Discovery Proceedings

During the course of litigation, each of the parties to the action is entitled to “discover” all of the relevant information and documents that the other side has concerning the matter. Article 31 of the CPLR governs disclosure, including (a) the nature and scope of discovery; (b) timing of discovery requests, objections and responses; and (c) remedies for non-compliance.

A. Methods of obtaining disclosure

There are various methods used to obtain disclosure from the plaintiff. Some of these methods are used to obtain information and testimony and others are used to obtain records and other items.

1. Interrogatories

The term “Interrogatory” is another word for “question.” The service of interrogatories allows the defendant to ask questions of the plaintiff about the case without having to conduct a formal deposition. Interrogatories are useful in credit card cases because the expense and hassle of conducting a deposition may not be justified based upon the amount involved, but there may be questions that the defendant needs answered in order to defend the case.

2. Document Production

Perhaps the most important discovery device utilized in litigation is the demand to see all of the documents in the possession, custody or control of the plaintiff. Documents in the credit card case may and probably should include the (a) account application; (b) credit card agreement; (c) amendments to the agreement; (d) account statements; (e) records of charges; (f) written disputes; (g) bills of sale regarding the chain of title to the account, if applicable; and (h) notices or other correspondence. The demand may be referred to as a “Notice to Produce,” “Request for the Production of Documents and Things,” or “Demand for Discovery and Inspection.”

3. Depositions

Each side to the action has the right to depose the other before a court reporter as to the facts and circumstances of the matter. In most collection cases, there are no depositions conducted because there is the associated cost of the court reporter’s bill for the deposition transcript. However, in the appropriate case, such as proving that the plaintiff has no personal knowledge of the case or establishing the basis for any asserted counterclaims, it may be advisable to depose the plaintiff. In this situation, a notice to take the plaintiff’s deposition should be served, along with the specification that a witness with personal knowledge of the facts be presented.

4. Notice to Admit

One of the least-used but most effective discovery devices is the “Notice to Admit” (sometimes referred to as the “Request for Admissions”). The Notice to Admit asks the party served to admit that the fact or statement alleged is true; if denied, an explanation as to why it is denied must be provided. In a credit card case, the plaintiff may use this discovery device to attempt to prove the existence of the account or the charges incurred, which may be refuted. If there is no response to the Notice to Admit from the party served, then the allegations of fact contained in it are deemed true and irrefutable.

5. Subpoena

Sometimes, the information or document needed to disprove the plaintiff’s case or prove a defense may be in the possession of a third party, such as the original credit grantor. In this case, a Subpoena may be served requiring the testimony and/or production of documents by that third party. A Subpoena for documents is known as a “Subpoena Duces Tecum.” By statute, the third party must receive a fee for its appearance, which must accompany the Subpoena.

6. Expert witness disclosure

In the vast majority of credit card cases, there will be no expert witness testimony. However, it is possible that an expert will be presented at trial to testify as to certain aspects of the case that may be more complex than the typical juror may encounter, and which necessitate the assistance of an expert (for instance, the expert may be called to testify as to the methods of compliance by the credit card company with the law). Upon being served with a demand for disclosure, the party must provide expert witness disclosure, including: the qualifications of the expert; the information relied upon in coming to an expert opinion; and the report itself.

B. Timing of discovery requests, objections and responses

Once both sides have served their pleadings (such as the Complaint; Answer; Reply to Counterclaims; etc.), the litigation enters into the “discovery” phase. All of the available discovery devices are available for use. The defendant should serve discovery demands with the Answer so that the plaintiff is forced to comply with them; the demands not only lead to useful information and documents to defend the case but “slow down the plaintiff’s truck” a bit.

For the most part, the party served with discovery demands must answer or respond to them within twenty days. Many times, the demands request responses that may have nothing to do with the case or are extremely onerous. The answering party is allowed to “object” to the demands on various grounds, including relevancy, vagueness, broadness, attorney-client privilege, and others.

In credit card cases, the plaintiff may serve a Notice to Admit preemptively, trying to nail down all of the facts of the case as soon as the defendant answers the Summons and Complaint. The hope is that the defendant does not timely respond to the Notice, so that the allegations contained in it are deemed “admitted” and not subject to controversy later. This is one example of the caution to be mindful of discovery timing.

Generally, discovery comes to a conclusion once the case has been placed onto the court’s trial calendar. Once this happens, discovery may only be had pursuant to further court order.

C. Remedies for non-compliance

If a party does not respond in a timely fashion to discovery demands, then the requesting party can request that the court take certain actions, including:

1. Compelling responses

Having the judge order the plaintiff to produce the requested information or documents by a certain date.

2. Preclusion of witnesses or documents

The judge can “preclude” or stop people from being witnesses at trial or certain documents from being accepted into evidence.

3. Striking a pleading

The ultimate remedy — dismissing the lawsuit altogether because the plaintiff is not complying with the discovery rules. This usually happens after the plaintiff has received a prior warning that it is not “playing by the rules.”

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