Defendant's Discovery

Discovery is the pre-trial phase in a lawsuit in which the plaintiff and defendant, through the law of civil procedure, can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. The frequency of use of the above methods may be limited by your states law of civil procedure. Florida law states:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

You may find out that the debt collection attorney may not be forthcoming in providing you with the documents that you requested; for example, if you request the original signed contract or application for credit, the debt collection attorney may object, stating that the document is irrelevant to the case. In this case, you'll have to file a motion to compel. Also, small claims court is usually more relax when it comes to Discovery. Discovery is your chance to find out what supporting evidence the Plaintiff has in their possession; most likely, the only evidence the debt collection attorney has is a printout of alleged charges. Listed below is an example of what you might send the debt collection attorney in terms of Discovery. Sample Discovery Court Form. Always file original requests with the Clerk of Court and send copies to the debt collection attorney; keep a copy for yourself.

REQUEST TO PRODUCE

1. All invoices created by the Plaintiff.

2. All statements created by the Plaintiff.

3. All cancelled checks evidencing payments by Defendant to the Plaintiff on the account in suit.

4. All contracts, agreements and memoranda of agreements between the parties.

5. All correspondence received by the Plaintiff from the Defendant.

6. All correspondence sent by the Plaintiff to the Defendant.

7. Plaintiff's entire file concerning the matter which is herein in controversy.

8. Plaintiff's account payable ledger or book or record, kept in the usual course of Plaintiff's business, pertaining to the account of Defendant with Plaintiff.

9. Any written objections sent by Plaintiff to Defendant claiming objections to the payments to the account.

10. Any written notification sent by Plaintiff to Defendant claiming any objections to the payments to the account.

11. All documents identified in the Interrogatories filed with this Request to Produce.

12. All documents which would evidence why Defendant(s) failed to pay the debt as alleged in the Complaint.

13. All documents evidencing that Defendant(s) owes the money alleged in Plaintiff's Complaint.

14. All documents evidencing payments made by Defendant(s) on this account.

REQUEST FOR ADMISSIONS

1. You have no signed contract or signed application for credit which shows the Defendant applied for a Credit Card.

2. You have no signed contract or signed application for credit showing that an account was established in the Defendant's name and a Credit Card was issued to the Defendant.

3. You have no written contract entitled Cardmember Agreement that states the terms and conditions that the Defendant agreed to.

4. You have no written and signed contract stating the Defendant would be responsible for all charges made on the account in connection with all Credit Cards issued on the account.

5. You have no merchant receipts showing the charges that were incurred on the account in the sum of $X.

NOTICE OF SERVICE OF INTERROGATORIES

1. Please state the name, business and home addresses and telephone numbers, of the persons answering these interrogatories.

2. If you claim that the charges billed are correct please state, with particularity, how such charges are calculated.

3. Please list each person known to you or to your attorney who has personal knowledge of the matters involved in this lawsuit, and as to each, please state their name, home and business addresses and telephone numbers, and relationship to the Plaintiff(s), if any.

4. State the names, addresses, and telephone numbers of each person who you intend to call as a witness at the trial of this case, and provide a brief synopsis as to the anticipated testimony of each.

5. State the name of the person or employee of Plaintiff who is responsible for the generation of invoices and statements.

6. State the name and address of the person who is the records custodian of the books and records of Plaintiff.

7. With reference to each and every claim you have stated, state the factual basis for your claim, identify all persons who have knowledge of the facts supporting the claim and state the date and description of any documents which would support the claim.  

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