Trial Magazine

In the Brothers Grimm fairy tale Rumpelstiltskin, a peasant woman makes successively terrible deals with an imp, resulting in the woman agreeing to exchange her firstborn child for a pile of spun gold. The only way the woman can break the curse is by finding out the imp’s correct name. Much like the peasant woman in this dark tale, if you fail to state the proper name of the defendant in your complaint, your chance of success is greatly impeded. But identifying and properly naming the correct defendant can pose many challenges.

Even if you know where the injury occurred or suspect what may have caused the injury, you may not know what party to name in the complaint or what its actual corporate name is. Many defendants try to hide behind complicated corporate structures, practice groups, or shell corporations. For example, a company may operate a business under one corporate name, have an affiliated corporation that only exists to make payroll, and put the property liabilities under a third corporate name. Sometimes it will become clear only after you file suit that a company was named incorrectly or that a related but separate company retains the liabilities.

Though it can sometimes be difficult, proper naming is a critical component of litigation. And it’s important to know what resources—formal and informal—can help you determine the proper parties. With careful research, you’ll know which defendants to name at the outset—and when a dispute arises, which ones to fight to keep in the case.

Informal Discovery Tools

Depending on your jurisdiction, you may be limited in how many interrogatory requests you can send. Many states have fairly strict limits on the number of interrogatory requests a party can send. For example, Missouri and New York have recently amended their discovery rules to more closely mirror Federal Rule of Civil Procedure 33, which limits a party to sending 25 interrogatories, including subparts.¹

Even if you practice in a jurisdiction where limits are not an issue, there is always the risk that defense counsel will interpret broadly worded discovery as an unjust “fishing expedition.” Before sending formal discovery requests, it is a good idea to use informal resources to construct a general picture of your defendant.

Luckily, you have many free tools at your disposal. And even if you don’t find anything explosive for your case during the informal investigation, you will at least find the names of people to depose later or information that helps reveal the defendant’s corporate structure.

Some state websites allow you to search by registered agent, by corporate ID number, or by an individual’s name—all avenues that can give you valuable information.

Public records. Each state’s secretary of state keeps records of corporate status, registered agents, and sometimes the members of a corporation’s board of directors. In many states, these historical corporate filings are available to download for free online.² In addition to searching by business name, some states allow you to search by registered agent,³ by corporate ID number,⁴ or by an individual’s name⁵—all avenues that can give you valuable information for properly identifying a defendant in your case. These documents are a goldmine of information and sometimes paint a very different picture from the one the corporation may present to the court.

For example, in an asbestos case my firm handled, a defendant claimed it was wrongfully named and an affiliated but distinct corporation was the responsible party. But a review of public business records showed that both the defendant and the affiliated company had the same registration address, same board of directors, and same registered agent. When confronted with this at deposition, the defendant’s witnesses also admitted that both corporations pooled their revenue and paid employees from the same bank account. These publicly available documents established that the two companies were essentially one and the same.

Court records. Depending on your jurisdiction, you may be able to find other cases in which a defendant has been named by searching online
databases of court filings. With the advent of e-filing, searching through court filings has become easier than ever. A simple search on a filing website, such as File & Serve Xpress, may have important information such as proper naming conventions and service information.⁶

If the defendant you think is responsible has been sued for similar torts in the past, there is a good chance it’s the correct party. For example, if you are filing a claim against a large pharmaceutical company, it is likely the company has been sued for similar torts before. So if you have no alternative information, you can use the name and service information listed in previous litigation when filing your client’s claim.

Another resource is recorder of deeds offices. Land titles, birth and death certificates, and archival records are available to the public. Although accessing these records often costs money, the information contained in them can help you find out the proper identity of certain entities.

SEC filings. For publicly traded corporations, filings with the Securities and Exchange Commission (SEC) are great resources.⁷ Required filings, such as the annual reports on Form 10-K and quarterly reports on Form 10-Q, often contain helpful information, such as listings of properties owned and corporate liabilities. Large corporations have an interest in representing their assets to investors and are more likely to be transparent concerning premises ownership, for example, than they might be in litigation.⁸

Form 8-K corporate filings may also help identify proper entities or reveal information about a defendant. A company must file a Form 8-K when it is announcing significant events relevant to shareholders. This becomes relevant in litigation because companies must disclose information such as imminent bankruptcy, changes in the financial condition of the company, or the acquisition of a large asset.⁹

Web searches. Use internet search engines to locate official corporate websites—these can be useful, especially for smaller or local companies. For example, you may find that a company that denies liability for certain heavy machinery prominently features photographs of that same heavy machinery on its website. Or you may find that the company admits certain facts on its website that it denies in discovery answers (such as its founding date, formal name, or family of companies).

Google and other internet search engines are also good tools to locate news articles, social media posts, and more.¹⁰ Old newspaper articles especially can be relevant. For example, an article may detail a company’s activities in a particular geographic area or may announce the opening of a business at a certain location relevant to your case. Likewise, an internet search may yield a social media post from the potential defendant tying its activities to your client’s set of facts.

Another useful tool is the Wayback Machine, an archival website that allows you to “go back in time” to what a company’s website looked like in the past, even if the website owner has since deleted the information.¹¹ Let’s take the hypothetical of a harassing or defamatory blog post. A potential defendant may realize such a post is potentially damning and may be savvy enough to delete it. The same can be true for companies that have information relevant to the product that injured your client on their website but that later delete that helpful information.

Formal Discovery Methods

Sometimes you will need formal discovery to identify the proper defendant. In some cases, a defendant will claim that another company has acquired the liability for the product or premises at issue. In that instance, formal discovery via a production request will yield the relevant asset purchase agreement or sales contract. If the liabilities were sold, such a document can lead you to the proper party to name in your suit. If the liabilities were not part of the sale, or if the defendant claims it sold the liabilities but can’t produce verification of that sale, this likely indicates that you have named the proper defendant.

When you find that formal discovery is necessary, a properly phrased request for admission or detailed request for production is key to getting the information you need. Use concise, direct language rather than language the defendant will be able to avoid answering, especially language that goes to the ultimate issues in the case.

For example, “admit you owned this premises on this date” is a better request than “admit you are liable for injuries occurring at this premises.” Likewise, “admit that you manufactured this product during this time period” is better than “admit that you manufactured this product that caused an injury.” Put yourself in the shoes of a person who does not want to produce any evidence at all, and word your discovery requests accordingly.

Use Your Network

If all else fails, reach out to your peers. Even if you don’t get quite the answer you’re searching for, a colleague may point you in the right direction. Or better yet, they may provide the proper name and service address for the defendant.

And remember—your membership to AAJ connects you to a vast network of like-minded attorneys who are fighting the same battles. When you can’t seem to pinpoint the correct party, try posting on one of AAJ’s list servers. And don’t forget to return the favor and help others who reach out if you have valuable information.

Naming the correct defendant and naming that party or entity properly are critical components of a winning case. Building a clear picture of a defendant’s liability early on will not only benefit the case but also provide many potential avenues for further investigation.

Sophie Zavaglia is a partner at SWMW Law in St. Louis, Mo., and can be reached at sophie@swmwlaw.com.

Notes

1. Compare Mo. R. Civ. P. 57.01, and N.Y. Comp. Codes R. & Regs. Tit. 22 §202.20-b, with Fed. R. Civ. P. 33.
2. See, e.g., Sec’y of the Commonwealth of Mass., Corporate Database, https://www.sec.state.ma.us/cor/corsearch.htm; Ohio Sec’y of State, Business Name Search, https://businesssearch.ohiosos.gov.
3. Mo. Sec’y of State, Business Entity Search, https://bsd.sos.mo.gov/BusinessEntity/BESearch.aspx?SearchType=0.
4. Wash. Office of the Sec’y of State, Washington Corporations and Charities Filing System, https://ccfs.sos.wa.gov/#.
5. Mich. Dep’t of Licensing & Regulatory Affairs, Business Entity Search, https://cofs.lara.state.mi.us/SearchApi/Search/Search.
6. Many cases are available, albeit usually for a fee, on File & Serve Xpress, https://secure.fileandservexpress.com.
7. U.S. Sec. & Exch. Comm’n, EDGAR Company and Person Lookup, https://www.sec.gov/edgar/searchedgar/companysearch.htmlhttps://www.sec.gov/edgar/searchedgar/companysearch.html.
8. For example, a large petroleum company once represented to me that it did not own the plant where my client worked and was injured. According to the company, it was owned by an affiliated but separate sister corporation that we had not named in the suit. The company’s 10-K filings told a different story, with the company listing the plant where my client worked as a “100%” owned premises.
9. For further information on Form 8-K, see U.S. Sec. & Exch. Cmm’n, How to Read an 8-K, Jan. 26, 2021, https://tinyurl.com/476fy3wshttps://tinyurl.com/476fy3ws.
10. There are many search tricks you can use when trying to find information on defendants, including quotation marks, negative phrases, Boolean terms, and search operators. For several tips and tricks on making your Google searches more effective, see Inst. of Legal Sec’ys & PAs, Searching the Web With Google, ILSPA Legal Secretary J., Sept. 11, 2007, https://www.legalsecretaryjournal.com/searching_the_web_with_google; Simone Malone, Boolean Search Tips and Tricks, Entelo, Dec. 23, 2020, https://tinyurl.com/a5kc9t8s.
11. Internet Archive, Wayback Machine, https://archive.org/web.