easy619

Motion to Compel granted...this should be interesting

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Even if plaintiff is claiming privilege, it must tell you whether it is withholding documents based upon a claim of privilege and clearly state the nature of the privilege (i.e. attorney/client. clergy/penitent, spousal, etc.).  In addition, and most important, plaintiff must also provide you with a privilege log.  CCP 2031.240 c.  ("© (1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the
response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.")

 

Typically, a privilege log describes the document by author, date, and general subject matter, and states the precise nature of the privilege invoked.

 

Did plaintiff do this?????
 

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Even if plaintiff is claiming privilege, it must tell you whether it is withholding documents based upon a claim of privilege and clearly state the nature of the privilege (i.e. attorney/client. clergy/penitent, spousal, etc.).  In addition, and most important, plaintiff must also provide you with a privilege log.  CCP 2031.240 c.  ("© (1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the

response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.")

 

Typically, a privilege log describes the document by author, date, and general subject matter, and states the precise nature of the privilege invoked.

 

Did plaintiff do this?????

 

 

The last supplemental response they sent was without privilege claims. They responded as follows, for each request: 

 

Attached hereto are all documents responsive to this request, within plaintiff's custody and control. Investigation and discovery are ongoing and plaintiff reserves the right to supplement or amend this response.

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Tentative Ruling of the Court:

 

 

MOTION TO COMPEL COMPLIANCE WITH COURT ORDER AND FOR SANCTIONS by defendant

ME is GRANTED in part and DENIED in part.

 

 On May 3, 2013, this court issued a court order compelling plaintiff to provide further responses to

Requests for Production of Documents Nos. 1-3 and 5, without objection, by May 24, 2013. The

responses "shall comply with CCP § 2031.230."

Plaintiff failed to comply with the court's order. Responses were not served by May 24, 2013 and when

the responses were served on May 30, 2013, they contained objections. After defendant sent a meet

and confer letter, defendant provided second supplemental responses on June 18, 2013.The response

to RFP No. 1 did not comply with CCP § 2031.230.

Defendant's request for terminating sanctions is denied as it does not appear the failure to comply was

willful. (See, Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992)

Defendant's request for evidentiary sanctions and for an order compelling further response are granted

as to Request for Production of Documents No. 1. Plaintiff shall produce the Credit Card Purchase

Agreement referenced in the Bill of Sale by November 15, 2013. If plaintiff cannot produce the

document, the response shall comply with CCP § 2031.230.

All responsive documents not produced in response to RFP No. 1, including the Credit Card Purchase

Agreement if it is not produced, shall not be used at trial.
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Tentative Ruling of the Court:
 
 
MOTION TO COMPEL COMPLIANCE WITH COURT ORDER AND FOR SANCTIONS by defendant
ME is GRANTED in part and DENIED in part.
 
 On May 3, 2013, this court issued a court order compelling plaintiff to provide further responses to
Requests for Production of Documents Nos. 1-3 and 5, without objection, by May 24, 2013. The
responses "shall comply with CCP § 2031.230."
Plaintiff failed to comply with the court's order. Responses were not served by May 24, 2013 and when
the responses were served on May 30, 2013, they contained objections. After defendant sent a meet
and confer letter, defendant provided second supplemental responses on June 18, 2013.The response
to RFP No. 1 did not comply with CCP § 2031.230.
Defendant's request for terminating sanctions is denied as it does not appear the failure to comply was
willful. (See, Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992)
Defendant's request for evidentiary sanctions and for an order compelling further response are granted
as to Request for Production of Documents No. 1. Plaintiff shall produce the Credit Card Purchase
Agreement referenced in the Bill of Sale by November 15, 2013. If plaintiff cannot produce the
document, the response shall comply with CCP § 2031.230.
All responsive documents not produced in response to RFP No. 1, including the Credit Card Purchase
Agreement if it is not produced, shall not be used at trial.

 

 

 

Not willful.

 

One of those failures to comply that plaintiff did without noticing (sarcasm).

 

If they don't get it right this time, I think you have them.

 

This is the operative language:   "This statement shall also

specify whether the inability to comply is because the particular

item or category has never existed, has been destroyed, has been

lost, misplaced, or stolen, or has never been, or is no longer, in

the possession, custody, or control of the responding party."

 

 

 

If they try to quote back the language of the code ("it has been lost or destroyed or has never existed"), tell them that is not good enough.  THey have to investigate and tell you which one.

 

See if you can get them to say that it has been destroyed. 

 

That might help.

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At the hearing, Plaintiff's lawyer appeared by telephone, greeted the judge with good afternoon (it was morning) and made some weak apologies, said that they didn't have the purchase agreement and had no intent of aquiring it for use at trial. The judge looked perturbed, corrected him about what time it was and scolded him a bit. I told the judge I believed plaintiff's failures to comply were willful, but that i respected her judgment and would submit to the tentative ruling. She seemed to appreciate that. Plaintiff asked if he had to submit a response or if he could just say they don't have it, she ordered them to respond formally. I don't think the judge will "take sides" or anything, but i seem to be much more in her graces than plaintiff.

 

So I imagine they will just say they don't have it and let anything else be precluded. Their response is due the same day as the case management conference, so hopefully they don't respond by then so I can bring it up to the judge. How can I attack them for not having/producing the purchase agreement? Also, do I need to serve a notice of entry of order, since plaintiff heard the judges ruling?

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Easy,

 

Very good job holding their feet to the fire on a Discovery Issue, these tend to be paperwork heavy in the creation and filing.  Alot of work, from what I have seen.

 

Given that I would close the loop with a Notice of Entry of Order, just so the file is complete, in the event an appeal is neccessary down the road.

 

You probably already have this but just in case, here are the California Rules of Court regarding Orders and Preperation-

 

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1312

 

Finally, I think you are in a good position with them not having or being willing to produce, depending on how it is referenced in the Bill of Sale.  Could call into question their Standing to Sue and ownership or ability to prove the ownership of the account....

 

Great Job

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At the hearing, Plaintiff's lawyer appeared by telephone, greeted the judge with good afternoon (it was morning) and made some weak apologies, said that they didn't have the purchase agreement and had no intent of aquiring it for use at trial. The judge looked perturbed, corrected him about what time it was and scolded him a bit. I told the judge I believed plaintiff's failures to comply were willful, but that i respected her judgment and would submit to the tentative ruling. She seemed to appreciate that. Plaintiff asked if he had to submit a response or if he could just say they don't have it, she ordered them to respond formally. I don't think the judge will "take sides" or anything, but i seem to be much more in her graces than plaintiff.

 

So I imagine they will just say they don't have it and let anything else be precluded. Their response is due the same day as the case management conference, so hopefully they don't respond by then so I can bring it up to the judge. How can I attack them for not having/producing the purchase agreement? Also, do I need to serve a notice of entry of order, since plaintiff heard the judges ruling?

I think many times they do take sides. It's just not how we would expect it to look. I think its more about a lack of allowing them to have any slack.

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Had my CMC today. Plaintiff again missed deadline to provide supplemental response, judge didn't seem to care much, said it better be there by monday. Plaintiff claims to be awaiting verification.  Trial date has been set for January 3rd, only 49 days away...so I need to get a CCP 98 in the mail pronto (45 days out right?) I'll serve that on plaintiff, and begin preparing my brief. 

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So 45-30 days is the window for CCP 96. So, here's my timeline, correct me please if I'm wrong.

 

1) 45 Days out - Send CCP 96,  they have to respond before 30 days to trial.

2) Work on Trial Brief, motion in limine

3) 20 days out -  Subpoena Witness

4) 14 days out - send my CCP 96 response

5)10 days out - Submit Trial Brief, Motion in Limine

6) Study objections and other trial prep

7) Win

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#1 - They have 20 days to respond to your CCP96 request (+5 days if you serve them by mail). So if you serve it to them on day 45 by mail, they have until day 20 (20+5) to serve their response. If you personally serve or serve via express delivery, you can adjust accordingly.

 

#3 - Get your subpoena from the courthouse. It comes stamped by the right person. I brought in a downloaded subpoena from my county website and the clerk told me I would have been in error if i had used it.

 

#4 - Did they send you a CCP96 request? If not, no need to send them anything. Sometimes they don't request that of you.

 

#5 - Check your local rules on filing/serving Briefs and MILs. Some courts may require you file/serve it by a certain day before trial. it may not be 10 days by your plan, it could be 5 or could be 20. Also make sure a holiday doesn't fall on the day you need to file/serve, if it does you should do it a day early.

 

- Their CCP98 (Affidavit/Declaration in Lieu of testimony): They need to serve it upon you by day 30 before trial, and not a day late. Make sure it conforms to CCP98/2015.5

 

- You'll need to submit a Declaration in Support of Motion in Limine along with your MIL. Don't forget :-)

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Had a CCP96 served on plaintiff at the 45 day mark. Also received their (late) supplemental response to my motion to compel compliance with court order (like pulling teeth). Here it is:

 

Attached hereto as EXHIBITS 1 and 3 (same bill of sale and other garbage) are all documents responsive to this request within plaintiff's custody and control. Plaintiff has conducted a diligent search and reasonable inquiry has been made to fully comply with this request. Specifically, plaintiff is unable to produce the credit card purchase agreement because plaintiff does not have possession or control of this document. Plaintiff is of the information and belief that its parent orginization is in possession of this document. Plaintiff's parent orginazation is Encore Capital Group, INC, and is located at 311 Camino Del Rio North #1300, San Diego, CA 92108.

 

That seems to be compliant to me. 

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Had a CCP96 served on plaintiff at the 45 day mark. Also received their (late) supplemental response to my motion to compel compliance with court order (like pulling teeth). Here it is:

 

Attached hereto as EXHIBITS 1 and 3 (same bill of sale and other garbage) are all documents responsive to this request within plaintiff's custody and control. Plaintiff has conducted a diligent search and reasonable inquiry has been made to fully comply with this request. Specifically, plaintiff is unable to produce the credit card purchase agreement because plaintiff does not have possession or control of this document. Plaintiff is of the information and belief that its parent orginization is in possession of this document. Plaintiff's parent orginazation is Encore Capital Group, INC, and is located at 311 Camino Del Rio North #1300, San Diego, CA 92108.

 

That seems to be compliant to me. 

 

 

Personally, I don't think so.  I think documents in the possession of "its parent organization" are within its control.

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Agree. If their parent organization "has it", then I would think it's on them to get it from their own parent company. If not, then just say they don't have it. Sounds like they're trying to tell you to go ask the parent company yourself, but this is their action and that is evidence they claim is part of the basis for said action. They need to deal with it.

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This is a great article, provides case law that pretty much states they are in control of the purchase agreement. I'll send them this meet and confer tomorrow:

 

Dear Lowly JDB:

 

On November  1st, the Court issued an order requiring Midland to produce the Credit Card Purchase Agreement. Plaintiff has submitted a verified Supplemental  stating that "Plaintiff is of the information and belief that its parent organization is in possession of this document. Plaintiff's parent organization is Encore Capital Group, INC, and is located at 311 Camino Del Rio North #1300, San Diego, CA 92108."

 

California and Federal courts have found that a party has control over affiliated corporations for the purposes of producing documents, see Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141. Stating that Plaintiff is of the information and belief that its parent organization Encore Capital Group, INC  is in possession of this document and yet not producing it is clearly in violation of the court's order. Documents in the possession or the control of Plaintiff's parent company Encore Capital Group, INC, are in the control and custody of the plaintiff as ruled upon in several cases.

 

Produce the Credit Card Purchase Agreement pursuant to the Court's Order by November 29th or defendant will file a motion to compel terminating and monetary sanctions against plaintiff. If plaintiff's parent company does not possess or control the document, please specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.

Have a nice day,

 

Easy619

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This is the part they don't want anyone to see.

 

EXCEPT AS PROVIDED IN THIS SECTION, THE CHARGED-OFF

ACCOUNTS ARE BEING SOLD "AS IS" AND "WITH ALL FAULTS",

WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER

AS TO EITHER CONDITION, FITNESS FOR ANY PARTICULAR

PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY,

EXPRESS OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS

ANY WARRANTY, REPRESENTATION, ORAL OR WRITTEN, PAST OR

PRESENT, EXPRESS OR IMPLIED, CONCERNING THE CHARGEDOFF

ACCOUNTS, OR THE STRATIFICATION OR PACKAGING OF THE

CHARGED-OFF ACCOUNTS.

 

Seller represents and warrants that

documentation is available for no less than 50% of the Charged-off Accounts.

 

Seller represents and warrants that

documentation is available for no less than 50% of the Charged-off Accounts. The fee for

such service shall free for the first ten percent (10%) per document provided for up to

ten percent (10%) of the Charged-off Accounts. If the total number of documents requested

is greater than ten percent (l0%) but less than twenty-five percent (25%) of the Charged off

Accounts, Seller may, in its sole discretion, honor such requests and charge Purchaser

ten dollars ($10.00) for each requested document. If the total number of documents

requested exceeds twenty-five percent (25%) of the Charged-off Accounts, Seller may in

its sole discretion honor such request and charge Purchaser fifty dollars ($50.00) for each

document provided. Notwithstanding the foregoing, Seller shall have no obligation to

retrieve or provide any documents to any assignee of the Purchaser without Seller's prior

written consent.

( b ) Payment for documents pursuant to subparagraph (a) is due thirty (30) days

from Seller's invoice date.

 

( c ) If Purchaser files any legal action to collect on a purchased Charged-off

Account and requests or subpoenas an officer or employee of the Seller or an affiliate to

appear at a trial, hearing or deposition to testify about the Charged-off Account, the

Purchaser shall pay the Seller or the affiliate for the officer's or employee's time in

traveling to, attending and testifying at the trial, hearing or deposition, whether or not the

officer or employee is called as a witness, at the then current hourly rate of such officer or

employee. The Purchaser will also reimburse the Seller or the affiliate for the officer's or

employee's out-of-pocket, travel and other related expenses.

 

Assignment

Purchaser and Seller may assign this Agreement to an affiliate or the successor

surviving entity in any merger, reorganization or the like, upon the condition that the

assignee shall assume, either expressly or by operation of law, all of Seller's or Purchaser's

respective obligations hereunder; and provided further, that Purchaser may assign, as

security, its rights in the purchased Accounts and its rights under this Agreement to the

financial institution (and its successors, assigns or affiliated corporations) which may be

providing financing to Purchaser for the purchase of Charged-off Accounts hereunder.

Purchaser also may sell or transfer any or all of the Charged-off Accounts purchased

hereunder, but Seller shall have no obligation to any such transferee of the Charged-off

Accounts.

 

Purchaser's Duty to Keep Information Confidential

From and after the execution of this Agreement, Purchaser shall keep confidential,

and shall cause its officers, directors, employees and agents to keep confidential the terms

of this Agreement and all information related to the Charged-Off Accounts sold hereunder

(other than as may be necessary to disclose in order to collect on those Charged-Off

Accounts or to report Charged-Off Account experience to credit bureaus) and, any and all

information obtained from Seller concerning the assets, properties, and business of Seller,

and shall not use such Confidential Information for any purpose other than those

contemplated by this Agreement, provided, however, the Purchaser shall not be subject to

the obligations set forth in the proceeding clause with respect to any such information

provided to it by Seller which either (i) was in Purchaser's possession at the time of

Seller's disclosure, (ii) is lawfully obtained by Purchaser from a third party, or (iii) is or

becomes a matter of public knowledge, (iv) is required to be disclosed to any

suffer irreparable harm and that damages caused by a breach of this Section 26 would be

impossible to calculate and would, therefore, be an inadequate remedy. Accordingly, the

Purchaser agrees that Seller shall be entitled to temporary and permanent injunctive relief

against the Purchaser and/or its agents for any threatened or actual breach hereof. In the

event Seller initiates any action to enforce the obligation of the Purchaser or its agents

hereunder, the Purchaser agrees to reimburse Seller for all costs and expenses, including

reasonable attorney's fees, incurred by Seller in this regard. Nothing in this Agreement

shall be construed to limit Purchaser's obligation under any provisions of any

confidentiality agreement entered into between Purchaser and Seller.

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So assuming that midland fails to produce the credit card purchase agreement and I go forward with (yet another) motion for terminating sanctions, I'll be on a tight schedule, discovery cut off is in 2 weeks and trial 6 weeks. Would I need to have the trial postponed, how to I go about doing that? Or is this an issue to be raised at trial?

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just skimmed the whole thread, sounds like their response to CCP96 is due soon.

 

I'm assuming they may try to submit affidavit in lieu of testimony, if so please pm me, i have docs based on ASTMedics that incorporate target v. rocha

 

my MIL and trial brief also references the martin lavergne affidavit and vague bill of sale

 

sounds like youre even farther along than i was on precluding evidence, should be a slam dunk as they wont have a witness per usual

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CCP96 response is due 30 days before trial, correct? or twenty days after it's sent (or whichever comes first)?  I was thinking too, since the judge granted my evidentiary sanctions, would a CCP98 even be admissible, or only what they supplied in latest supplemental response?

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