cher6474

HELP! Asked about affirmative defenses in discovery

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I think some courts in New York are the only courts where you waive lack of standing if you don't plead it.

Standing is a key element of the Plaintiff's claim. They have to prove standing as a common sense matter of law. You would not assert lack of standing in discovery, however, a lot of your requests can be applicable to standing.

Like bill of sales, contracts, and everything they would have to produce to show standing.

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The problem with asserting a defense, as Coltfan has adequately briefed here many times, is that is becomes your defense to prove. In this case, or any other, it becomes a Catch-22 situation. Like this.

YOU: "I assert the defense of lack of standing."

THEM: "Provide all documents, witnesses, or other proof you have to support this defense."

YOU: "Uh, like, I don't really have anything yet. I was hoping you'd provide something in discovery that I could use to support my unproven claim."

THEM: "Really? A bit premature, aren't you? You want US to provide the documents that will prove your already claimed defense? In other words, your defense was based entirely upon speculation, isn't that true?

YOU: "Can I go to the bathroom now? I think I'm going to hurl."

THEM: "Worship at the porcelain altar at your convenience. Motion to strike your idiotic defense will be waiting for you when you come back. Please be sure to wipe your chin and have a breath mint."

Now maybe I am completely crazy, but if I were the JDB, this is what I would do. Fortunately, most JDB attorneys work on an assembly line mass production format and don't know or care about procedure. However, we do. There is always the stray collections lawyer with a brain. You MUST be prepared for anything. What's the old country song.....if you won't stand for something, you'll fall for anything? Or if you won't stand for pancakes, you'll slip in the maple syrup and break your a$$? What do I know, I just post here. I don't even like pancakes.

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Ok but if i replied that based on discovery from plaintiff (Bop) plaintiff has not provided documentation that would show standing and sent a copy of plaintif's reply to Bop as exhibit a. Does that change anything

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Actually I just re-read that, and something jumped out at me. Defenses are raised in the answer to the complaint, not during discovery. You ask them for all the documentation that would prove standing in discovery. If you don't get it, you can start filing motions accordingly. If you've answered the complaint, let it go. If not. most of us recommend that you not use the defense as you have no way to prove it at this time. I don't think it would hurt your case to use it, but it will just make more work for you when they challenge you. Kind of like running a bluff in a poker game and you get called. Now what.

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Actually I just re-read that, and something jumped out at me. Defenses are raised in the answer to the complaint, not during discovery. You ask them for all the documentation that would prove standing in discovery.

Just jumped out at you? ;) You're on your game today Legal. Way to dig deep to pull this out of your rear and save the day for Cher6474.

Standing is a key element of the Plaintiff's claim. They have to prove standing as a common sense matter of law. You would not assert lack of standing in discovery, however, a lot of your requests can be applicable to standing.

Like bill of sales, contracts, and everything they would have to produce to show standing.

Cher,

I agree with Legals wisdom on this one.

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I agree with Legals wisdom on this one.

This is all you need to know, learn to live with it, learn to love it, because it's the best thing going today. WOOOOOO!

Sometimes I'm actually right, isn't that a miracle? It may take a day, but eventually I get it right. Not like everybody up here, some of which spend half their day calling 911 to get a tow truck to pull them out of the Mickey D drive up window. No names mentioned, of course.

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The good thing about RFAs is that they are covered under the general rules of discovery. That means you can reserve the right to supplement your responses at a later time if more information becomes available, and you can reserve the right to mount a new defense.

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