JDC Objects to Discovery - NOW WHAT?

[☠2JDC]

I'm in Missouri, being sued by Archview Financial, for AC Breach of Contract on a Chase credit card. I was served so I promptly filed the following discovery to decide how I should proceed:

i. All documents in your possession or available to the you evidencing any communication between you and Defendant in connection with the Agreement described in your petition, including but not limited to letters and correspondence.

ii. The original credit application from you and/or Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX bearing the Defendant’s alleged signature.

iii. The alleged credit agreement from you and/or Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX that states interest rate, grace period, terms of repayment, et cetera.

iv. Itemized statements or credit card statements from you and Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX that demonstrate how the alleged amount of $1599.81 described in your petition was calculated.

v. A contract, agreement, assignment, or other means demonstrating that you have the authority and capacity, and are legally entitled to collect from the Defendant on the alleged debt from Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX.

vi. Any and all documents showing the U.S. dollar amount you paid Chase Bank USA, NA in exchange for the means to demonstrate you have the authority and capacity to collect from the Defendant on the alleged debt from Chase Bank USA, Account Number XXXXXXXXXXXXXXXX.

vii. Letter(s) sent to Defendant by you, demonstrating an attempt to collect from the Defendant on the alleged debt, for Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX.

viii. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally.

ix. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred by the Defendant.

x. Any and all documents if presently existing or otherwise, that a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition would provide as evidence that the alleged debt was incurred legally.

xi. Any and all documents if presently existing or otherwise, that a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition would provide as evidence that the alleged debt was incurred by the Defendant.

xii. Any and all further documents you believe establish you have the authority and capacity, and are legally entitled to collect from the Defendant on the alleged outstanding account or debt related to you and Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX.

xiii. Any and all audible communication files, transcripts or notes, be they handwritten, computerized, typed or any other media, in your possession or available to you that relate to the Defendant and/or Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX as they relate to the aforementioned case.

xiv. Any and all records of communication regarding the reporting of the alleged account to any credit reporting agency, as well as you and/or your attorney accessing of Defendant’s credit report(s).

xv. Any and all communications from you and/or your attorney to the Defendant explaining why you and/or your attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining Defendant’s credit report(s);

xvi. Any and all credit report(s) you and/or your attorney obtained from any credit reporting agency concerning the Defendant;

xvii. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, in your possession or available to you that relate to the Defendant and/or you and/or Chase Bank USA, NA Account Number XXXXXXXXXXXXXXXX as they relate to the aforementioned case;

xviii. Resumes and qualifications of any and all experts you may call to testify.

xix. The Expert Witnesses that defendant may call pursuant to rule 56.01(b)4 and 5, name, address, occupation, place of employment, qualifications to give an opinion, curriculum vitae, and state the subject matter expert is called to testify.

xx. Any and all further documents and communications, beyond what have been previously requested, in your possession or available to you that clearly establishes the Defendant’s liability and/or responsibility to the alleged debt.

xxi. Any and all documents containing information in your possession or available to you that relate to the Defendant.

xxii. Any and all Policy and Procedure documents Archview Financial LLC uses in the course of doing business.

The court date came, the judge noted my filed discovery and continued the case for 60 days. A couple of days later I received the JDC's filing containing several objections to this discovery. I have yet to received any of the documents left out of their objections. I'm specifically concerned about item 5. Their objection was something along the lines of Irrelevant; trade secret; proprietary information; not reasonably calculated to lead to the discovery of admissible evidence.

This brings me to my question. What's my next step? Can I file a rebuttal to their objections, and if so, doesn't it take a ruling by the judge to sustain or overrule the objection? Any help will be GREATLY appreciated.

[BV80]

Did the judge issue an order for them to provide discovery, or did he just continue the case to give the Plaintiff more time?

[☠2JDC]

Originally Posted by BV80

Did the judge issue an order for them to provide discovery, or did he just continue the case to give the Plaintiff more time?

He continued the case to give the Plaintiff more time. They only had the discovery for about a week prior to this court date.

[BV80]

Originally Posted by ☠2JDC

He continued the case to give the Plaintiff more time. They only had the discovery for about a week prior to this court date.

This is what I would suggest. First, read your court's Rules of Civil Procedure regarding discovery and a Motion to Compel. If you're allowed to file that motion, I'd first send the attorney a letter reminding him that you are still waiting for the documents you requested. Send the letter CMRRR. If you end up having to file a MTC, you want to show the court that you communicated with the attorney and tried to avoid having to file a motion.

If others have a better suggestion, hopefully they'll provide it.

[KentWA]

In your reminder letter also point out that their onbjection is ill founded and lacks merit. If they do not provide the documents you will be forced to MTC or assume they lack standing and ask for motion for dismissal.

[☠2JDC]

So my rebuttal argument would be through a letter to them? That doesn't seem right. If they can object through a filing shouldn't I be able to counter that objection, on the record?

[lheart]

Originally Posted by ☠2JDC

So my rebuttal argument would be through a letter to them? That doesn't seem right. If they can object through a filing shouldn't I be able to counter that objection, on the record?

It's called a civil case for a reason. There is etiquette that is not included in the law.

Discovery is expected to take place without court supervision. The two side are expected to cooperate with each other. Writing the letter gives them an opportunity to comply. If they ignore the letter then when you file the MTC, use the letter as evidence you have tried to resolve this without involving the court.

[☠2JDC]

Originally Posted by lheart

It's called a civil case for a reason. There is etiquette that is not included in the law.

Discovery is expected to take place without court supervision. The two side are expected to cooperate with each other. Writing the letter gives them an opportunity to comply. If they ignore the letter then when you file the MTC, use the letter as evidence you have tried to resolve this without involving the court.

I understand. Thank you for the clarification!

[CC7]

I'm in the exact same situation with them; Chase Bank and all. I'm unclear about how to respond and to whom - them or the court. Any help would be greatly appreciated!

[BTO429]

The main thing to remember is that the scope of permissible discovery is very broad. "Reasonably calculated to lead to the discovery of admissible evidence" means that you are allowed to probe into areas that may themselves not be admissible, if doing so would shed light on other evidence that is admissible. See Greyhound Corp. v. Superior Court (Clay) (1961) 56 Cal.2d 355, 384.
it is permissible to ask the opposing party questions that call for hearsay, information that might itself be technically irrelevant to an issue or that calls for an opinion, even from a lay witness. The answers to those questions might be inadmissible at trial, but might lead to follow-up questions that uncover admissible evidence. Unless the other party is fishing for evidence.
Case law specifically allows asking questions that could call for hearsay in a deposition because it might lead to other admissible evidence. Smith v. Superior Court. It is permissible to seek information that is cumulative, so an objection on those grounds would be improper. TBG Ins. Services v. Superior Court (Zieminski).

[VADebtor]

In fact during an in-person deposition, a pleasure I've experienced a couple of times, often the opposing counsel objects then the deponent answers, by placing the objection on the record the other side can argue admissability later.

Against a Pro Se defendant opposing counsel will do these things hoping you'll cave.

[☠2JDC]

It took seven months, five court appearances, a motion to stay and a motion to dismiss, but the judge FINALLY made the following judgement:

"Plaintiff directed to provide direct responses to all discovery requests including production of documents, subject to appropriate objection to be provided within 20 days."

The thing is, he scheduled the next appearance for thirty-five days out and I just received Archview's compliance to the judgement on day twenty-seven.

All they provided were cover pages from two bills of sale and a stack of statements from the original creditor they alleged I had a contract with.

Now I'm wondering:

1. I know the state says they get thirty days, but are they still complying with the judges order even though it was seven days late?
   
2. Couldn't I file a motion to strike everything for a lack of authenticity since it's a variation of the original contract and not a copy of the entire contract?
   
3. Shouldn't they have to include an affidavit to support the bill of sales for them to not be hearsay?

[legaleagle]

Plaintiff directed to provide direct responses to all discovery requests


Kinda says it all. They failed to comply with a court order. End of case.

[Coltfan1972]

You should be throwing yourself a party. They provided you with nothing more than prima facie evidence, which they had all the time anyway.

In other words the usual garbage that gets 99% of consumers to pay.

[Coltfan1972]

Originally Posted by ☠2JDC

Shouldn't they have to include an affidavit to support the bill of sales for them to not be hearsay?

An affidavit is hearsay. You can't authenticate hearsay by using hearsay.

That's like me telling you my bank account balance is $10,000,000.00. Then when you dispute my balance is $10,000,000.00, I get an affidavit and swear my bank account balance is $10,000,000.00.

My bank account balance does not all the sudden become $10,000,000.00 because somebody stamps on a piece of paper that It was me that signed the piece of paper.

All a notary does is just make sure the person signing the document is who they say they are. A notary has zero knowledge if what is alleged in the affidavit or document is true.

[☠2JDC]

Originally Posted by legaleagle

Plaintiff directed to provide direct responses to all discovery requests


Kinda says it all. They failed to comply with a court order. End of case.

legaleagle, they did provide direct responses to all requests, they just didn't do it within the time frame ordered by the court. What I'm asking is if that's considered acceptable by the court.

They provided you with nothing more than prima facie evidence

Coltfan1972, prima facie evidence is good enough to convict.

prima facie: (pry-mah fay-shah) adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment. Example: in a charge of bad check writing, evidence of a half dozen checks written on a non-existent bank account makes it a prima facie case. However, proof that the bank had misprinted the account number on the checks might disprove the prosecution's apparent "open and shut" case.

I agree their evidence is garbage, but I'm not sure how to proceed with showing this to the court.

Also, you make excellent points on the affidavit. I hadn't thought of that perspective. Thanks!

I guess what I'm really fishing for here is what's my next move?

[legaleagle]

All they provided were cover pages from two bills of sale and a stack of statements from the original creditor they alleged I had a contract with.



This does not sound like a response to the 22 discovery requests you sent them. In addition to being late, they didn't give you anything you asked for. Notice the judge said all requests; maybe he didn't think their objection was valid.

[Coltfan1972]

Originally Posted by ☠2JDC

Coltfan1972, prima facie evidence is good enough to convict.

A prima facie case presented to a Grand Jury by the prosecution will result in an indictment.

Comparing an indictment to a conviction is like me telling you the Arkansas river and the Pacific Ocean are the same because they are both water.

Don't hang your hat on them being late. I tried that for a piece of evidence. I basically went at it as a motion to suppress, like you would in a criminal case. The judge simply ruled there was no prejudice to me even if the other side was late with the evidence.

He did not preclude their attempt at admitting that piece of evidence. I still easily got it ruled inadmissible at trial, but not because they were late in getting it to me.

My next step would be see you in court and good luck winning with prima facie evidence that I'm going to destroy and/or get ruled inadmissible. However, a more conservative approach might be a motion to preclude (liminie) everything they did not provide you that you asked for, and not a general statement of all evidence.

Specifically go one by one with every piece of evidence they did not produce that is a part of them meeting their burden of proof for each element they must prove.

For example, if they did not produce the agreement, then motion to preclude the agreement and set for in your motion you asked for it, they did not provide, the court ordered them to provide, they still did not provide, so now your asking for a pre-trial ruling that if they try at trial to introduce the agreement, it's already been decided it's inadmissible. Then that for each and every piece of evidence. In other words win the case before you even walk in the courtroom for trial.

If for some reason we are missing something and they did provide all the evidence (I don't see it) then prepare for trial and get ready to attack the admissibility of the evidence. That is what I did and would do. They will give you about a one in a billion shot of actually saying ready for trial Your Honor. The look on their face is priceless when they figure you they just got it shoved right up their rear by a pro-se and now they are not only getting ready to lose badly but get humiliated in the process.

[legaleagle]

A prima facie case presented to a Grand Jury by the prosecution will result in an indictment

Great, a grand jury can indict a hamburger based upon the testimony of Wimpy. That's great for criminal cases, but this is civil. This is a credit card case, not a murder trial. Evidence is what it is.....admissible or not, according to the statutes that apply. Even if admitted, that doesn't mean the other side can convince a jury the evidence is good enough to win. They'll get their crap bill of sale and affidavit admitted, you know, those affidavits in which a JDB employee swears that the information in HIS affidavit is correct? Admissible and believable are two different things. An original creditor will send an employee to court to testify that the records the OC provided for the case are true and correct, even though those records go back five years before the employee started working for the OC. Add to that the fact that no affiant has ever testified contrary to what their employer told them to say, and you have the classic definition of an interested witness.

[☠2JDC]

The judge was a bit miffed at the last court date since the plaintiff's attorney was over 30 minutes late to the scheduled hearing. Now they have disobeyed a direct court order by filing the discovery answers 7 days late. Couldn't I use this against them somehow?

Coltfan1972, THANKS! I was thinking a motion to preclude might be the next step, but hadn't thought of that angle. I was simply thinking I'd try to get their garbage evidence thrown out, but this is WAY more all-inclusive!

What about a motion for summary judgement for lack of evidence? Considering the bills of sale are vague and could be referencing anyone’s account, wouldn't they be inadmissible hearsay without the supporting records? What about a lack of authenticity since it's a variation of the original contract and not a copy of the entire contract? IMHO, they in no way prove the account was ever assigned from the Original Creditor to me.

Would a motion for summary judgement be premature before a preclusionary motion, or should I shoot for the moon and combine them?