For the small business owner, the liberal availability of pre-trial discovery is one of many risk factors inherent in litigation.
Defenses to pre-trial discovery (i.e., legal means that can be used to justify a refusal to comply) are very limited. The U.S. Constitution's right against self-incrimination allows defendants in criminal cases to refuse to testify in pre-trial discovery or in the trial itself. However, the right against self-incrimination simply does not extend to a private civil action.
On the other hand, if something is truly irrelevant and could not lead to other relevant information, a party could refuse to answer a question or turn over a copy of a document. Nevertheless, this defense rarely applies, partly because the courts broadly construe relevance in itself.
In addition, attorney-client privilege will represent a solid defense, if it applies at all. It will apply to private, confidential communications between an attorney and client. Neither the attorney nor the client can be compelled to reveal such communications. Protected communications can take the form of person-to-person communications, telephone calls, letters, etc.
Be cautious, however. The law limits this privilege to private, confidential communications. The privilege may be lost, for example, where the communication is made in an open area within the hearing of other people, or in a private area within the presence of other persons not connected to the case.
For instance, if in a deposition a party was asked the nature of his discussions with his attorney, the party could refuse to answer the question. Of course, in most cases, the other party, aware of the privilege, will steer clear of these types of questions.
In short, the courts broadly construe the right to pre-trial discovery and the use of pre-trial discovery tools, while defenses are narrowly construed. As a result of the consequences of pre-trial discovery, a party may be forced to reveal the very evidence necessary for the other party to secure a win.
This underscores the importance of having a plan for pre-trial discovery.