WHY DOESN'T THE PLAINTIFF HAVE TO ANSWER DISCOVERY?

[chiquita55]

I keep reading on here that the creditors (plaintiffs) never answer discovery or rarely do. Why are they allowed not to answer discovery or a BOP? If you file a motion to compel will the judge make them answer it?

If they dont' have to answer it, then why do we, the debtors have to?? What does the judge do if we don't answer or just say we have no knowledge to every question?

If they do answer and give bogus unmeaningful answers, is there something you can do about that in court? What if in court they never produce any documents proving you really owe the debt or don't produce what you asked for in discovery?

[BV80]

Plaintiff's are supposed to answer discovery. You need to read your Rules of Civil Procedure to exactly what they say about not responding, evasive answers, etc.

You can file an MTC, but, if it were me, I'd be sure to include the rule and case law, if possible. If the judge doesn't grant the MTC, and the Plaintiff wins a judgment, you could have a good reason to for a Motion to Vacate or to appeal, depending on the judge's reasoning for not granting the MTC.

[WhoCares1000]

The plaintiff is required to answer discovery. The problem is that most Pro Se defendants do not know how to force them to answer or if the defendant does, the plaintiff simply dismisses the case and passes it on to someone else which takes the issue out of the courts.

[SingleDadJames]

I could be wrong on this, but I think part of the reason many plaintiffs don't answer Discovery is because the Defendant fails to format it properly.

IF Discovery is permitted/granted by the Court and the Defendant follows all proper formatting and procedural protocol I'm pretty sure the plaintiff needs to answer Discovery. IF they don't then I believe the proper course of action is to send them a letter stating they've failed to answer Discovery per the Court rules and then you give them a reasonable deadline to do that. If they don't, then you can file a motion to compel them to do so or possibly move to have requests for admissions deemed as admitted.

If a Defendant has failed to follow proper format or procedure then many times the plaintiff ignores the Discovery requests all together. Some examples could be sending in more interrogatories than is permitted by the rules of the court. If that's the case often the plaintiff doesn't nicely inform you of your errors...they simply do nothing.

If you "call" them on the fact that they haven't answered Discovery then they may fire off a letter saying they don't have to respond b/c the Defendant's Discovery failed to follow the rules of civil procedure and thus they requests are basically invalid.

I think another issue is Discovery doesn't even get filed in some courts. Thus the plaintiff knows the only way the court will know whether or not Discovery requests have been sent and ignored are if someone complains about it! I think it's one of those "we aren't going to do it until we have to" deals in these cases. The plaintiff simply ignores the requests until you send them a letter declaring your intent to compel their answer..or if they are stubborn, until the court compels them to do so. I think it's really all part of the game. Drag your heels, do as little as possible and force the other side to work twice and hard and MAKE you do your job.

This is all based on what I've read on hear, as I've yet to be through a situation where Discovery wasn't answered.

I think if either side is too evasive with their answers to Discovery then the they can be asked by the other side to clarify. If it continues to be an issue then I believe a party can move the court to order someone to answer more definitively.

Sometimes one side is too lazy or uninformed and let's something slide. Every document they make you write, every bit of postage they make you pay for is one step closer to having you screw up or give up.

If they don't produce documents you request in Discovery then the general opinion is they can't then surprise you with them at trial. In my case pretty much the entire pre-trial procedure involved the judge asking us to talk in the hall if we hadn't already. If we were unable to resolve it we came back in and discussed the issues. It was ALWAYS something to do with the fact that I hadn't seen some sort of proof I needed and the plaintiff would have to try to "order" the media.

In my case if there was something I felt I needed to see before trial (something very important like cc statements etc) and the judge agreed he would tell the plaintiff to get it to me. They drug their heels for months and finally the judge got fed up and ordered the plaintiff to produce them within 30 days or he would consider a motion to dismiss.

If there is something you really need and are sure they can't provide, then maybe you push the issue by telling the Court in pre-trials that they haven't provided it?

[rikkivs]

Everything people told you here is correct; sometimes the discovery requests are not formatted correctly (CA Rules of Court tell you how to format docs properly) or they drag their heels and ignore your requests. Usually it is the latter and you can use this to your advantage to get them sanctioned etc.

About motions to compel...sometimes judges won't grant motions in limine associated with CCP 454 UNLESS you do a motion to compel first. This means that they treat the BoP request like normal discovery where you have to go through the motions of filing motions to compel etc. I believe the judge told you to do this in your hearing right?So get motions to compel together because I have a feeling you will need to do them. You have to set a date on the calendar a few days out see your local rules of civil procedure for that information.

And from the thread about your case management hearing, what was the excuse he gave for the plaintiffs NOT submitting their case management statement?

[Guest usctrojanalum]

Agree with everyone, it's not that plaintiff's do not have to answer discovery. It's often that people who are pro se and inexperienced do not know how to properly format, serve, request, compel, discovery from one party. I know for a fact that Suffolk County National Bank refuses to answer discovery until there is a Court Order compelling them to do so, because there literally is no penalty up until that point. Sure, the NY rules of Civ Pro state that there are penalties, but in order for any judge out here to penalize a party for not responding to a discovery request, they have to violate a Court Order.

[donqII]

Total disagreement with those of you who say the defendant did

improper formatting.

I was served discovery to answer almost a year to the date that

the complaint was filed in my local courthouse. Well beyond the 240

days that our RCP stipulate to complete discover.

I did not know that at the time... and while ignorance is

no excuse, I did answer... in proper format, it was impeccable,

and I did

submit my requests to them with my answers to them.

After 30 days.... nothing, then well into 45 days, while

I am working on a MTC this I get a notice that they are

going to set a hearing date for judgment on the pleadings.

YES.... they got their date.... and no I never got my

discovery answered.

[chiquita55]

The excuse the judge gave the Plaintiff for not showing up or filing a case management form was that perhaps they didn't get properly notified of the hearing. A woman that helps the judge told them they were tho but the judge just said maybe they didn't get it. I was peeved tho because 3 weeks before the case management hearing I myself sent the Plaintiff a copy of my case management form so they knew about it. Its just the judge playing favorites. I didn't want to argue with the judge so I didn't but I did tell the judge that I felt that the Plaintiff should have to play by the same rules that I do and that I would like a copy of everything that I am suppose to get and that I felt they should have to abide by the rules of the court as I did (the judge kept warning defendants that if they didn't do everything just right that he would strike their answer to the lawsuit etc etc). He did nod at agreement with me but still gave them leeway. Then told me to watch my mail for important things this outfit might send and beware because they were tricky and to be sure to answer whatever they send.

About motions to compel...sometimes judges won't grant motions in limine associated with CCP 454 UNLESS you do a motion to compel first. This means that they treat the BoP request like normal discovery where you have to go through the motions of filing motions to compel etc. I believe the judge told you to do this in your hearing right?So get motions to compel together because I have a feeling you will need to do them. You have to set a date on the calendar a few days out see your local rules of civil procedure for that information.

And from the thread about your case management hearing, what was the excuse he gave for the plaintiffs NOT submitting their case management statement?

[antiquedave]

I'm not getting anywhere with discovery, they answered sent only what benefits them and was evasive on everything else, yes its a game to them to try and wear you down, burn you out and jump on you if you make a mistake.

we'll see, the beat goes on so they say

[nobk4me]

I'm not getting anywhere with discovery, they answered sent only what benefits them and was evasive on everything else, yes its a game to them to try and wear you down, burn you out and jump on you if you make a mistake.

we'll see, the beat goes on so they say

Two can play that game. Everything you send to them wears them down and costs them money. Driving up the cost of collection is part of the game plan.

[antiquedave]

Two can play that game. Everything you send to them wears them down and costs them money. Driving up the cost of collection is part of the game plan.

I know it but I get these moments where the frustration can kick into high gear for a bit. I guess they haven't figured out I'm judgment proof, they can't get ahead of the IRS and I meet the means test for Chapter 7.

I think I'll have a couple good stories to tell win or lose

[Defendant9]

I know it but I get these moments where the frustration can kick into high gear for a bit. I guess they haven't figured out I'm judgment proof, they can't get ahead of the IRS and I meet the means test for Chapter 7.

I think I'll have a couple good stories to tell win or lose

As I mentioned elsewhere, if you can visit your local law library you can ask for the civil practice manual for your jurisdiction. In this book, or online, you will find all the rules PLUS sample forms of how they are used and also the leading case law you can cite in support of you motions or requests.

Good luck...

[ADSOFT]

The excuse the judge gave the Plaintiff for not showing up or filing a case management form was that perhaps they didn't get properly notified of the hearing. A woman that helps the judge told them they were tho but the judge just said maybe they didn't get it. I was peeved tho because 3 weeks before the case management hearing I myself sent the Plaintiff a copy of my case management form so they knew about it. Its just the judge playing favorites. I didn't want to argue with the judge so I didn't but I did tell the judge that I felt that the Plaintiff should have to play by the same rules that I do and that I would like a copy of everything that I am suppose to get and that I felt they should have to abide by the rules of the court as I did (the judge kept warning defendants that if they didn't do everything just right that he would strike their answer to the lawsuit etc etc). He did nod at agreement with me but still gave them leeway. Then told me to watch my mail for important things this outfit might send and beware because they were tricky and to be sure to answer whatever they send.

Look, it's well known that both the defendent and the plaintiff MAY NOT ANSWER discovery, but there are mechanisms to make them answer. And even if they do answer or you compel them to answer it may not and will not GUARANTEE judgement in the favor of any party. Why???

Because what counts at trial is EVIDENCE, that's why you have to hang in there till trial.

For example:

In my first case (which I won), I didn't answer discovery, and the plaintiff was awared a MOTION TO DEEM ANSWERS ADMITTED, but the LOST the case! Why,

Because they didn't have the proper evidence to win, they also had to prove they OWN the bill and the amounts are correct and provide a witness. None of which they had.

At this point you have two choices. Let things ride because they have not produced any evidence. You can force the issue for them to provide evidence and if they do provide evidence THEN you can settle or MAYBE go to arbitration (but I don't know about arbitration, keep in mind once you go to arbitration you ADMIT you owe the bill).

So at this point you can send a BOP to see what they have. They can never get an MSJ because you haven't admitted anything and they have no evidence.

I would only consider arbitration after they produce enough evidence to win a case.

At this point I think the judge gave you great advice, WAIT. What ever they do, you will have enough time to respond properly without ruining your case.

Keep in mind that the Calif. Superior Court system is designed to give both parties the tools and time frame to present evidence to both side so that an out of court settlement can be reached. The court does not like having to be drug into to trial and make a ruling.

If it were me I would wait. You can file a BOP but you most likely will not get a complete answer and will have to file a motion to compel, ... but you run the risk of them pulling all the necessary info.

It is of my opinion that you force them to produce all the evidence to win the case you just might be doing thier homework for them and guiding them.

Let them take to trial without all the evidence, or try to scare you into thinking they have all the evidence..

The Judge is your best lawyer, because he/she can't make a ruling without all the evidence. And if the judge does, then you can appeal.

My advice is "LISTEN TO THE JUDGE, be PATIENT, and watch your mail".

.... ADSOFT.

[chiquita55]

Adsoft I already filed a BOP asking for an accounting of the bill from ZERO and a copy of the contract and proof that they have a right to file the case. I also asked if they owned the debt or proof of her owns the debt. So we shall see what they say to that. If they have proof of the debt then it might be better to arbitrate.

Someone on the debtor forum say they live down this way and are fighting a case with the same lawyer and cap one etc. They said within 60 days of the CM hearing I will get a MSJ from them that I will have to fight. Do we just wait for that to come and if we don't like what they have said then file for arbitration? Thanks for your imput.