contract-law liability
Indemnification clause in effect, but indemnified party refuses to cooperate
<p>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.</p>

<p>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.</p>

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

<p>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 <em>anyone's</em> good faith to supply you what you need.</p>

<p>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?</p>
