Discovery Guidelines

It’s part of motion practice and part of other preparation for an evidentiary hearing. Although it is rare that these matters are set for hearings where witnesses testify and documents are proffered in evidence, they are becoming more common. That’s why I am considering doing the “OBJECTION! Workshop” in August or November which is the companion to the Discovery and Motion Practice Workshop this coming Sunday and Monday. In fact I would like some feedback as to whether there is an appetite for a three-day workshop that includes, Discovery, Motion Practice and Trial Practice.

Repetition bears repeating as Yogi Berra is said to have opined. So far, these cases are won or lost in Motion Practice and Enforcement of Discovery demands. If you have a strong set of Discovery Requests that the Judge cannot disagree with (without risking getting slammed by an appellate court) then you should be able to direct the Court’s anger toward your opposition. Remember their weak point is that a full and truthful response to your Discovery Response would open up a can of worms for them with regulatory authority, the Department of Justice, Law enforcement in each state and civil suits. And it wouldn’t hurt to repeat that a few times when you get your chance at each hearing leading up to an evidentiary hearing or trial.

Remember that each jurisdiction has its own rules regarding limits on discovery, but eh over-riding one that has always exited since before there were written rules, is whether the Judge will see that your request is not meant to be annoying. It is meant to lead to the discovery of admissible evidence. The test of leading to the discovery of admissible evidence is important in that (1) that is why they call it “Discovery” instead of “pre-evidence review” and (2) you can ask broader questions than those which would be allowable in the evidentiary hearing, simply because you are searching for what WOULD be allowed in an evidentiary hearing.

The BIG mistake that many lawyers and especially pro se litigants make is that they think that discovery and motions are the time to win the case on its merits. No such thing exists. Unless the Judge strikes the pleadings of your opposition because he has had enough stalling and delay from them, you are not going to win anything by conducting discovery, filing a motion or responding to a motion.

So why do I say these cases are won or lost at the stage of discovery and Motion Practice? because it is at this point, or on the eve of a true evidential hearing, that the other side collapses IF they think you are going to draw blood in that hearing. Remember that experience shows that they give no hint of collapse until the hearing is underway or about to occur. They are not stupid and. Treating your opponent like an idiot, treating the Judge like a dunce, guarantees you more hurdles to jump than you came in with. Since you are already in an uphill battle, first do no harm, as they say in medicine.

The more specific you are, the easier it will be to explain to the Judge why their objection is nonsense. The less specific you are, the more room you give the other side to dance around you.

The tools of discovery applicable to these actions include the following:

• Interrogatories. I would limit the interrogatories (FIRST SET) to 25 including sub-parts, regardless of the rules. That eliminates or mitigates the argument that they are burdensome and over-reaching even given the wide latitude allowed in discovery.
• Requests to Produce: I would limit the request to produce (FIRST SET) to 10 items including sub-parts, regardless of the rules. That eliminates or mitigates the argument that they are burdensome and over-reaching even given the wide latitude allowed in discovery.
• Requests for Admission: Be Specific so it counts. If they answer truthfully, you should have something you can use in motion practice and evidentiary hearings. If they deny it, you can move for fees for having to prove something that they had denied.  If they object, it is an opportunity to bring it up for hearing, possibly along with a Motion to Compel the Answers, or a Motion for Better Answers wherein you point out where they are being evasive. Like other forms of discovery I recommend that you do it in small sets. I would limit the Requests to 10 for each set.
  
• Subpoena Duces Tecum for Deposition of Third Parties: This requires them to appear for questioning and to bring ALL documents pertaining to the “Loan” which you will identity in as much detail as possible. Missed by most and employed by virtually none. The signatories, witnesses and notaries are the weak links. The appraiser, the party representing the lender a the borrower’s closing, the title agent, the escrow agent, the mortgage broker, an officer of the appraisal company, an officer of the real estate brokerage, an officer of the mortgage brokerage. Missed by most and employed by virtually none. If you know of other parties who are not YET included in the litigation, you can subpoena them to come for (a) depositions upon written questions (b) deposition upon oral questions (where you are actually there) or (c) give them an out wherein if they produce the question you will continue the deposition until such time as you actually need a live person to testify. I like the last one, because it gives you plenty of time to come up with more targeted questions.
• Notice and/or Subpoena Duces Tecum for Deposition of Opposing Parties: This requires them to appear for questioning and to bring ALL documents pertaining to the “Loan” which you will identity in as much detail as possible. Missed by most and employed by virtually none. The signatories, witnesses and notaries are the weak links. The appraiser, the party representing the lender a the borrower’s closing, the title agent, the escrow agent, the mortgage broker, an officer of the appraisal company, an officer of the real estate brokerage, an officer of the mortgage brokerage. Missed by most and employed by virtually none. If you know of other parties who are not YET included in the litigation, you can subpoena them to come for (a) depositions upon written questions (i.e., you don’t need to appear) (b) deposition upon oral questions (where you are actually there in person or by video link) or (c) give them an out wherein if they produce the question you will continue the deposition until such time as you actually need a live person to testify. I like the last one, because it gives you plenty of time to come up with more targeted questions.
• Subpoena Duces Tecum for Deposition of Specific Individuals: This requires them to appear for questioning and to bring ALL documents pertaining to the “Loan” which you will identity in as much detail as possible. Missed by most and employed by virtually none. The signatories, witnesses and notaries are the weak links. The appraiser, the party representing the lender a the borrower’s closing, the title agent, the escrow agent, the mortgage broker, an officer of the appraisal company, an officer of the real estate brokerage, an officer of the mortgage brokerage. If you know of other parties who are not YET included in the litigation, you can subpoena them to come for (a) depositions upon written questions (b) deposition upon oral questions (where you are actually there) or (c) give them an out wherein if they produce the items requested you will continue the deposition until such time as you actually need a live person to testify. I like the last one, because it gives you plenty of time to come up with more targeted questions.
• Access to premises where records and computers are located. They already have an obligation to preserve evidence. You want to use any skulduggery you can find to justify the assertion that you lack confidence that they are doing so and are probably tampering with the evidence since the start of litigation and through the present and will continue to do so unless a forensic analyst is allowed to review their records, method of record-keeping, and their computer servicers and workstations where the forensic analyst will down load all the data and meta data including emails, memoranda, drafts, IM communication etc.

Make certain you have a memorandum ready to explain each request or question or subpoena. The memorandum should address

• jurisdiction
• subject matter (causes of action)
• Facts
• Statutory Law
• Common law precedent – civil
• Common law precedent – criminal
• Other criminal investigations regarding this topic. we sometimes refer to this as poisoning the well where the court is supposedly prejudiced by allegations of criminality. But the real purpose is to create greater weight to your persuasion of the Judge that that really IS something to look for here.

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