Conducting “Discovery” When You're Sued for Debt (Part 2)


This is the second part of a three-part series. For the first part, go to Conducting Discovery Pt. 1. For part 3, go to Conducting Discovery Pt. 3.

What are interrogatories, how do you create them, and how can you use them?

Interrogatories are questions that the other side of a lawsuit must answer under oath. They are not “yes” and “no” type questions, though. Instead, they are “category” questions. To put it in the most basic way, you want the debt collector to tell you all the evidence they have that could be used against you, and you want to know everything anybody with the debt collector knows that might be used against them. Unfortunately, if you ask the questions just like that you will receive nothing but objections to your requests “for legal conclusions.” Instead, you must ask slightly more specific questions.

Before you get around to asking the interrogatories, however, you must have a general grasp of the suit against you and the claims (if any) you are making against them. Otherwise you won't know what you are seeking.

The Debt Collector's Case

You can tell what the debt collector needs to prove by what they put into their petition against you. If it is a simple case of them trying to collect an assigned debt you allegedly originally owed someone else, the debt collector will need to prove, among other things, that they properly own the debt, that it is your debt, how much it is, and that you have not paid it. One thing you will certainly want from them is the name and location of all the information and documents the debt collector received from the original creditor, since this is the information that will have the most bearing on their case.

Your Case against the Debt Collector

You may have a counterclaim against the debt collector. To figure out what questions you need to ask on that, you need to have a specific idea what you must prove. If your claim is under the Fair Debt Collection Practices Act (FDCPA), you will need to prove that the debt collector (or its agent) did something that was unfair, deceptive or “oppressive” in some way in its efforts to collect a debt, that you are a consumer, that it is a debt collector. So your questions will need to be directed towards these questions, among other things. To find out what you must prove, check your state law digest under the FDCPA and see what the “prima facie” case is.

Three Things to Remember

In creating your interrogatories, you should keep three things in mind: you have to make your questions sufficiently specific so they are not asking for much more than you need; but broad enough to get all the information you do need. These things can be a challenge, and there's really no substitute for seeing sample interrogatories for getting a sense of how to do them.

Make Your Interrogatories “Specific”

When asking interrogatories, you want to make the questions you ask sufficiently specific so that they inquire after the information you really want to know without, at the same time, asking for much more information that you do not necessarily want to know. If your questions are too broad, the other side will object that they are “unduly burdensome and oppressive,” “irrelevant and unlikely to lead to the discovery of admissible evidence,” etc. They will likely make these objections regardless of what you ask. But if your questions are good, you will be able to force them to provide you the answers by filing a motion to compel. Sample questions are, of course, provided in my litigation materials.

Regarding the Required Form

In the old days, you could file multi-part interrogatories that contained several categories all built into one question. For example, you might ask them to identify all complaints made in any form against them under the FDCPA and state the addresses of the other parties, the case names and numbers, or whether anyone complained to the Attorney General about it. In some jurisdictions, however, this type of question is not allowed. Find the local rules and find out whether you can ask “compound” or “conjunctive” requests. If you can, fine. If not, then you will have to break the questions into more manageable pieces. Be aware that if the rules impose limits on requests, the multi-part interrogatories may be regarded as more than one question. So you'll have to consider carefully what you want to ask.

Make Your Questions Sufficiently Broad

The other side of the “make your requests specific enough to be clear” is that you want to make sure your requests are sufficiently broad to get everything that might be important to the case. If they're too broad, they seek information that isn't relevant to your case,, but if they're too narrow they will allow the debt collector to avoid providing important documents. So you need to think carefully about the requests that you make.

Answering Interrogatories

In general, sometimes interrogatories are confusing, and you should never answer them if you are confused by the question. Because for interrogatories, unlike requests for admissions, for example, you will swear that your answers are true (that's what an affidavit or notarization means). They do matter, a lot. Therefore people should never say something they aren't sure about.

So if they ask you if a bank statement they show you is true or to point out any parts that may not be accurate, you could say it is if you know, absolutely, that the statement they are showing is for an account of yours and that every single charge on there was true. But maybe you don't know with complete certainty. If you don't, you say, “I don't know” in order to be truthful. If you do know, it's lying to say you don't know. If you don't know, it's lying to say you do. Be very rigorous is what I always suggested to my clients when I was practicing law, and that's probably still a good rule of thumb. Many people have a desire to please that gets the best of them in discovery. Remember that the debt collector wants to take your money and would leave you homeless in the street if that's what it might take.

Saying you don't know something on interrogatories may keep you from denying it at trial. But it is not evidence that the thing is true. The biggest problem the debt collectors have is showing that anything is true about your debt. If you admit it, you make that easy for them. If you don't they've got to find some way of actually getting real evidence in front of the court. And usually they don't have it.

An objection to interrogatories might well be that they ask intrusive or “oppressive” questions. The test is that the question must be “reasonably calculated to lead to the discovery of admissible evidence.” And whether you are divorced, or working, or... lots of things, don't really cast any light on whether you owe this debt collector any amount of money.

Figure it out. Debt collection actions are very simple. If they can show that you owe them money, then you owe it, and it doesn't matter if you lost your job or have excellent excuses for not paying (unless they are defenses). The flip side of that is that questions going beyond those issues are unduly intrusive.

For Part 3 of this series, go to Conducting Discovery, Part 3.



Check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.

Added by Portia50
January 5, 2015

Where can I find sample discovery questions to present to Plaintiff?
Added by Anonymous
January 6, 2015

There are some in the Debt Defense System Manual, and there others in the document bank.
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