When litigation involves substantial business assets, executive compensation, trust and estate matters, or high-net-worth divorces, discovery compliance is critical. Courts expect parties to conduct thorough, transparent searches for requested documents—and when records cannot be found, a Jackson affidavit may be required to explain why.

However, failing to properly execute a Jackson affidavit can have serious legal and financial consequences. In commercial litigation, employment disputes, matrimonial cases, and trust and estate litigation, courts punish inadequate or misleading Jackson affidavits with sanctions, preclusion orders, and even default judgments.

For business owners and high-income professionals engaged in litigation, understanding these risks is essential to protecting your legal position and avoiding costly penalties.

What Is a Jackson Affidavit and Why Do Courts Require It?

A Jackson affidavit is a sworn statement detailing a party’s efforts to locate requested discovery materials. It must outline:

• Where the documents were likely to be kept.
• What steps were taken to preserve them.
• Whether they were routinely destroyed.
• Who conducted the search and how it was performed.

The affidavit is not optional, courts require it when a party claims that documents cannot be found. If a Jackson affidavit is vague, misleading, or incomplete, judges may impose severe penalties to prevent abuse of the discovery process. For more information about Jackson affidavits, see our prior post here.

Penalties for Failing to Comply with Jackson Affidavit Requirements

New York courts have repeatedly sanctioned parties for providing inadequate or deceptive Jackson affidavits. The penalties can be severe, including:

1. Striking a party’s pleadings (dismissing the Complaint or Answer). One of the harshest penalties is a court striking a party’s pleadings, meaning the case is effectively lost before it ever reaches trial.

• In Citizen Watch Co. of America, Inc. v. Zapco 1500 Investment, L.P., the defendant submitted a Jackson affidavit that was:
  • Vague and lacking details about search efforts.
  • Contradicted by previously produced evidence.

As a result, the court struck the defendant’s answer, severely limiting its ability to defend itself.

• In Lynx Cap. Partners of NJ, LLC v. Bayes Cap. LLC, the court went even further, striking the defendants’ answer, entering a default judgment against them, and awarding attorneys’ fees because they repeatedly failed to comply with discovery orders and provide Jackson affidavits.

2. Default judgment (automatically losing the case). If a Jackson affidavit fails to convince the court that a good-faith search was conducted, a judge may grant a default judgment to the opposing party.

• In Tsung Tsin Ass’n, Inc. v. Zhu, the defendant repeatedly ignored court orders to provide a Jackson affidavit. As a result:
  • The court struck the defendant’s answer.
  • Awarded attorneys’ fees to the plaintiff.
  • Allowed the plaintiff to file a motion for default judgment, putting the defendant at a severe disadvantage.

3. Monetary sanctions and attorney’s fees. Courts do not tolerate misleading or incomplete Jackson affidavits, and financial penalties are common.

• In Lynx Cap. Partners, defendants were not only sanctioned but also ordered to pay the opposing party’s legal fees, significantly increasing their financial exposure.
• In Tsung Tsin Ass’n, the court granted attorneys’ fees to the plaintiff, punishing the defendant for failing to comply with the Jackson affidavit requirement.

4. Preclusion of key evidence. If a party submits an insufficient Jackson affidavit, the court may prevent them from introducing critical evidence at trial.

• InJackson v. City of New York(the case that established the Jackson affidavit rule), the city’s failure to comply led the court to preclude the city from contesting an important issue in the case—severely damaging its defense.

• In Citizen Watch Co., because the Jackson affidavit was deficient, the court refused to allow the defendant to rely on certain records—crippling its case.

How to Avoid Jackson Affidavit Penalties

Business owners, executive professionals can minimize the risk of Jackson affidavit-related sanctions by taking proactive steps:

1. Conduct a thorough document search before discovery begins:

• Engage litigation counsel early to ensure all relevant records are properly stored and retrievable.
• Use legal technology and e-discovery tools to streamline document searches.

2. Ensure a Jackson Affidavit Is detailed and transparent:

• Courts will scrutinize vague affidavits—ensure that every search effort is well-documented and explained.
• If records were routinely destroyed, be prepared to provide corporate retention policies as evidence.

3. Avoid contradictions with other discovery submissions:

• If documents previously existed but are now unavailable, explain why and how they became unavailable.

• Ensure that Jackson affidavits do not contradict other filings, emails, or produced documents.

4. Use a Jackson Affidavit to show good faith compliance:

• Courts recognize legitimate efforts to locate missing records—a properly drafted affidavit can prevent sanctions.
• In Patel v. Patel, the defendant avoided penalties by supplementing discovery efforts and demonstrating transparency in the affidavit.

Jackson Affidavits: A Double-Edged Sword in High-Stakes Litigation

For businesses, executives, and high-net-worth individuals, Jackson affidavits are both a tool and a risk. When used correctly, they can demonstrate good faith and protect against discovery sanctions. However, if handled improperly, they can lead to serious legal consequences, including losing your case before it reaches trial, financial penalties, and exclusion of critical evidence.

For more information about Jackson affidavits, see our prior post here.

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.