Litigation 101 for eDiscovery Tech Professionals: Initiating a Case: Defendant’s Response

By: Jane Gennarelli

** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here and here to go to the first four posts in the series.**


In last week’s post we covered the first step in a lawsuit – filing a complaint with the court and serving it on the named defendant(s).  The defendant needs to respond within a certain number of days (the time to respond depends on the court and is usually 20 to 30 days).  Typically the defendant responds in one of two ways:

  • Filing a demurrer or a motion to dismiss:  This requests that the case be dismissed on the grounds that even if the facts outlined in the complaint are true, there is no legal basis for a lawsuit.  This results in a hearing before a judge who makes a ruling.  If the case is not dismissed then the defendant must respond with an answer to the complaint.
  • Filing an answer:  The defendant admits or denies some or all of the facts and allegations asserted in the complaint and sets forth affirmative defenses (affirmative defenses are those for which the defendant has the burden of proof).

It’s not always this straightforward though.  Here are a few situations that might occur in the early stages of a lawsuit:

  • Counterclaim:  This is a claim made by the defendant against the plaintiff that aims to turn the tables. The defendant basically claims that it is the injured party and provides facts and allegations in support of its position.  In some courts (including Federal court) a counterclaim is made in the defendant’s answer to the complaint.  In some courts it is filed as a separate document.
  • Cross-claim: This is a claim made by a party in a lawsuit against a co-party.  For example, when there are multiple defendants in a lawsuit, they might disagree about who is responsible for what, and one may file a cross-claim against another.
  • Third Party Claim:  Sometimes a defendant in a lawsuit may believe that another third party not named in the lawsuit is really responsible and will file a claim seeking to enjoin that party in the lawsuit.

Once the complaint and answer are filed and the parties are established, the lawsuit moves forward.  In the next posts in the series we’ll cover establishing the rules for moving forward in a case and the discovery process. Please let us know if there are specific topics you’d like to see covered in this blog series.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

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Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

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Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at

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