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What happens if the plaintiff does not give me responses to my discovery requests?

 

The plaintiff must respond to your requests for discovery. Also the plaintiff must respond by the deadline for each type of discovery. There are different ways to make sure you get each kind of discovery if the plaintiff does not give it to you by the deadline.

If the plaintiff does not respond to your:

Request for production of documents

The plaintiff must respond to the request for production of documents within 30 days of when you served, or mailed the request.

Motion for order compelling discovery

If the plaintiff does not respond, you can file a motion for order compelling discovery

In the motion you explain to the judge that you asked the plaintiff to provide documents and they did not. Also tell the judge why you need the documents. Finally, ask the judge to order the plaintiff to give you the documents you requested. See sample Request for Production of Documents.

On the motion you also need to put the date and time for the hearing.

  1. Call the civil clerk’s office of your court to ask when “Motion day” is.  Motion day is the day and time of the week where the judge will hear motions like the one you are filing. Motion day is usually a certain day at a certain time each week. For example, in your district court, motion day might be Tuesdays at 10 am.
  2. Pick a motion day at least two weeks away so that you can give the plaintiff at least two weeks notice. There are technical rules about giving notice. With 2 weeks notice, you will be sure that you are following the rules.
  3. Write the date and time of the motion day you picked into the “Notice of hearing” section on your motion.
  4. Make two copies of everything;
  5. Mail the original motion to the court;
  6. Mail a copy to the plaintiff; and
  7. Always keep a copy for yourself.

When you go to court on the motion date.

  1. Check in with the clerk;
  2. Wait in the court room, until the clerk calls your name; 
  3. When you hear your name called, go to the front of the court room.
  4. Tell the judge:
    1. why you are in court – you asked the plaintiff to give you documents and they did not.
    2. what you need –
      1. the judge to order the plaintiff to give you the documents you requested in the Request for Production of Documents.
      2. the judge to order that the plaintiff give you these documents within a certain amount of time, like 2 weeks.

      For example

      If you asked the plaintiff to provide the contract that says you owe the debt and the Plaintiff did not provide it, tell the judge. If you asked the plaintiff to provide their record of what you owe and they did not, tell the judge. Tell the judge that if the plaintiff cannot provide proof of the debt amount, they cannot win their case. The accounting of the debt amount is the ledger.
    3. If you have taken time off of work to go to court, tell the judge. See preparing for court.

The judge may order the plaintiff to give you the documents within a certain time. If the judge orders the plaintiff to give you the documents, the plaintiff should give them to you by the date the judge says. If the plaintiff does not give you the documents by that date, you can file a second motion with the court.  This motion is called “motion to dismiss for plaintiff’s failure to comply with the court’s order to provide discovery”. The judge may not do what you ask, this is called “denying” your motion. If your motion is denied you can appeal. Try to talk with a lawyer if you are thinking about appealing.

Motion to Dismiss for the Plaintiff’s failure to comply with the court’s order

To file this second motion:

  1. Pick a hearing date 2 weeks away on the ‘motion day;’
  2. Send the original copy of the motion to the court;
  3. Send a copy to the plaintiff;
  4. Keep a copy for yourself. 

When you go to court on the motion date.

  1. Check-in with the clerk;
  2. Wait in the courtroom until the clerk calls your name;
  3.  When you hear your name called, go to the front of the room
  4. Tell the judge:
    1. You are in court because the judge ordered the plaintiff to provide you with documents and they did not; and
    2. You need the court to order that the case be dismissed because the plaintiff did not follow the court order;
  5. Finally, Tell the judge the case should be dismissed because the plaintiff cannot win their case if:
    1. You do not owe the debt, and
    2. you never admitted that you owe the debt, and
    3. the plaintiff did not give you the documents you asked for that show:
      • the amount of the debt, or
      • they are legally entitled to the money.

Request for Interrogatories

The plaintiff must give you responses to the request for interrogatories within 45 days of when you mailed the request.

If they do not give you a response you can send a final request to the plaintiff.  In the final request tell the plaintiff they have another 30 days to give you answers to your interrogatory requests.

Important

It is very important that the final request says in it, “the defendant can request a dismissal of the case or a final judgment if the plaintiff does not provide him/her with answers.” 

The plaintiff has 30 days from the date you served or mailed the final request to provide you with answers. If 40 days pass, and the Plaintiff has not answered, you can file an application for entry of final judgment or dismissal

When you give the court the application for entry of final judgment or dismissal, you must include two other papers with it:

  1. a copy of the final request you mailed several weeks ago in the case; and
  2. an affidavit. An affidavit is a sworn statement that you sign. It says that certain things are true.  See a sample affidavit.  The affidavit that you give to the court must include the following information:
    1. how you delivered the interrogatories to the plaintiff - mailed, hand delivered or had someone else serve them;
    2. the date you delivered the interrogatories to the plaintiff;
    3. 45 days after you first requested answers has passed and you have not received any answers;
    4. how you delivered the request for final answers to the plaintiff- mailed, hand delivered or had someone else serve them;
    5. the date you delivered the request for final answers to the plaintiff;
    6. 40 days after the final request has passed and you have not received any answers or objections; and
    7. you are now applying for a dismissal of the case.

Give the original application, the original affidavit and a copy of the final request to the court. Mail a copy to the Plaintiff. Keep a copy for yourself.

If you give the court clerk all three documents, she may be able to dismiss the case. You may not get a hearing.  However, a hearing may be set so be sure to check your mail and contact the court if you have any questions.

Request for admissions

The plaintiff must give you responses to your request for admissions within 30 days.  You do not need to do anything if you do not get a response. The plaintiff has 30 days to deny or object to the statements.  If the Plaintiff does not respond to your request for admissions within 30 days, then they have admitted each of the statements in your requests.  The court considers that the plaintiff admits all the statements are true if he does not deny or object to them. 

This is very important because if you wrote in your request for admissions “Plaintiff admits that it is not entitled to collect this debt.” And the plaintiff does not respond within 30 days then they have admitted that the statement is true.  You can tell the judge that they have admitted that they cannot collect the debt.


Produced by Mariah Jennings-Rampsi, South Coastal Counties Legal Services, with funding from American College of Bankruptcy
Created June 2012


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