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Click Here for Part One of this Article.
I get certain basic questions about the discovery process quite often.
The answers aren’t always clear, but this article will answer these questions to the extent they can be answered.
The discovery methods have no necessary connection, although you might notice that most requests for documents ask the other side to produce all documents “identified in your responses to interrogatories,” and many interrogatories from debt collectors ask you to explain why you denied any request for admission. I don’t usually suggest the question about requests for admissions because the only reason for denying a request for admission is that you don’t know it to be true. Period. But maybe a more sculpted question: “for every request for admission you denied, if you believe it to be untrue, state every reason…” Worth a shot, maybe.
In any event, all the methods of discovery are aimed at the same goals – to learn from the other side any information they have that either helps their case; hurts their case; helps your case; or hurts your case. Since you want them to tell you what that information is and how you can get it, or you want them to give you any of that information that is in their possession, it does make sense to connect your interrogatories and requests to make them do that.
In most jurisdictions, there is no court involvement in the discovery process unless and until a motion to compel becomes necessary. Even in those jurisdictions, a lot of people will send a “notice of service of discovery” which simply informs the court of the date and type of service certain discovery was served on the other side: “On this date, defendant served his first set of interrogatories, requests for admissions, and requests for production on plaintiff by first class mail, postage prepaid, at the address noted below as the service address.” You can find an example in the document bank.
In a very few courts – I just heard of one last week for the first time – the courts still take copies of the discovery. That’s a question you could ask a court clerk and probably get an answer, because if they don’t want it, they really don’t want it.
What happens is simple. You serve discovery and the other side answers or objects. In debt law cases, the debt collector will always object to everything, or almost everything, you ask. If you take no further action, nothing will happen. No one looks out for you! If you want to force the debt collector to answer, you must file a motion to compel (and typically you have to send them a “good-faith” letter to try to get them to agree to answer, first). Then you attach all your discovery requests and their answers and objections, and file it with the court. That’s the first time the court will see it, so your motion to compel has to be thorough and complete.
And there’s more. After the other side responds, you will need to “call” (schedule your motion with the court) and argue it in front of the judge in order to get the court to rule. The court will either sustain their objections or overrule them and order them to answer the requests. If it orders them to produce answers, it will usually give them a little time to do that.
I get certain basic questions about the discovery process quite often.
The answers aren’t always clear, but this article will answer these questions to the extent they can be answered.
The simplest answer to this question is no answer at all: Discovery begins when the Rules of Civil Procedure for your jurisdiction say it begins. I have discovered that the discovery process begins at very different times for different courts.
In the federal courts, the defendant can serve discovery immediately upon being served with the summons, whereas the plaintiff must wait for some time before beginning the discovery process. I guess this is a way of allowing a defendant to focus on investigating the complaint and filing an answer.
In most state courts, the parties can begin discovery at the same time, either immediately or after some period of time, usually thirty days after service. In debt law cases, though, I have rarely observed that debt collectors begin discovery as quickly as they could. My guess is that they are hoping everybody will default (and most defendants do), so it would be wasteful to start the discovery process before the time for default has passed. This gives a defendant an advantage to begin the discovery process before the debt collector does, and this advantage should not be allowed to slip away.
In some state courts, most often courts of limited jurisdiction (i.e., for smaller amounts, as most debt cases are), the parties are not allowed to begin discovery without an order of the court that allows it. I think this is a terrible rule. But regardless of my opinion, you need to know if that’s the rule in your jurisdiction, and if it is you need to seek an order permitting discovery as quickly as possible. Remember that discovery is an important part of your defense. There is even one jurisdiction of which I am aware where no discovery is allowed at all. In this jurisdiction, though, you can seek a trial “de novo” if you are not happy with the result. That is, you can start the whole case over in a higher up court that does allow discovery. In Maryland, on the other hand, discovery begins immediately upon service of the suit – and ends about a month later – unless you receive permission from the court.
The important “take-away” from all this is that state laws vary, and you need to know your state’s law as soon as possible. Not finding this out is asking for trouble.
Motions for Summary Judgment are among the most lethal weapons facing you as a pro se debt defendant. This video discusses what they are, how to protect yourself from them, and how you could use them to your advantage.
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