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Discovery - Requests for Documents

 

This is going to be a brief article. For a fuller discussion and samples, look in the Litigation Manual and Forms. Still, you should be able to create your own after reading this. If you do not already own the Litigation Bundle, you should consider it - there's a special offer below.

As with other discovery, Requests for Documents are controlled by the rules of civil procedure for your jurisdiction. And there are two sets of rules you must consider: your state rules in general and, if you are in some sub-court of the state, the rules regarding your court; and your “Local Rules” if your court has them.

Sub-Courts

An example of what I mean by “sub-court” might be what we have in Missouri, Associate Circuit courts – courts that are designed to handle smaller amounts of money, or small claims courts (even less money). Many states have similar types of arrangements, and these sub-courts will have their own special rules, and these rules always control when and how much discovery you can conduct.

Even if you're not in that sort of sub-court, your court may have “local rules,” which are rules designed to elaborate on your state's rules of civil procedure. The rules of civil procedure will create the general structure of discovery and set the penalties for not cooperating – the local rules will establish certain limits: only a certain number, for example, or that they must be in a certain format (not “compound,” usually, meaning without sub-parts).

Whatever the situation, you must find the rules controlling your discovery, or you may do something wrong, giving the debt collector an easy out. To find your rules of civil procedure, follow this link. Any special rules may be mentioned in your rules of civil procedure or in your court's web-page. I am not aware of these rules – but you must be.

Content of Requests for Documents

The term “document” for purposes of requests is very broad and contains things like electronic records, facsimiles, any non-identical copy of a record, etc. The term is usually defined in the rules of civil procedure, and the way you would define it is to refer to that rule: “by requesting documents, defendant intends all documents as defined by Rule ___, ____Rules of Civil Procedure.

What You Request

You want everything thing the debt collector could use to support its case or attack yours. At a minimum you should ask for any document in their possession or control which you signed or which they contend applies to you in any way. You want all documents relating to the amount or terms of any alleged debt, every document showing or relating to any agreement you made with them, including any notes or comments. You want every document showing or relating to anything you said. If you have a counterclaim, you'll want to create requests that get everything they have related to that.

Standard

The standard for requests for production is that you are asking for documents in their possession or control. Possession is obvious, but control includes documents that other people have created for them or in support of their business: accountant's records, for example, or account records (of your account) if the original creditor agreed to provide them if requested. If these documents are not provided or objected to, but then they try to use them at court, you should request to have them excluded from trial.

Objections

When the other side objects – as they will, to everything you ask – you will, eventually, have to eliminate those objections so that you can be sure you have everything they have. Just because they deny having something you would expect them to have, though, does not mean you can file a motion to compel. Rather – once they have answered, you pretty much have to take them at their word for not having stuff they say they do not have. That is, unless you have evidence they are actually hiding something.  

 

This article is part of a series of articles and videos. For the first in the series, click here. Sign up here for the series. You'll also receive other information that I think will be helpful and informative occasionally. 

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2 Comments
Added by jimbo
March 26, 2013

Ken.Today 3-26-13 I went to courthouse and was asking the clerk if she had a complaint form that I could use to file my answer to AALLC.She was confused and I told her I found a form in the PA Rules Of Civil Procedure and needed info on getting my answer and complaint filed and if the form was the right one.Well she was lost and as I was talking to her the Magistrate came over to me and I told him what I was up to,he told me that I already made it clear that I intend to defend my case and all I had to do was show up for the hearing on the 8th.So what do you think?Have you ever come across this before?Can you post this on the blog so anyone who came across this can help me out.As of now I have so many affirmative defenses that if AALLC does not bring their A game I don't see me losing in a summary judgement.Anyway any help would be appreciated.Thanks
Added by Ken
April 2, 2013

Yes, you could just show up. But until you actually file an answer, you are subject to default judgment if you happen to miss the appearance. And the debt collectors know that so do not cooperate with you if something comes up and you need to postpone. Plus if you have a counterclaim or motion to dismiss you need to file that - showing up will not let you pursue your claims. So I always recommend filing an answer - in your case I'd consider preliminary objections pursuant to the Target case (so a search on "Target case") to see what I mean.
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