confounding—even for battle-scarred business leaders. But they’re something almost every business must confront. The Speaking of Litigation® video podcast pulls back the curtain for an inside look at the various stages of litigation and the key strategic issues businesses face along the way. Knowledge is power, and this show empowers executives and in-house counsel to make better decisions before, during, and after disputes. Subscribe to Speaking of Litigation® for a steady flow of practical, thought-provoking insights about litigation from Epstein Becker Green litigators.

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