In high-stakes litigation, the discovery process plays a crucial role. This applies to business disputes, employment conflicts, matrimonial asset divisions, and trust and estate contests. Courts expect parties to conduct thorough searches for relevant documents, and failing to do so can lead to serious consequences. One important tool in complex litigation is the Jackson affidavit, a sworn statement detailing a party’s efforts to locate requested records.
If you or your business is engaged in litigation involving substantial assets, understanding when and how to use a Jackson affidavit can be crucial to protecting your interests. It is also just as important to learn how to avoid using one.
What Is a Jackson Affidavit?
A Jackson affidavit is a sworn statement filed in court to document a party’s efforts to locate and produce requested discovery materials. It is named after the case Jackson v. City of New York, where a plaintiff sought building maintenance records, and the court required the city to submit an affidavit explaining why the documents could not be produced.
Since then, Jackson affidavits have become an essential tool in commercial, employment, matrimonial, and trust and estate litigation. They help ensure that parties conduct a diligent and good-faith search for requested records.
When Are Jackson Affidavits Used?
Courts require a Jackson affidavit when a party claims it cannot produce certain documents in response to discovery requests. They are often used in:
- Business litigation: When financial statements, emails, contracts, or corporate records are missing.
- Employment disputes: When relevant HR files, performance records, or communications are not available.
- High-net-worth divorces: When one spouse alleges that business equity or financial records are inaccessible.
- Trust and estate litigation: When accounting records or historical estate planning documents cannot be located.
The affidavit serves as proof that a legitimate effort was made to find the requested materials, rather than an attempt to withhold evidence.
What Must a Jackson Affidavit Contain?
A proper Jackson affidavit must include:
1. Identifying where the records were likely to be kept, including databases, physical locations, file storage, or cloud platforms.
2. Describing the efforts made to preserve and locate the records. This outlines steps taken to secure and retrieve the documents.
3. Explaining whether the records were routinely destroyed, such as information on retention policies or data purges.
4. Specifying who conducted the search. This identifies the individuals responsible for reviewing relevant locations.
A vague or boilerplate affidavit will not suffice as courts expect a detailed and transparent account of the search process.
Potential Consequences of an Inadequate Jackson Affidavit
If a Jackson affidavit fails to demonstrate a good-faith search, courts may impose severe penalties, including:
- Striking pleadings: A party’s claims or defenses may be dismissed.
- Monetary sanctions: Courts may impose financial penalties for non-compliance.
- Preclusion of evidence: A party may be barred from introducing key evidence.
- Default judgment: In extreme cases, the court may rule in favor of the opposing party.
For example, in Citizen Watch Co. of America, Inc. v. Zapco 1500 Investment, L.P., a defendant’s Jackson affidavit was deemed insufficient because it lacked details about search efforts and contradicted earlier evidence. As a result, the court struck the defendant’s answer, severely impacting its case.
Strategic Benefits of a Well-Prepared Jackson Affidavit
A properly executed Jackson affidavit can:
- Demonstrate good-faith compliance with discovery obligations.
- Avoid court sanctions and protect a party’s legal position.
- Strengthen credibility by showing transparency in document searches.
- Prevent adverse inferences from being drawn against a party in litigation.
For example, in Patel v. Patel, the court found that while the defendant’s document production was deficient, the affidavit provided context and evidence of additional search efforts, which helped avoid sanctions.
How to Avoid the Need for a Jackson Affidavit
While a Jackson affidavit can serve as a last resort, proactive steps can help businesses and high-net-worth individuals avoid this burdensome process:
- Implement strong document retention policies – Ensuring corporate, employment, financial, and estate records are properly maintained can prevent discovery disputes.
- Early case strategy and litigation planning – Engage litigation counsel as early as possible to organize and review potential discovery materials before issues arise.
- Proactive compliance with discovery requests – Work with attorneys to conduct thorough internal searches before discovery disputes escalate.
- Preserve digital and physical records – Avoid automatic deletion of emails, contracts, or financial statements that may later be requested.
- Use legal technology for discovery management – Leveraging e-discovery tools can streamline document searches and prevent allegations of non-compliance.
Why High-Net-Worth Individuals and Business Owners Should Care
For business owners, executives, and professionals involved in litigation, failure to comply with discovery obligations can have devastating consequences, including damaging financial penalties, loss of legal leverage, and adverse rulings.
Working with an experienced litigation team ensures that document searches are conducted properly, risks are mitigated, and the need for a Jackson affidavit is minimized. In cases where one is required, an attorney skilled in complex litigation can craft a strategic, detailed, and court-compliant affidavit to protect your interests.
If you are involved in a business, employment, matrimonial, or a trust and estate dispute that may involve large assets, contact our firm today to ensure your case is handled with precision and expertise.
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This post is not intended as legal advice, but rather for educational purposes.