ASK FOR DISCOVERY EVEN WHEN YOU CAN'T

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JON LINDEMEN: FILE DISCOVERY THE MOMENT YOU LAY HANDS ON THE FILE

The pretenders like to get you in a Catch-22. Actually you can hardly blame them. As many have privately told me and other lawyers “we know we can’t win this on the merits.” Jon has 10 years military experience so he thinks in terms of winning and not necessarily following precise rules. His orders are to win, not to play around and have coffee and tell jokes with opposing counsel.

Like most lawyers, Jon had followed the conventional rules and filed discovery at the “appropriate time.” As anyone else who followed that procedure quickly found out, in the “opposite-day” of foreclosure litigation, you can’t file discovery until you do  other things like mediate, and then on appeal, you can’t complain that you didn’t have the facts, because you didn’t even try to conduct discovery. That’s another thing I saw happen at the BAP oral argument last week. The lawyer didn’t even have 3 days to get discovery requests in, but the panel deemed him to have waived it for purposes of the appeal.

So taking my queue from Jon, who changed his entire procedure around, I now strongly and urgently recommend that you (1) send out a QWR, (2) send out a DVL (3) send out discovery the moment you lay hands on the file — including when you file a motion for enlargement of time. Once it is in the record then nothing can take it out.

THEN when  the issue of mediation, modification or other issues as to standing or real party in interest or whether the decider is present for negotiations, you can say they never responded to the the QWR, DVL or discovery. The issue is present and the other side is left to whine that you filed discovery too early. By the way, the rules allow early discovery, they just allow a little extra time to answer.

“We have no sworn statement or representation as to the facts of where the original documents are being kept, who has them and why they have them and to whom a debt is owed, and if a debt is owed, how many people are paying on it besides the alleged borrower? Who are we litigating with? With whom are we supposed to negotiate for modification or mediation?”

THEN whether you are coming up from state civil, federal civil or bankruptcy court, you CAN say that you lack specificity because they refused to answer the requests for discovery and violated court orders in the process.

PRACTICE HINT: DO NOT GRANT EXTENSIONS. FILE MOTIONS TO COMPEL THE DAY THE DISCOVERY IS DUE (NOT A MOMENT BEFORE BECAUSE THEN IT IS PREMATURE) AND SET IT DOWN FOR HEARING ON MOTION CALENDAR. NEXT TIME MOVE FOR SANCTIONS. NEXT TIME UP MOVE FOR CONTEMPT. Send the appropriate letter on state statute or rule of civil procedure for spurious pleadings. MAKE SURE YOU INCLUDE REQUESTS FOR ADMISSIONS AND THAT YOU MOVE ASAP TO DEEM THEIR EVASIVE ANSWERS AS ADMISSIONS AND SET THAT DOWN FOR HEARING AS WELL.

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