Whychat - concerning discovery requests
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Posted by lawguy
(68.119.155.69) on March 15, 2003 at 18:13:57:
In the previous thread I see where a point of confusion came up. I had said in one thread something to the extent of the "plaintiff" can request discovery regarding the accrual date from the "defendant." That should have been reversed. My point was that if plaintiff sues defendant, and defendant raises a SOL defense, then during the discovery phase the "defendant" can request documents or other discoverable evidence regarding the date the cause of action accrued. For example, Credit Card Co. (plaintiff) sues CC holder (defendant) on a defaulted credit card. Defendant raises the defense of SOL in his answer. During discovery, defendant may submit interrogatories and requests for production of documents indicating when the default occurred. Plaintiff would be required to turn over these documents. If plaintiff refuses to do so, defendant may make a Motion to Compel. If the court grants the motion to compel and plaintiff refuses, then plaintiff will face sanctions, including possible dismissal of claim or an adverse jury instruction. If plaintiff responds to the discovery request by saying that they do not have such records, or that they are so old that they no longer have them, then defendant can request an adverse jury instruction (this would also apply in a bench trial where the judge is the finder of fact). An adverse instruction means that if the party who should have the evidence does not produce it when requested, it can be inferred that the evidence would be against that party, and that the jury can find against that party with respect to that factual issue. In our example, CC holder requests the account records from the CC company. Company says "we don't keep recrods going that far back." Since the company was the holder of the evidence, CC holder can now request the court for an adverse jury instruction, instructing the jury to find that the date of default occurred such that the limitations period has run. The court can give such an instruction in its discretion, but the court's ruling is subject to review for abuse of discretion. Of course, these things don't occur in small claims court, only in trial courts.
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