First, kudos to this site and to all of you. Awesome you guys spend time helping the little guy. Iâ??m sure Iâ??ll be posting a few other things, but Iâ??d like to start here. Monday I have a hearing that the court granted for a Motion for an Order Compelling Discovery. This is about two old credit card debts, one is past SOL, and the other might also be past SOL, but since the OC, First Consumers National Bank, is no longer in business and I cannot subpoena the documents (no address), Iâ??m relying on the Plaintiff to produce the evidence; hence my motion to compel discovery. (Also have counterclaim and am disputing the amount of the debt claimed.) Anyways, I received a letter today from the Plaintiffâ??s attorney (last minute, of course), asking the court to dismiss my motion to compel discovery. Hereâ??s what the letter states: The Defendantâ??s Motion for an Order Compelling Discovery is premised on a purported failure by the Plaintiff to comply with â??Chapter 804 of the Wisconsin statutes.â? Since the discovery request upon which this motion is based was dated and served on Plaintiffâ??s counsel on January 4, 2008 by mail, pursuant to Wis. Stat. 804.09(2), Plaintiffâ??s response to that discovery request in not due until February 6, 2008 [30 days from January 4th is February 3rd, plus 3 days since it was served by mail pursuant to Wis. Stat. 801.15(5)(a) is February 6th]. Accordingly, since the time within which the Plaintiff is to respond to the Defendantâ??s discovery request has not even expired as of the date of the hearing on this motion, there is no legal or factual basis for the Defendantâ??s motion and it should be summarily denied. Dated this 31st day of January, 2008. Hereâ??s the timeline: 2/01/08 Hearing, originally scheduled for this day 1/04/08 Mailed notarized letters requesting Motion for Order Compelling Discovery of Documents 1/18/08 2/01/08 hearing removed from calendar, motion hearing scheduled 1/31/08 Plaintiff responds, asking to deny Defendantâ??s motion for discovery 2/04/08 Motion hearing, to be held on this day Hereâ??s some questions. Kindly help. First, I filed letters with the court I received from the Plaintiffâ??s attorney, where he states the Plaintiff was requesting the documents I requested. The letters began five months ago. So Iâ??m wondering why the attorney is asking the court to dismiss my motion, when the attorney has been stating all along for the past five months, he has been in the process of requesting the documents from the OC? Second, I had been assuming all along that the hearing was for an order to compel discovery. Should I just ask the commissioner to allow him additional time but not dismiss my motion? Explain that it would unfairly prejudice my defense? Third, does anyone have any insight what this is all about? I can understand that the JDB, the Plaintiff, might not be able to get the documents, but why not just state that? The attorney also will have testimony by telephone. So please give me some advice, about what they are trying to pull here. They do not want the court to grant discovery; they do not want to produce documents; but what they do want is a judgment, with no evidence, except a witness from a company that is no longer in business. Sorry this is so long. Please HELP!
Just my $.02, from reading the order, it appears that you can't move to compel discovery until they've failed to meet a deadline. From what I've seen, the strategy is to wait and delay wherever possible so expecting that and being ready for it might be a good thing. It looks like you jumped the gun on your motion and might need to review the Civil Rules of Procedure.
To be blunt - you don't know what you are doing. have you read your local Rules of Civil Procedure? Once you serve opposing counsel discovery, counsel has some much time to respond. What transpired five months ago has no bearing on the discovery process. Counsel has asked the judge to dismiss your Compel motion because it is untimely. You will be lucky if the judge does not make you pay the attorney foe his time in drafting the motion. It took me all of five or six seconds to find an address for FCNB. There credit card portfolio was sold, see: http://www.secinfo.com/dsvRs.39q.9.htm
You didn't follow the rules. But you only served discovery less than 30 days ago. That means it's not due yet. I hope you have a nice judge because you can't file a motion to compel unless you follow the rules to do that, well, you can file a motion that says anything on it, it just won't be granted. Because that would be admiting that they can't prove their complaint. Why would they do that? Do you think they are stupid? I think it's you that is pulling something here. If you do things right, maybe you can get them to give you discovery, but if you do stuff like you seem to be doing, you are likely to get in trouble. At least you understand what they are doing. Now it's time for you to follow the rules when you respond to what they are doing. Only you can help you. You have to read the rules for YOUR court. No one online can do that for you. No one online can or will give you legal advice other than get a lawyer and/or read the rules.
Just wanted to say I won; the attorney told the judge they'd dismiss with prejudice. Can't say I appreciated the little innuendos, telling me I didn't have a clue what I was doing. I thought this site was for advice, and heck, a bit of encouragement. Turns out my motion to compel got me a nice dismissal. Go figure.
Sorry you felt like there were "innuendoes," but if you ask for advise, it's entirely possible that there will be people who feel you may have been mistaken, especially after you've already taken some actions on your own and the judge's order says the same thing. But, what counts are results and as they say, "all's well that ends well." Congratulations.
I'm also new to the board, and to be honest, this is the first thread I've read. But I was kinda surprised at what certainly appeared to be snotty replies to Lil_Endian. It appears there's a great deal of information and intelligence here, but one needs to remember we're all at different places learning. And I think for the most part, each of us started learning out of necessity, to protect ourselves or others. So encouragement would be really nice. The more of us that are fighting the system, the better our chances of learning the right techniques.
While encouragement is nice, and you will find it freely given, the truth sometimes isn't what one wants to hear. While some courts may overlook procedural errors by pro se defendants, others won't. To encourage someone in incorrect procedures is doing a disservice. This poster had a good outcome. It might not have been the same in other situations.
If you motioned to compel before the time was up for them to return discovery, that's wrong everywhere, I'm pretty sure. So I don't think I posted any "innuendos". So you recommend copying your plan, not following the court rules? See, that would be bad advice for other people who are dealing with courts that are more insistant on the rules being followed. You are aware that they could've attempted sanctions for bringing a motion to compel without following the rules, right?
You haven't seen "snotty" until you piss off a judge. But the first thing to remember is that you are obligated to follow the rules of your court. And you can't do that if you don't read your rules and follow them So he asked what about what he'd done, a motion to compel before the time for returning discovery was up. I think he's lucky that the court didn't get angry. Of course given the other side's actions, perhaps the court was right to ignore the pro se error.
When dealing with the court one has to remember all judges were once lawyers.When a defendant defends themself pro se some lawyer is not making any money.
DumbBob, "You haven't seen "snotty" until you piss off a judge." Unfortunately, I saw this "snotty" last week. That's why I'm here, trying to figure out what to do. I got seriously railroaded.
Hedwig said, "While encouragement is nice, and you will find it freely given, the truth sometimes isn't what one wants to hear." I completely agree, and in the end, that was my own mentality based on the posts and while in court. At one point, I said to the commissioner, "I'm sorry if I did anything wrong." He looked a little puzzled, looked down at some papers, and said, "No one is saying you did something wrong." I now realize I shouldn't have said that. During the whole time the commissioner was willing to allow more time and set another hearing on the calendar for discovery. However, did I do something wrong? It's possible. In my first post, one of the statutes the attorney was pointing out was from a chapter on venue and commencement, which states they would have an additional three days if receiving an action by mail. Of course, in the chapter on discovery, it states they only have 30 days. And the hearing was held on the 30th day. So, I'm not an attorney, and I haven't got an inkling; but I do know that it was an issue that would have been overlooked, and the attorney would have had to come back to court again on my motion to compel. So if anyone is reading this (Wisconsin here) and going through something similar, this is what I would do differently if they aren't sending you your request for documents. Don't procrastinate. Send the attorney a notarized letter with a subject heading, stating something like, Motion to Compel Discovery of Documents. Number the documents you are requesting and give a detailed reason for your request. And don't give them a reason to deny your request by asking for anything other than what's related to discovery (e.g. base your discovery on your affirmative defenses). If there is time, give them 30 days to answer before sending your Motion to Compel Discovery to the clerk of court; if there isn't time, don't wait the 30 days, send motion to court, and leave the decision up to the judge. I know a lot of you are saying, read your court procedures, read your court procedures. I agree, but a lot of times, there isn't enough information--no road map. Question for Dumb Bob: Do you know what tone is?
In my opinion, that's not a terrible thing to say. I bet that a lot of what you say will be based on responding to how the individual judge is acting. The additional time for mailing can be confusing. I don't know what your rules say, but many courts require that to compel, you must first meet by phone or in person with the other side and try to work out the differences. In some courts, the court cannot compel unless you do this, even if the judge wants to compel. How would you feel if someone gave you discovery and then filed a motion to compel without giving you the 30 days to respond? That wouldn't be fair to you, and it isn't fair to the other side either. Of course you say that the other side was playing the usual games, so we shouldn't feel too bad. But we should remember that we should follow the rules as closely as possible to leave the fewest possible problems when trying to convince the judge we are right. I don't know your rules, but you usually send interrogatories and requests for documents in the proper form. This is before you try to compel anything. You then give them their 30 days. You then contact them and ask for the materials again and ask for reasons why they haven't provided them. Then when you do your motion to compel, you certify that you've done all this. How you certify this might be different in different courts. Why isn't there time? You mean because you started your discovery late or because the trial has been set early? Under some rules, you'd ask for more time for discovery when the other side is trying a summary judgment by using rule 56(f). Of course the judge could just give you more time. If they haven't provided discovery, the judge could decide that's unfair. There's no road map at all. You could be there and have a judge that hates pro se defendants. What do you do? I am pretty dumb, but I think I do.
