This proof can be established by actual evidence (documents, testimony, etc...), the plaintiffs allegations and admissions, or adverse inferrences (as described in the previous post.)

If the defendant offers "some" evidence indicating that the limitations period has run, then the plaintiff must offer some evidence that it has not. If the plaintiff can offer no evidence that the limitations period has not run, when the defendant has offered some positive evidence, then the defendant is entitled to a directed verdict. (This is called the shifting burden of production. Its a bit more complex than this though.)

But simply raising the defense, without any positive evidence indicating that the limitations period has run, would not require the plaintiff to offer contrary evidence. If the defendant raises the defense and does not offer any evidence, then the defendant cannot prevail on the defense as a matter of law.

(Most defense attornies will include in their answers as many affirmative defenses as possible, as a matter of course. I have yet to see an Answer which did not include the limitations defense, even when it is clearly inapplicable. What happens though, is that no evidence is offered on these issues, and the court will simply ignore the defense.)

And still, if the issue of limitations has been raised, then the plaintiff (as well as the defendant) may seek discovery from either party, or any non-privileged nonparty, on this issue. Thus, the plaintiff may depose or call to the witness stand the defendant and ask him when he first defaulted, or seek production of any of the defendants relevant records. Likewise, the defendant may depose the plaintiff or ask for their records.

The fact that requested information may be contrary to the information holders interest at trial is not a reason to withhold evidence.

As for interrogatories, they must be answered as completely and truthfully as possible. One may object to any particular interrogatory on the grounds that the information requested is privileged, or is irrelevant and is not reasonably calculated to lead to the discovery of relevant evidence. If a party objects to an interrogatory, then the court will rule on the objection and determine whether the interrogatory must be answered.

Failure to answer an interrogatory entirely (i.e. not even objecting to it) can result in the other party filing a Motion to Compel. The court will rule on the Motion to Compel and decide whether the interrogatory must be answered. If the court orders that the interrogatory be answered, and the party continues to refuse to answer, then the court may impose sanctions upon the non-complying party. Such sanctions could include dismissal of any claims, exclusion of evidence, adverse jury instructions, monetary sanctions, attorney fees, or contempt of court.

Follow Ups:

Re: Whychat - concerning discovery requests lawguy 03/15/03 (0)
Re: Whychat - concerning discovery requests Why Chat 03/15/03 (1)

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