Suppose a contract exists in which defendant D has indemnified party E. D and E currently dislike each other. Third-party plaintiff P, in a liability matter arising (indirectly) out of the contract, has sued defendant D. He could have chosen to sue E in addition to or instead of D, but he didn't; only D.

D requires documents from E in order to prepare the defense. But party E, out of spite, refuses to provide them. D does not want to have to subpoena E, because it would reveal to the plaintiff that D and E are not on good terms; moreover, the plaintiff has not brought E into the case at all and D would rather just keep them out of it entirely.

Does D have any other recourse against E in this matter? Does this possibly constitute bad faith on the part of E?


D should be subpoenaing anything and everything they need from anyone and everyone, including E. No matter how good terms you are on, if you are involved in a lawsuit you should not be relying on anyone's good faith to supply you what you need.

Suppose you ask nicely and they say yes but, for whatever reason, they don't supply them by your court date. Without a subpoena, if you ask for a continuance the judge will say "tough t*^%^$s"; with a subpoena they will say " Yes certainly, oh, and Mr Sheriff, here is a warrant for the documents, go and get them for me please. Oh and a warrant for the arrest of the person who ignored my subpoena." Where do you want to be?

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  • What will it mean, in layman's terms, for a party offering their services (call it consulting services on the sale of biz) if the clients ask for an indemnification clause to be removed? Thx. – Sizzle Oct 28 '19 at 16:49

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