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no response to my discovery request


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hi all

because the plaintiff has yet to respond to my discovery request and as of yesterday they are past the deadline under california law. In addition to the motion to compel can i ask the judge in some type of motion to not allow plaintiff to submit docs because the date has past?

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hi all

because the plaintiff has yet to respond to my discovery request and as of yesterday they are past the deadline under california law. In addition to the motion to compel can i ask the judge in some type of motion to not allow plaintiff to submit docs because the date has past?

You can make a motion in limine (before we begin) to exclude any new evidence or witnesses due to plaintiffs failure to respond to discovery as it would unfairly prejudice the defendant without opportunity to review and prepare witnesses or exhibits to counter them.

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Options, Play hard ball or be nice.

Playing hard ball:

Motion to Compel: You know what that is.

Or you could get nasty and file an ORDER TO SHOW CAUSE

Order to show cause: An order from a judge that directs a party to come to court and convince the judge why the judge shouldn't grant an action proposed by the other side or, occasionally, by the judge

You can include in this order any sanctions or fines that can be imposed for noncompliance of trial rules.

You can also ask in this order why the court should not dismiss this case with prejudice because of the Plaintiffs noncompliance.

You could get even more nasty and file a motion to dismiss due to lack of prosecution. This works really well if it has been quite a long time since they have entered any type of motion or appearance with the court.

DWOP as attorneys call it, they say the case dwopped(d-wopped)

Want of Prosecution means that the Plaintiff did not do what he or she was supposed to do, such as showing up for a hearing or trial setting, or failing to take certain specified actions, such as not participating in discovery or filing a motion to retain the case on the docket after the court had sent a notice of intent to dismiss for want of prosecution. Courts must give proper notice to Plaintiffs that they may dismiss a case. The notice will usually specify what the Plaintiff has to do

to avoid dismissal, such as serving the defendant by a date certain, or file a motion to retain and attach evidence supporting a good reason why more time is needed.

Being nice: Write them a letter and remind them that the date for completing discovery has passed, and that you will give them 5 or 10 more days to comply before asking the court for a motion to compel/show cause.

Edited by BTO429
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My personal opinion is you need to take the nice approach first, as much as you don't want to do that. It really boosts your chances when you go the hard ball way.

I did the nice approach first. After that I turned into a demon basically. The judge made a few references to my attempt at "cooperation" prior to having him rule on certain matters.

It really made the other side look bad, and it allowed me to fall even more into the role of the sympathic, underdog, pro-se litigant. It's just human nature, everybody loves an underdog. There is just something about it.

Just watch the NCAA tourney going on right now. Look at the arena full of neutral fans waiting on the next game to start, going crazy when some school name Lehigh, which nobody had even heard of started pulling off the upset over might Duke. Sounded like an airport runway in that place toward the end of the game as about 95% of the neutral fans started going crazy for the school they could not even place on a map. All they knew was some school that should be getting their tail handed to them by 50 points was taking down one of the most dominate basketball programs in the country.

Embrace the role of the underdog. In my opinion, a way to help that role is to portray the other side as just trying to run you over even when you try to comply with the rules. Send them a letter, the odds are they will ignore it. You will then be a hundred times better in a position to have the judge come down hard on them, maybe even dismiss with prejudice.

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My personal opinion is you need to take the nice approach first, as much as you don't want to do that. It really boosts your chances when you go the hard ball way.

I did the nice approach first. After that I turned into a demon basically. The judge made a few references to my attempt at "cooperation" prior to having him rule on certain matters.

It really made the other side look bad, and it allowed me to fall even more into the role of the sympathic, underdog, pro-se litigant. It's just human nature, everybody loves an underdog. There is just something about it.

Just watch the NCAA tourney going on right now. Look at the arena full of neutral fans waiting on the next game to start, going crazy when some school name Lehigh, which nobody had even heard of started pulling off the upset over might Duke. Sounded like an airport runway in that place toward the end of the game as about 95% of the neutral fans started going crazy for the school they could not even place on a map. All they knew was some school that should be getting their tail handed to them by 50 points was taking down one of the most dominate basketball programs in the country.

Embrace the role of the underdog. In my opinion, a way to help that role is to portray the other side as just trying to run you over even when you try to comply with the rules. Send them a letter, the odds are they will ignore it. You will then be a hundred times better in a position to have the judge come down hard on them, maybe even dismiss with prejudice.

Not only that, but some states actually require the nice guy approach first.

"Oh, you didn't try to work this out with them prior to involving me, the judge, first? Sucks to be you!"

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hi all

because the plaintiff has yet to respond to my discovery request and as of yesterday they are past the deadline under california law. In addition to the motion to compel can i ask the judge in some type of motion to not allow plaintiff to submit docs because the date has past?

First of all, you have to make sure they blew the deadline.

If this is a doc request, rog or rfa, they get 30 days to respond, plus 5 extra days if you sent the discovery by mail. If the 35th day lands on a weekend or holiday, they get until the next businesss day.

Also, you don't have to receive them by the 35th day. They just have to drop them in the mail on that day. It may take a couple of days for you to receive them. When you do, look at the proof of service and see what day they deposited the response in the mail. That will tell you whether they were served on time.

If not, you will write them a meet and confer letter. The penalty for late service is that they waive all objections. You will find the exact language in the appropriate code section (CCP 2030, 2031, 2034).

Good luck.

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There is also the alternative approach, which is to do nothing. They didn't produce any of the documents you asked for? Great. I'm not a big fan of trying to force the other side to come up with stuff that will let them win. Just before trial, you can file a motion to preclude any item they did not produce. All this other stuff, meet and confer, motion to compel, is not normal for a credit card case. It isn't even mandatory as I read it, and I've had to dig through about 40 different state codes so far up here. Normally this type of activity goes on in cases where the information sought will result in a victory for the requesting party, not a defeat like in these cases. The fact that they did not produce the document when requested to should be enough. Make them produce it? Not your job.

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There is also the alternative approach, which is to do nothing. They didn't produce any of the documents you asked for? Great. I'm not a big fan of trying to force the other side to come up with stuff that will let them win. Just before trial, you can file a motion to preclude any item they did not produce. All this other stuff, meet and confer, motion to compel, is not normal for a credit card case. It isn't even mandatory as I read it, and I've had to dig through about 40 different state codes so far up here. Normally this type of activity goes on in cases where the information sought will result in a victory for the requesting party, not a defeat like in these cases. The fact that they did not produce the document when requested to should be enough. Make them produce it? Not your job.

In California, you can't adopt this approach if the plaintiff responds with objections to an RFA, Doc Request, or Rogs. Under these circumstances, there is a time limit to move to compel. If you don't file the motion on time, you waive our right to do so.

That rule does not apply to a BOP or the failure to respond at all. However, I still think it is best to file the motion. Let the Judge know early on that plaintiff filed the case making allegation of fact that it refuses to support in discovery. And against an unrepresented party to boot.

JDB's can often get the documents if they request and PAY for them. They just don't want to do it until right before trial. If you wait until right before trial, they may already have ordered them. Let them stew over a court order to produce all account statements and the operative agreements within 10 days of the Court's order. I think you will find that in most cases, the plaintiff just dismisses. Or it violates the order because it can't get the documents that fast. Either way, it is a good day for you.

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In California, you can't adopt this approach if the plaintiff responds with objections to an RFA, Doc Request, or Rogs.

I based my suggestion on this statement by the OP:

because the plaintiff has yet to respond to my discovery request and as of yesterday they are past the deadline under california law.

Just strategy, I can't see hounding somebody for evidence that will beat them. Your thought? CA law is a bit confusing, must be all the forms.

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