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Hi folks,

 

I had placed this message a couple weeks back, with no reply...in a thread on another topic...reposting here, in the hopes of getting some feedback

 

This, from 12/13/2013

Well, I just got off the phone with people at Pressler & Pressler and wow--the attorney himself managed to get on the horn at the end. How these people can sleep at night is beyond me. The guy says to me that he/they "didn't know" that my interrogatories were my interrogatories. Why, you ask? Because they didn't have the word "interrogatories" on it. I noted to him that I state in the document "I am seeking to initiate the discovery process on my own behalf", and asked him if that was too ambiguous, and he replied in the affirmative--that since I didn't use the word "interrogatory" he "didn't know". When I told him that the attorney the sent for the conference and I had a lengthy discussion about this issue, and she assured me the discovery would be answered within 45 days, he claimed he didn't know that...and I replied that unfortunately it is not my job to know what communication happens between your hired fill-in attorneys, and that I would like them answered, he said he'd be sending them out today.Seriously, though? He "didn't know" they were interrogatories because the statement "I am seeking to initiate the discovery process on my own behalf" was too vague. GImme a break lmao I'd love to hear him say that in front of the judge.

 

Update on 12/30/2013

Well, shocker of all shockers, I have never gotten the mail that Craig Stiller, attorney for Pressler & Pressler, said he'd mail that day or the next. Surprised? So, I called and left a voicemail just now. I reminded him of our conversation, and the fact that he hadn't known that the 5 questions I sent months ago WERE in fact interrogatories. I reminded him that prior to the 5 questions I have a paragraph, within it stating (verbatim) "This letter confirms that I, (my name), as defendant in the above reference matter, am seeing to initiate the discovery process on my own behalf." I reminded him that he must have thought that statement either too elusive or too vague to realize that these were my discovery requests. I also reminded him that, although they had clearly received the document as it was included in their own exhibits, that I had stayed additional time at court in order to get a copy made to furnish to their lackey attorney. I reminded him that though we are now past the 45 day deadline stipulated by the court, I would still like to receive them

The reason I did this folks, is to show a good faith effort on my behalf, also, seeing that this firm and this man are prone to lying, I didn't want them to say they did send it, as court is Jan 16th and this leaves ample time for them to resend (if they did, which we all know they didn't).

 

I guess my question is--is this for real for the attorney to say he "didn't know" my questions were interrogatories? And, should I keep calling, or should I let it go, as it is their fault for disobeying the courts guidelines.

 

 

Getting nervous about my day in court.

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I am not kidding, @BTO429, nor am I exaggerating. When I went to court earlier this month for my first preliminary conference, the lackey harried woman (I'm assuming she was an attorney, but she was a moron) they sent swore "no! no! We NEVER got any demand from you! I DON'T HAVE IT!" Funny, I said, that another attorney at P & P included a copy of my demands in his own paperwork. A little witchcraft, I teased. "Do you have it?" She asked. Sure, I do....I have all the paperwork for the case, unlike you. I showed her what I sent, and I showed her what I sent, which as annexed within their own paperwork. "Oh" she said. "I guess we did get it". (Now she's cooking with fire). Long story longer, I waited around with her while a clerk of the court made copies for her. It was agreed they would respond within 45 days to my requests, as I would theirs--all of this stipulated in the conference order.

When I hadn't gotten it and called P & P, I was passed around to a couple clueless lasses, one of which was adamant that they "never received that". Really, I said? This is where we're at again. Oi vey.

Finally, the attorney (one of them, at least), Craig Stiller gets on the phone. "Oh? Those were your interrogatories?" He stated. I said "You didn't know that?". "No, I didn't know". I READ to him verbatim what it said i.e. "I am initiating discovery on my own behalf". Then I said "that wasn't clear to you that it was an interrogatory". "NO, he said, that's not how we phrase it...it didn't look like what I'm used to seeing...it didn't say "interrogatory". I said "So it was what? Too vague" (pulling his leg). He replied in the affirmative--he didn't know! He promised me he'd send it out that day. Now about 18 days later...nothing.

I left the liar I mean attorney a voicemail.

Do you think I should let it rest there? As nervous as I am, I wish upon a star I could get this liar in court, and watch the judge's face as he hears this line of BS. But, he's in NJ, so I will probably get the woman they sent last time.

Funny, when we had the clerk copy the document for her, the clerk scolded her "You can't keep asking us to make copies for you--that's not why we're here. It's every week with you doing this. I'm not going to keep doing this for you". I guess a lot of their documents get lost in translation....

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Under,

 

You are the only one that can see the document you sent.  So really hard to determine if the otherside has a legitimate gripe.

 

Given that even JDB attroneys are smart enought to know how far they can push to limits of " The pro per filier didn't follow the rules of court/rules of procedure when making the request, therefore we didn't need to answer the request".

 

So before you stand up in court and tell your story about the idiot attorney who couldn't tell you wanted answer to interrogatories, you better make sure you are on a firm foundation......

 

I know in california where I am from they have guidlines that dictiate font size, pleading paper, set number description, etc.  I would assume your court has some similar guidlines.

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@skippy1960, I would never call the attorney an idiot. He is trying to be clever. Instead of idiot, I would say he's slimy, unethical, immoral, and a liar. But not an idiot!

 

It was from a form letter, so the layout was on point, it was a 12 font, which I assumed to be fairly standard. I did read the NY Code 31 - Disclosure. Nowhere did I see a specific mandate regarding font size or family for interrogatories, however those listed under forms of papers, NY Code 2101. I followed the stipulations described therein. Furthermore, a portion of that code states "A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within two days after the receipt thereof, he returns the paper to the party serving it with a statement of particular objections". Since no objection was ever raised, they have already waived their right to object. I like this statute, it's like "the doctrine of common sense, no BS".

 

They agreed to complete disclosure on the preliminary conference stipulation, and if they had problems with the document, that would have been an opportune time to bring this issue up, rather than agreeing to answer the document. That, in light of the fact they have failed to do so, makes them liars. I don't know the technical/court-approved term for "liar"..perhaps "inaccurate reporter"?

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I don't know your court rules but in AZ for example, we have to send a 'reminder' giving them another 10 days to respond FROM THE DATE OF THE REMINDER, so the longer you wait to send the reminder (in AZ at least) the longer they have to respond.

So before you do anything, check your rules to see what remedies you have when they fail to respond to discovery requests. And keep in mind that by not specifically stating you were making interrogatories on them, you probably weren't following the rules yourself. The court will probably grant you leniency in this regard but will then expect you to cut the other side some slack as well.

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Under,

 

Then the next logical step is to have the court order them to answer, by filing a Motion to Compel answers to Interrogatories.  You nor any other participant in civil litigation have to follow any of the rules, until ordered to do so by the court.

 

While I myself and you typcially would realize that following the rules to the game, is in our best interest for the long term.  Attorneys live in the game day in and day out.  You consider it  "slimy, unethical, immoral, and a liar".  I don't disagree that you can derive that persception.  I was shocked by my first case also.  Mid way through the second case, I realized that everyone is playing for keeps.

 

This means unless I set up by my actions and filings and force them into sitiutations that required them to be outside the rule book.  They would continue to skirt the rules and play the game their way.

 

So until you file a MTC and force the issue they will wait.  Look at it from their perspective.  You chiding them has no power.  They will only respect you once you use the court to force them to step into line.  If you become to big of a pain in the arse, they will dismiss and move on to easeir prey...

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They HAVE been ordered by the court to answer discovery, though. After the preliminary conference, both myself and opposing counsel were required to agree to this binding contract with our signatures. It contains directives, some of which were set, some of which we filled in--in respect to the 45 day limit, this was filled in as such and agreed to by both parties. Among the line items, discovery request are listed.

Is this not an order from the court? Though the judge was never present, it was signed for by both parties, and has been submitted into the proceedings by the law clerk who was there at the conference. I assumed this was/would be considered an "order of the court". If it will help my case, I will send another letter tomorrow reminding them of their obligation.

Thanks everyone for your guidance and feedback!

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Under,

Again I am from California so your rules would prevail. What you are describing is a Stipulation/Agreement, that both parties agree to abide by and perform.

Not sure how far outside the 45 days you are, letter won't hurt.

Here are the statutes that Californis uses for non-complinace in discovery. Again the only way the court acts is by Motion from a moving party. example: Motion for Sanctions

2023.020. Notwithstanding the outcome of the particular discovery

motion, the court shall impose a monetary sanction ordering that any

party or attorney who fails to confer as required pay the reasonable

expenses, including attorney's fees, incurred by anyone as a result

of that conduct.

2023.030. To the extent authorized by the chapter governing any

particular discovery method or any other provision of this title, the

court, after notice to any affected party, person, or attorney, and

after opportunity for hearing, may impose the following sanctions

against anyone engaging in conduct that is a misuse of the discovery

process:

(a) The court may impose a monetary sanction ordering that one

engaging in the misuse of the discovery process, or any attorney

advising that conduct, or both pay the reasonable expenses, including

attorney's fees, incurred by anyone as a result of that conduct. The

court may also impose this sanction on one unsuccessfully asserting

that another has engaged in the misuse of the discovery process, or

on any attorney who advised that assertion, or on both. If a monetary

sanction is authorized by any provision of this title, the court

shall impose that sanction unless it finds that the one subject to

the sanction acted with substantial justification or that other

circumstances make the imposition of the sanction unjust.

( B) The court may impose an issue sanction ordering that

designated facts shall be taken as established in the action in

accordance with the claim of the party adversely affected by the

misuse of the discovery process. The court may also impose an issue

sanction by an order prohibiting any party engaging in the misuse of

the discovery process from supporting or opposing designated claims

or defenses.

© The court may impose an evidence sanction by an order

prohibiting any party engaging in the misuse of the discovery process

from introducing designated matters in evidence.

(d) The court may impose a terminating sanction by one of the

following orders:

(1) An order striking out the pleadings or parts of the pleadings

of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an

order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of

that party.

(4) An order rendering a judgment by default against that party.

(e) The court may impose a contempt sanction by an order treating

the misuse of the discovery process as a contempt of court.

(f) (1) Notwithstanding subdivision (a), or any other section of

this title, absent exceptional circumstances, the court shall not

impose sanctions on a party or any attorney of a party for failure to

provide electronically stored information that has been lost,

damaged, altered, or overwritten as the result of the routine, good

faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any

obligation to preserve discoverable information.

As you can see there are alot of things you could ask the court to do, which could derail their case. You just need to find those things in your Rules of Civil Procedure, then Motion the Court and have the court inflict the pain......

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Thank you both.

It is in fact a stipulation agreement, not a motion to compel.

Let's see, court was November 7th, which puts us at 54 days.

 

Just to be clear as I do a little research:

1. I must use state and cannot use federal rules, i.e. 26-37?

2. Can I ask for money on my own behalf as I am pro se, i.e. my own attorney?

**just the thought of a chance to impose monetary sanctions on these um folks is reason enough for me to dedicate countless hours to reading rules**

 

Thanks again!

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Not knowing specifically NY Law but in most states there would be no sanctions for not following a stimulation to file discovery by a certain date.  It is an agreement between parties not a Court Order to compel.

 

You can not recover the costs for being your own attorney - If you paid an attorney for the Order to Compel and didn't meet the deadline you might get a sanction for extra attorney's fees.  

 

My understanding is Courts don't like to get involved in discovery issues unless they have to.  Thus has Harry pointed out, in AZ you first have to send them a reminder and include that in Motion to Compel if don't respond timely after the "reminder". 

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I'll send a letter--it can't hurt  found a lot of info

A number of recent cases, however, illustrate the consequences of taking the preliminary conference process lightly.

The consequences of failing to be prepared for a preliminary conference, to promptly comply with the terms of the order in a meaningful way and to diary for all necessary follow up proceedings can be devastating. In the past two years, the courts have imposed sanctions with increasing frequency based upon conduct directly related to the preliminary conference procedure. By statute, the trial and appellate courts have been provided a range of suitable penalties where a party fails to comply with a court order, ". . . wilfully fails to disclose information which the court finds ought to have been disclosed" or fails to appear at any scheduled call of the calendar. The failure to proffer a valid excuse for non-compliance permits the inference that failure to comply was willful. The decision as to whether or not to impose sanctions, ranging from costs to dismissal of a case, is within the discretion of the court. While the sanction should generally be commensurate with the nature and extent of the disobedience, the courts have upheld the ultimate sanction of striking a pleading for defaults related to the preliminary conference process ranging from failure to appear to failure to timely comply to failure to adequately respond. Faced with the potential dismissal of the complaint or defense, the fact that a motion to strike a pleading must be made on notice and cannot be incorporated in the terms of a preliminary conference order is of small comfort.

 

and later:

If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders as are just," including dismissal of an action (CPLR 3126).

 

and finally:

Once discovery demands directed to the information required for one's case are served, detailed reminder let

ters should be sent should the adversary fail to respond. If the responses are sent, but remain deficient, a letter should be immediately sent specifying the outstanding discovery and the basis upon which discovery is appropriate. The nature of each demand in question should be evident from a review of the letter. Upon implementation of this procedure, at the time of the preliminary conference, an outline of what remains outstanding will be evident from a review of the correspondence to counsel and may be easily incorporated into the handwritten order.

here: http://www.lbcclaw.com/article.php?news_id=31

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All other things being equal, the moment it was pointed out to the attorney at your conference that this was indeed your interrogatories, they have no excuse.  She had it in her hand, in the conference, and the clerk made copies.  At that moment, the attorney representing that firm who was there that day knew full well what you had sent and that they had the obligation to respond to it in the time frame.  Just my opinion, of course, but at this point I would say that you have a legit complaint.  And I would make sure that you follow the rules to the letter on pushing that complaint, but I would definitely push it.  They are unduly delaying at this point, and if you play your cards right the judge might agree. 

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Under,

 

Then the next logical step is to have the court order them to answer, by filing a Motion to Compel answers to Interrogatories.  You nor any other participant in civil litigation have to follow any of the rules, until ordered to do so by the court.

 

While I myself and you typcially would realize that following the rules to the game, is in our best interest for the long term.  Attorneys live in the game day in and day out.  You consider it  "slimy, unethical, immoral, and a liar".  I don't disagree that you can derive that persception.  I was shocked by my first case also.  Mid way through the second case, I realized that everyone is playing for keeps.

 

This means unless I set up by my actions and filings and force them into sitiutations that required them to be outside the rule book.  They would continue to skirt the rules and play the game their way.

 

So until you file a MTC and force the issue they will wait.  Look at it from their perspective.  You chiding them has no power.  They will only respect you once you use the court to force them to step into line.  If you become to big of a pain in the arse, they will dismiss and move on to easeir prey...

This is a great post.  However, in my opinion, this attorney has moved beyond what is acceptable.  Sure, they try to play the rules in their favor as much as possible.  But they have gone beyond the rules IMHO....they sent an attorney to the conference, where it was admitted that they did receive the OP's rogs.  It was specifically pointed out to her that day.  Since she bears the obligation of acting in good faith, one would logically conclude that she would have had to report back to the firm what happened at the conference.  Either way, courts have ruled that firms are responsible for what their individual attorneys do in cases like this.  He sent the rogs.  They claimed not to get them.  Then he showed them in the conference the actual paper.  Now they continue to claim that they never got them?  And even once the rogs are identified again, they are still stalling in answering. 

 

It is time for that motion to compel.  Skippy has it right in that you need to use the rules to force them to comply.  But if they continue this kind of action, I would move for sanctions at the appropriate time.

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Just to be clear as I do a little research:

1. I must use state and cannot use federal rules, i.e. 26-37?

2. Can I ask for money on my own behalf as I am pro se, i.e. my own attorney?

**just the thought of a chance to impose monetary sanctions on these um folks is reason enough for me to dedicate countless hours to reading rules**

 

You need to read the rules regardless. Letting discovery hang out there like is a huge mistake. You have an opportunity to take control of your case and you're letting it slip through your finger.

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Another option you have is an order to show cause,,, have them in front of the judge and let them answer as to why they have not complied, a little less harsh than a motion for sanctions, but the judge can determine sua sponte(of his own accord) if sanctions are proper, he may give them one last chance and tell them they have a couple days or so, if they still do not comply then file a motion for sanctions.

I think the order to show cause is more appropriate at this time in the game, sanctions are the last resort after you expend all your other methods of resolving the issue.

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@BTO429- Thanks, I am following the rules in my state (NY), wherein CPLR 3216 rules

 

Everyone else, thanks ever so much for your input. I plan to send out a letter tomorrow as a "reminder" so that I have proof I made the required good faith effort, as I can see this slimy attorney lying we never spoke (even though that in itself would be considered a conference and an effort to resolve/good faith effort) but I'm going to cover my tracks.

 

After that, I have this next conference Jan 16th. I am thinking the other attorney is going to want to set another date, like she did last time. But, I can wait all day to see the judge and I'm thinking that's what I should do, to ask him for sanctions (i.e. dismissal)--this is something I can ask for verbally yes, and her can determine sua sponte right?

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After that, I have this next conference Jan 16th. I am thinking the other attorney is going to want to set another date, like she did last time. But, I can wait all day to see the judge and I'm thinking that's what I should do, to ask him for sanctions (i.e. dismissal)--this is something I can ask for verbally yes, and her can determine sua sponte right?

 

You don't ask for sanctions verbally, they usually need to be in a written motion.

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Then you send that letter certified mail return receipt requested. They cannot wiggle out of the green card. Continue to hammer them on the discovery...if they fail to comply I would start with an order to show cause it can serve two purposes, in the order to show cause you state that they are to appear and answer as to why they have failed to follow the discovery rules and then you say and also to answer as to why the court should not find them in contempt and order sanctions to be imposed on them.

That is after you get their reply to the letter, give them a few days and if they still want to cry file the order.

You might even state in your letter you may want to remind him that he has a duty under oath, and that his first duty under the attorney canons are to the court,

Canon 1 of the New York code of professional responsibility

EC1-5

A lawyer should maintain high standards of professional conduct and should encourage other lawyers to do likewise. A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer's position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.

I am aware of your professional code of ethics, I will hold you to those standards, It is well established in the court system that attorneys have certain duties, and you should know these duties.

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@BTO429...thanks. I see nothing wrong in making these statements, so I'm just wondering where I would do that? Can I put it in the "friendly reminder" letter that I am drafting today?

 

Also, in looking over the preliminary conference order, on the line about discovery demands being served within 45 days--I noticed last night the attorney they sent did them a great disservice--she filled it out with information stating "will send responses to letter dated 2-xx-13 within 45 days". HAAAAA! How in the heck are they going to be able to get out of that? They referenced having the paper there. Not that I needed that proof, but there it is, in her own John Hancock. Unbeleivable "we didn't know" my Aunt Fanny!!!!!

 

Also, while I'm thinking of it, and I know many of you are not in NY, but--when we met last time when I walked in I thought I would see a judge, being a newcomer and not knowing anything, really. Judge was never there. I made a statement to the opposing counsel that I wanted to wait to see the Judge. She looked panicked, and said "you do? okay. okay we'll be here all day but we can do that...they will just tell us to complete discovery, but we can do that". In the end, I decided not to, because frankly, I didn't know what to ask--you know, it is overwhelming. But from the way she acted, it was something I could have asked for. So, do you think going in again in 2 weeks, this will be something I can ask for if it seemed I could have asked for it the last time? I'd like to see the judge. I'd like to give him the opportunity to impose sanction or at the very least start the fire on building his own personal ire. More NY Court Rules I've read clearly stipulate that the attorney who comes to court must be well-read on the case, not someone who just reads the file as they waltz in the door, which is clearly what I had. Can I write down the case law and quote that in court? Part of me, in hindsight, wishes I hadn't conferred with this attorney, and had waited to see the judge. Then we'd have her on record saying "we never got that document", and me saying "oh yes you did...it's in exhibits submitted on xyz date in your own reply". She's have looked like an a$$, at the very least.

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Hmmmm....ok....I feel like they have already been given warning. I think the "good faith" letter is in discovery, pre-conference. @Spikey I'm considering that. Looking into it right now, actually. The order they signed specifically referenced the letter of discovery that they have now had for almost a year and have never bothered to even attempt to reply to. I shouldn't have to ask them to please do what they have been ordered by the court to do. Seeing the semantics, meaning they themselves referenced the letter, I think maybe I AM better off not reminding them--it could be a good thing that they didn't answer.

 

Despite another poster saying since I didn't hire an attorney I can't ask for financial compensation this seems to imply I can:

 

"Unless otherwise provided by law for a specific type of claim, the court has full discretion to award reasonably incurred expenses and attorneys fees, and/or financial sanctions, against any party or attorney in any civil action or proceeding for engaging in frivolous conduct. Uniform R. 130-1.1(a).  (These provisions do not apply to frivolous claims in personal injury, wrongful death or property damage actions covered by CPLR 8303-a.)

Conduct is deemed to be frivolous if it is completely without merit in law and cannot be supported by a logical extension, modification or reversal of existing law. Uniform R. 130-1.1©(1). Frivolous conduct also includes action taken primarily to delay the litigation or harass or injure another, or the assertion of any material or factual statement known to be false. Uniform R. 130-1.1©(2) and (3)."

 

They are certainly delaying things. Nevermind lies that they purport to be fact, but can't back up (i.e. how much I owe)

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