SQLguy

Need Help With Defendant's Admissions and Production UPDATED 6/17

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Hi All,

First a bit of background. Received complaint from Asset Acceptance. Nothing was attached to it, just the complaint. Filed answer claiming lack of information and denying everything. No Affirmative Defenses were used. Earlier this month I received Plaintiff's Initial Disclosures, RFP and RFA all on the same day. With the Initial Disclosures they included a generic copy of a cardmember agreement and what looks like a screenprint from the Lawyer's office laying out the alleged original balance from the OC, costs, interest and alleged current balance.This also had my Name, SS# Address, Phone, and DOB. Their Initial Disclosures were severely lacking so I sent a meet and confer outlining my concerns and giving them 10 days to respond. That was on May 16th. Today I sent them my Initial Disclosures and Answers to their RFP and RFA.

Since they have not yet disclosed anything that appears admissible I know I need to be careful with my own RFP's and RFA's so they cannot get something in that they did not disclose. With that being the case, am hoping for some suggestions on what I should request. Keep in mind that I am limited to 5 of each unless I feel the need to file a motion for ​Extraordinary Discovery. These may not be necessary as if they do not respond to my meet and confer, I plan on filing a Motion in Limine to preclude all of their witnesses and documents that were disclosed. However, I would like to get rolling on these anyways just in case they end up having half a brain and actually respond to my letter.

Thanks in Advance.

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The number one killer question will be something like any and all documents intended to be used at trial. Then if they produce anything they should have disclosed, you file a motion in limine based on Rule 26. If they try to use something at trial that was not provided at all, you object on the grounds of discovery misconduct.

 

You will also want to ask for witness names, employer, contact info and a summary of their testimony.

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The number one killer question will be something like any and all documents intended to be used at trial. Then if they produce anything they should have disclosed, you file a motion in limine based on Rule 26. If they try to use something at trial that was not provided at all, you object on the grounds of discovery misconduct.

 

You will also want to ask for witness names, employer, contact info and a summary of their testimony.

Thanks KentWA. They have completely ignored my meet and confer for their disclosures, I've been working on the Motion In Limine for that. Should I wait on that and submit the discovery requests so I can include anything they did not disclose with it, or should I go ahead and file it and file a second one if needed based on discovery?

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Ok I need some help with my MIL for their Initial Discloures I' think I've got the witnesses down but I'm having a hard time finding violations with their docs, They sent a generic account agreement and what appears to be an in-house created account detail. These are definitely unauthenticated and heresay, and the account detail is self serving, Do I attack based on that or do I wait and do that some other time?

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Ok here are the admissions and priduction requests that I have come up with. Any feedback is appreciated.

1. Any and all documents intended to be used at trial

2. The name, employer name, contact information, and a summary of expected testimony for any and all witnesses that are expected to provide testimony at trial or by deposition.

3. The source of the disclosed document titled Account Detail that was provided in Plaintiff's Initial Disclosures.

4. The source and effective start and end dates of the document titled Citibank Card Agreement for the Dell Account.

5. Disclosed witness Elizabeth Gamche's position title, description of job duties and total number of cases within the past four (4) years where Elizabeth Gamache has testified at trial or by deposition.

Requests For Admissions

Please admit the following facts:

1. Admit that you are not the legal owner of the alleged account.

2. Admit that you have no admissible evidence that the Defendant owes the alleged debt.

3. Admit that Plaintiff's disclosed document named Account Detail is self serving and was created for litigation purposes.

4. Admit that you have no proof that the disclosed document titled Citibank Cardmember Agreement for the Dell Account was the agreement in force on the alleged account at the time of the alleged default.

5. Admit that Plaintiff's witness Elizabeth Gamache has no personal, first hand knowledge of record keeping procedures, billing practices, Defendant's alleged use of the alleged account, and any alleged agreement between Defendant and

DELL FINANCIAL SERVICES/CIT ONLINE BANK.

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Here's my non-attorney opinions.  :-)  These are good, but I see a couple of problems.

 

2. The name, employer name, contact information, and a summary of expected testimony for any and all witnesses that are expected to provide testimony at trial or by deposition.

 

The above might be considered an interrogatory.  A document request usually means the production of a document of evidence such as a contract or credit card statement.   A name and contact information is merely information provided by the other party.  It's not an existing document such as a contract.

 

3. The source of the disclosed document titled Account Detail that was provided in Plaintiff's Initial Disclosures.

4. The source and effective start and end dates of the document titled Citibank Card Agreement for the Dell Account.

 

In my opinion, they might either object to the above based upon the word "source" being undescribed.  In other words, what do you mean by "source"?

 

Then they could simply write down where they claim they got the Account Detail and the Agreement.  As a result, they'd be providing the "source". 

 

What is it that you actually want?

 

5. Disclosed witness Elizabeth Gamche's position title, description of job duties and total number of cases within the past four (4) years where Elizabeth Gamache has testified at trial or by deposition.

 

This is another interrogatory.  It's not a request for an actual document.

 

What was included in the plaintiff's initial disclosures?

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Thanks BV I've uploaded a redacted copy of their Initial Disclosures. There are so many problems with them it's ridiculous and that is part of the reason I have included some of those. I've tried getting these same answers through a meet and confer and they ignored it. As this is stuff they should have provided in their Initial Disclosures I thought it would be fair game. 

 

As far as the source of the documents is concerned, I'm trying to get them to admit that the Account Detail was generated in-house (I have an admission that relates to that). My thought is if I can establish this, then there is a chance I can get it thrown out, Since this is the ONLY document that they have provided that establishes a balance, my thought is that it would be a good strike against them. 

 

Regarding the Agreement, my thought is that if the source is not the OC, then again there is a chance to get it thrown out. KentWa had suggested that I ask about this in my Meet and Confer. 

 

How would I go about better addressing these?

AA Initial Disclosures Redacted .pdf

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Have you filed your MIL?  In my case I had actually started drafting it up but never got to the point of actually filing it. 

 

Here my thinking, for what its worth:

 

I was ultimately relying on the fact that their chain of custody and agreement were 1) hearsay, 2) Incomplete, and 3) unauthenticated

 

In regards to their account summary, my plan was to use the following case.  This case addresses the use of summaries that are prepared for use in a trial.  Specifically that summaries should not be admitted without at least offering the support details (ie statements).  I don't know if this case has been used in the past so I don't know how affective it is but in all my research it seemed valuable.

 

http://scholar.google.com/scholar_case?case=10061357327683289446&q=tROLLY+SQUARE+ASSOCIATES&hl=en&as_sdt=4,45

 

Using this in conjunction with their late disclosures and you may be able to get their evidence excluded.  Worst case, you are still creating an awful lot of work for them. 

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I haven't yet. I was working on it when I shifted to the admissions and production because I thought they would be faster and quicker to get out. Then they filed for the pre-trial so I wanted to see what happened there before I went any further.

 

I should also clarify that their disclosures were not late. I reread rule 26 and instead if using the filing date to count, I used the date they were served. It ended up they got them in with a day or two to spare. 

 

So with nothing happening in the pre-trial today, the case is moving forward. I will continue to work on my MIL but I was having trouble figuring out how to handle the 2 attached docs. Thanks for the case link. That should help me with their summary. Should I just attack the Account Agreement as heresay?

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Yes I would attack the agreement as hearsay. 

 

Also,  if they did not disclose someone from the OC or someone who could speak the authenticity of the agreement then I would also attack it as being unathenticated.  I would use rule 26 as part of your response to simply state that they are required to disclose all witnesses they intend to use.  Then somehow make the point that they didn't disclose anyone that could authenticate the agreement.  Therefore its authenticity is in question and it should not be admitted.

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Hi All,

 

Thanks for your continued help on this. I needed to take a break for my sanity but I am refocused now. I was rethinking my Requests for Production. Asset is really pushing for bank statements. Even if they end up getting them, they still have to prove that any payments they find were made to this account. I was thinking about requesting the Sales Contract, Terms of Sale, Forward Flow agreement, and Complete Chain of Custody .

 

Is this a good idea? I'm attacking them based on standing. I am concerned that if I ask for these and actually happen to get them, then, assuming everything is complete, it gives them a chance to get them admitted into evidence, where currently, the only thing they have disclosed is completely hearsay and inadmissible.

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Thanks Shellie...Things are getting interesting. I've got another thread going for a different issue but I'll fill you in here too. I've looked through the Card Holder agreement they sent me. The thing is full of stuff about arbitration. But I haven't been able to find anything in it related to having to pay collection costs or Attorney's Fees outside of arbitration. and even the arbitration clause indicates that each party will pay it's own fees unless the arbitrator has a legal reason to decide otherwise.

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