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I Won my Motion to Compel Discovery...but...


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I have a case in Missouri that I've been defending pro se. So far I successfully gotten several cases dropped before trial, but I've hit a point on this one that I'm not 100% certain how to best handle.  Long story short, this started in January and the plaintiff has drug their feet at every step on providing me with discovery. So much so that I filed a motion to compel discovery, had a bench hearing on it and the judge sustained my motion. He gave them 20 days from November fifth. Here we are on December sixth and I've still received nothing, but the next scheduled hearing isn't for another month. SO, what's my next move?

If they fulfill their obligation to provide discovery between now and the next hearing does it negate the fact that they disobeyed a court order?

Is there something I can do now to get the case dismissed and/or other repercussions for them?

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If you sit and wait, they may just get away with it. You need to look into motioning for sanctions. See what the civil rules have on it.

 

Edit: Missouri rules on Discovery Sanctions: http://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/a8d444e965ce5c9586256ca600521356?OpenDocument

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That's what I thought. Here's MO Rule 61.0(d):

 

 

 

Failure to Produce Documents, and Things or to Permit Inspection. If a party fails to respond that inspection will be permitted as requested, fails to permit inspection, or fails to produce documents and tangible things as requested under Rule 58.01, or timely files objections thereto that are thereafter overruled and the documents and things are not timely produced or inspection thereafter is not timely permitted, the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:

 
(1) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibit the disobedient party from introducing designated matters in evidence.
 
(2) An order striking pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or, rendering a judgment by default against the disobedient party.
 
(3) An order treating as a contempt of court the failure to obey.
 
(4) An order requiring the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
 

 

 
So, do I motion for all 4 and hope for the best?
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That's kind of what I was wondering RyanEX, I think there's a way to move up a scheduled hearing, but I'm not sure how and I don't think it can be done ex parte.

I've been looking online and I've found ALL KINDS of stuff on extending court dates, but nothing on making it earlier. Does anyone know how or if it's done?

Spikey, I could always phrase the motion for sanctions so the judge has the choice. "WHEREFORE, the defendant respectfully prays this Honorable Court make whatever sanctions it see fit." Thoughts?

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I wasn't able to find a motion for sanctions with regards to discovery in Missouri, but the motion for sanctions I did find selected 2 options of the 4 and then had a "or what the court sees fit" type language.

 

Here's the motion I found: http://www.unhappyfranchisee.com/wp-content/uploads/2012/07/Defendant-Motion-for-Sanctions-7-5-12.pdf

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I wasn't able to find a motion for sanctions with regards to discovery in Missouri, but the motion for sanctions I did find selected 2 options of the 4 and then had a "or what the court sees fit" type language.

 

Here's the motion I found: http://www.unhappyfranchisee.com/wp-content/uploads/2012/07/Defendant-Motion-for-Sanctions-7-5-12.pdf

 

Gotcha. So it looks like you can ask for what you want from the court, but as always, it's up to the presiding judge. THANKS for the help!  xtookewlx

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The likely outcome of filing the motion is that the plaintiff will actually produce what you requested to try and avoid sanctions. The fact that you had to file both a motion to compel and a motion for sanctions to get it though should put the judge on your side if any other discovery disputes arise.

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If they do not provide what was asked for by the hearing date, it most likely would be excluded from trial.  Depending on what your asked for, it could kill the case for them.

 

So there are two options;

 

1. Push the issue now with a motion for sanctions. They may or may not respond with the requested items.

 

2. Wait quietly until the hearing.  If they have not provided the requested items by that time, ask the court to sanction them by excluding any of it at trial.

 

Both have merits and depend on your strategy overall.

 

What did they not provide?

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If they do not provide what was asked for by the hearing date, it most likely would be excluded from trial.  Depending on what your asked for, it could kill the case for them.

 

So there are two options;

 

1. Push the issue now with a motion for sanctions. They may or may not respond with the requested items.

 

2. Wait quietly until the hearing.  If they have not provided the requested items by that time, ask the court to sanction them by excluding any of it at trial.

 

Both have merits and depend on your strategy overall.

 

What did they not provide?

 

Here's the request I filed:

 

 

 

DOCUMENTS TO BE PRODUCED

 

i.         All letters and/or correspondence in your possession or available to the you evidencing any communication between you and/or XXX and/or the Defendant in connection with the Agreement described in your petition.

 

ii.         The original credit application from you and/or XXXfor Account Number XXXXXXXXXXXXX bearing the Defendant’s alleged signature.

 

iii.         The alleged credit agreement from you and/or XXX for Account Number XXXXXXXXXXXXX that states interest rate, grace period, terms of repayment, et cetera.

 

iv.         Itemized statements or credit card statements from you and/or XXX for Account Number XXXXXXXXXXXXX that demonstrates how the alleged amount of $7XXX.XX described in your petition was calculated.

 

v.         Any contract(s), agreement(s), assignment(s), or other means demonstrating that you have the authority and capacity, and are legally entitled to collect from the Defendant on the alleged debt.

 

vi.         Any and all documents that demonstrate you have the authority and capacity to collect from the Defendant on the alleged debt that you and/or your attorney intend to use as evidence in the aforementioned case.

 

vii.         Any letter(s) allegedly sent to Defendant by you, demonstrating an attempt to collect from the Defendant on the alleged debt.

 

viii.         Separate notarized statement(s), signed by respective individual(s), with original knowledge of the alleged debt, as it was constituted, and who can/will testify, or be so interrogated in a deposition, that the alleged debt was incurred legally and by the Defendant that you and/or your attorney intend to use as evidence in the aforementioned case.

 

ix.         Separate notarized statement(s), signed by respective individual(s), with original knowledge of any assignment(s), and who can/will testify, or be so interrogated in a deposition, that the alleged debt was legally transferred to your authority and capacity that you and/or your attorney intend to use as evidence in the aforementioned case.

 

x.          Any and all further documents you believe establish you have the authority and capacity, and are legally entitled to collect from the Defendant on the alleged outstanding account or debt related to you and XXX.

 

xi.         Any and all audible communication files, transcripts or notes, be they handwritten, computerized, typed or any other media, in your possession or available to you that relate to the Defendant and/or XXX that you and/or your attorney intend to use as evidence in the aforementioned case.

 

  xii.         Any and all records of communication regarding the reporting of the alleged account to any credit reporting agency, as well as you and/or your attorney accessing of Defendant’s credit report(s).

 

 xiii.         Any and all communications from you and/or your attorney to the Defendant explaining why you and/or your attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining Defendant’s credit report(s).

 

 xiv.         Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, in your possession or available to you that relate to the Defendant and/or you and/or XXX that you and/or your attorney intend to use as evidence in the aforementioned case;

 

 xv.         Qualifications you and/or your attorney will cite as evidence for Introduction of any and all experts you may call to testify.

 

 xvi.         Any expert witnesses that Plaintiff may call pursuant to rule 56.01(b)4 and 5, name, address, occupation, place of employment, qualifications to give an opinion, curriculum vitae, and state the subject matter expert is called to testify.

 

 xvii.         Any and all further documents and communications, beyond what have been previously requested, in your possession or available to you that you and/or your attorney intend to use as evidence in the aforementioned case.

 

 

So essentially everything. LOL

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If sanctions are not what you want to try then file a order to show cause, and to answer as to why they should not be found in contempt for refusing to comply with Mo rule 60(d)

  

I've not heard of this angle. Can you point me toward somewhere I might be able to research it, or explain it a bit?

You forgot to ask for their contract that assigns the rights to collect the debt, copy of the sales contract, Have they proved the own the alleged debt?

Request 5 asks for their assignment contract.

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If sanctions are not what you want to try then file a order to show cause, and to answer as to why they should not be found in contempt for refusing to comply with Mo rule 60(d)

 

 

 

I've not heard of this angle. Can you point me toward somewhere I might be able to research it, or explain it a bit?

 

 

So...I've been researching orders to show cause. It looks like in Missouri the court issues these against the disobedient party and may on their own as a result of a motion for sanctions, but either party can directly motion the court to do so also. That said, would it make sense to file both a motion for order to show cause why plaintiff should not be held in contempt for failing to provide discovery as well as a motion for sanctions for failing to provide discovery?

Motion for Order to Show Cause - initiate contempt proceedings

Motion for Sanctions - prevent them from entering anything in my discovery requests into evidence

 

Thoughts?

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I would file a motion to preclude any evidence not presented by now. That would include barring any witnesses not listed.

Forget show cause. You are not trying to punish the plaintiff, you are trying to win the case.

 

 

Yep file the motion to preclude. And when it is granted and they dismiss be sure and ask for with prejudice, or they will refile and start over.

 

How about simply going for the jugular and filing a motion for with prejudice judgment by default against the disobedient party?

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@☠2JDC

 

I agree with @lheart.  If they haven't provided the requested documentation ordered by the court within the allotted time, that's their problem.  I don't see how it could hurt to file a motion to preclude.  Even if it failed, the motion would be on record in case you lose and have to appeal.  (I'm not implying that you're going to lose the case.  :-)

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Okay. Hows this?

 

DEFENDANT’S MOTION IN LIMINE TO PRECLUDE EVIDENCE

 

            Comes now the Defendant and hereby moves this Court to prohibit the Plaintiff from introducing matters listed within Defendant’s Second Request for Production of Documents and Things into evidence. In support of motion, Defendant offers the following memorandum of points and authorities:

  1. On January 16th 2013 Defendant was served Plaintiff's Petition.
  2. On March 4th 2013 both parties appeared before this court and Defendant served requests for production of documents and things on the Plaintiff. By agreement of both parties, hearing was continued to April 9th 2013 to allow time for Plaintiffs response.
  3. On April 5th Plaintiff responded to Defendant's requests for production of documents and things. Plaintiffs response was an agreement to provide Defendant with unobjectionable discovery requests "as counsel may mutually agree."
  4. Both parties appeared before this court for additional business on May 14th. Final business this day was agreement by both parties to continue hearing until June 25th 2013 to allow time for discovery as mutually agreeable.
  5. On June 25th 2013 both parties appeared before this court and Defendant served second requests for production of documents and things on Plaintiff. By agreement of both parties, hearing was continued to September 3rd 2013 to allow more time for Plaintiffs response.
  6. On September 3rd 2013, both parties appeared before this court and agreed to allow the plaintiff even more time for discovery. The hearing was continued to October 8th.
  7. On September 25th 2013 the plaintiff was sent via United States Postal Service letters requesting response to the second requests for production of documents and things, from 92 days prior, within 9 days.
  8. On October 8th 2013 Defendant filed a Motion to Compel Discovery. Cause was continued to November 5th 2013 for hearing on Motion to Compel.
  9. On November 5th 2013 Defendants Motion to Compel Discovery was sustained and Plaintiff was ordered to respond within 20 days.
  10. Upon filing this Motion to Exclude Evidence Plaintiff has failed to comply with this court’s order within the allotted deadline.
  11. To date, Defendant has received no response to the multiple requests and court orders listed above.

WHEREFORE, Pursuant to Missouri rule of Civil Procedure 61.01(d)(1), Defendants, XXXXXX and YYYYYY respectfully motion this court to preclude all evidence Plaintiff, Autovest, LLC, their agent employee(s), officer(s), director(s), or any other person(s) acting on its behalf in the aforementioned civil case may bring forward as evidence which was not properly disclosed to the Defendant through the aforementioned discovery process.

 

Defendant further requests the Court order such other and further relief to which Defendant may be justly entitled, as well as any additional sanctions this court sees fitting for Plaintiffs failing to produce discovery items in due time, for bad faith and abuse of the judicial process in needlessly and vexatious increasing the cost and expense of this litigation and by forcing Defendant to make this motion.


So certified...
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Well...It looks like whatever happened to the forums the other day deleted a chunk of our conversation, so I'll post the motion I filed again. Hopefully it'll help others in need...

 

DEFENDANT’S MOTION FOR SANCTIONS

 

            Comes now the Defendants and hereby move this Court to sanction the Plaintiff(s) as it deems fit. In support of motion, Defendants offer the following memorandum of points and authorities:

  1. On January 16th 2013 Defendants were served Plaintiff's Petition.
     
  2. On March 4th 2013 both parties appeared before this court and Defendants served requests for production of documents and things on the Plaintiff(s). By agreement of both parties, hearing was continued to April 9th 2013 to allow time for Plaintiffs response.
     
  3. On April 5th Plaintiff responded to Defendant's requests for production of documents and things. Plaintiffs response was an agreement to provide Defendants with unobjectionable discovery requests "as counsel may mutually agree."
     
  4. Both parties appeared before this court for additional business on May 14th. Final business this day was agreement by both parties to continue hearing until June 25th 2013 to allow time for discovery as mutually agreeable.
     
  5. On June 25th 2013 both parties appeared before this court and Defendants served second requests for production of documents and things on Plaintiff(s). By agreement of both parties, hearing was continued to September 3rd 2013 to allow more time for Plaintiffs response.
     
  6. On September 3rd 2013, both parties appeared before this court and agreed to allow the plaintiff(s) even more time for discovery. The hearing was continued to October 8th.
     
  7. Rule 58.01( B) provides that the party upon whom the request for production of documents is served shall serve a written response, which includes any objections, within thirty days after the request.
     
  8. On September 25th 2013 because the Defendants had yet to receive discovery, the plaintiff was sent via United States Postal Service letters requesting response to the second requests for production of documents and things, from 92 days prior, within 9 days.
     
  9. On October 8th 2013 Defendants filed a Motion to Compel Discovery. Cause was continued to November 5th 2013 for hearing on Motion to Compel.
     
  10. On November 5th 2013 Defendants Motion to Compel Discovery was sustained and Plaintiff was ordered to respond within 20 days.
     
  11. Upon filing this Motion for Sanctions Plaintiff has failed to comply with this court’s order within this courts appointed deadline.
     
  12. As the facts demonstrate, Plaintiff(s) have obstructed and failed to cooperate in the discovery process for over eight months.
     
  13. Missouri rule of Civil Procedure 61.01(d)(1) states:

​If a party fails to respond that inspection will be permitted as requested, fails to permit inspection, or fails to produce documents and tangible things as requested under Rule 58.01, or timely files objections thereto that are thereafter overruled and the documents and things are not timely produced or inspection thereafter is not timely permitted, the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:
 

 (1) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibit the disobedient party from introducing designated matters in evidence.
 

(2) An order striking pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or, rendering a judgment by default against the disobedient party.
 

(3) An order treating as a contempt of court the failure to obey.
 

(4) An order requiring the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

  1. The trial court is vested with broad discretion to control discovery. Goede v. Aerojet General Corp., 143 S.W.3d 14, 22 (Mo.App. E.D.2004). This discretion includes the trial court's choice of remedies to address the non-disclosure of evidence during discovery. Such remedies include, but are not limited to, preclusion of evidence and entry of default judgment against the offending parties. Zimmer v. Fisher, 171 SW 3d 76 (Mo: Court of Appeals, Eastern Dist., 1st Div. 2005)

 WHEREFORE, Defendants, XXXXXX and XXXXXX respectfully motion this court to absolutely preclude all evidence Plaintiff, Autovest, LLC, their agent employee(s), officer(s), director(s), or any other person(s) acting on its behalf in the aforementioned civil case may bring forward as evidence which was requested and not properly disclosed to the Defendant through the aforementioned discovery process. Defendants further pray this Court enter Default Judgment With Prejudice against Plaintiff as well as any other further relief to which Defendant may be justly entitled and any additional sanctions this court sees fitting for Plaintiffs failing to produce discovery items in due time, for bad faith and abuse of the judicial process in needlessly and vexatiously increasing the cost and expense of this litigation and by forcing Defendant to make this motion.


So certified ...

 

 

Thanks again for everyone's help!!! :-D

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  • 4 weeks later...

Just to follow up...

 

We went to court yesterday and the Plaintiff dismissed the case.  :wave:

 

Their attorney said without prejudice, but I tried to challenge that with the judge since I had already filed my motion for sanctions which included dismissal with prejudice. The judge informed me his hands were tied since they dismissed it. I was a bit miffed since that essentially gave them as much time to regroup and come after us again, so I called my attorney to see what could be done. When he went to look at the case he noticed it showed dismissed with prejudice! This makes me wonder, if that was a clerical error by the judge or clerk, is there anything the plaintiff can do about it if they decide to start over?

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