Conducting “Discovery” When You're Sued for Debt (Part 2)

What are interrogatories, how do you create them, and how can you use them?

Interrogatories are questions that the other side of a lawsuit must answer under oath. They are not “yes” and “no” type questions, though. Instead, they are “category” questions. To put it in the most basic way, you want the debt collector to tell you all the evidence they have that could be used against you, and you want to know everything anybody with the debt collector knows that might be used against them. Unfortunately, if you ask the questions just like that you will receive nothing but objections to your requests “for legal conclusions.” Instead, you must ask slightly more specific questions.

Before you get around to asking the interrogatories, however, you must have a general grasp of the suit against you and the claims (if any) you are making against them. Otherwise you won't know what you are seeking.

The Debt Collector's Case

You can tell what the debt collector needs to prove by what they put into their petition against you. If it is a simple case of them trying to collect an assigned debt you allegedly originally owed someone else, the debt collector will need to prove, among other things, that they properly own the debt, that it is your debt, how much it is, and that you have not paid it. One thing you will certainly want from them is the name and location of all the information and documents the debt collector received from the original creditor, since this is the information that will have the most bearing on their case.

Your Case against the Debt Collector

You may have a counterclaim against the debt collector. To figure out what questions you need to ask on that, you need to have a specific idea what you must prove. If your claim is under the Fair Debt Collection Practices Act (FDCPA), you will need to prove that the debt collector (or its agent) did something that was unfair, deceptive or “oppressive” in some way in its efforts to collect a debt, that you are a consumer, that it is a debt collector. So your questions will need to be directed towards these questions, among other things. To find out what you must prove, check your state law digest under the FDCPA and see what the “prima facie” case is.

Three Things to Remember

In creating your interrogatories, you should keep three things in mind: you have to make your questions sufficiently specific so they are not asking for much more than you need; but broad enough to get all the information you do need. These things can be a challenge, and there's really no substitute for seeing sample interrogatories for getting a sense of how to do them.

Make Your Interrogatories “Specific”

When asking interrogatories, you want to make the questions you ask sufficiently specific so that they inquire after the information you really want to know without, at the same time, asking for much more information that you do not necessarily want to know. If your questions are too broad, the other side will object that they are “unduly burdensome and oppressive,” “irrelevant and unlikely to lead to the discovery of admissible evidence,” etc. They will likely make these objections regardless of what you ask. But if your questions are good, you will be able to force them to provide you the answers by filing a motion to compel. Sample questions are, of course, provided in my litigation materials.

Regarding the Required Form

In the old days, you could file multi-part interrogatories that contained several categories all built into one question. For example, you might ask them to identify all complaints made in any form against them under the FDCPA and state the addresses of the other parties, the case names and numbers, or whether anyone complained to the Attorney General about it. In some jurisdictions, however, this type of question is not allowed. Find the local rules and find out whether you can ask “compound” or “conjunctive” requests. If you can, fine. If not, then you will have to break the questions into more manageable pieces. Be aware that if the rules impose limits on requests, the multi-part interrogatories may be regarded as more than one question. So you'll have to consider carefully what you want to ask.

Make Your Questions Sufficiently Broad

The other side of the “make your requests specific enough to be clear” is that you want to make sure your requests are sufficiently broad to get everything that might be important to the case. If they're too broad, they seek information that isn't relevant to your case,, but if they're too narrow they will allow the debt collector to avoid providing important documents. So you need to think carefully about the requests that you make.

Answering Interrogatories

In general, sometimes interrogatories are confusing, and you should never answer them if you are confused by the question. Because for interrogatories, unlike requests for admissions, for example, you will swear that your answers are true (that's what an affidavit or notarization means). They do matter, a lot. Therefore people should never say something they aren't sure about.

So if they ask you if a bank statement they show you is true or to point out any parts that may not be accurate, you could say it is if you know, absolutely, that the statement they are showing is for an account of yours and that every single charge on there was true. But maybe you don't know with complete certainty. If you don't, you say, “I don't know” in order to be truthful. If you do know, it's lying to say you don't know. If you don't know, it's lying to say you do. Be very rigorous is what I always suggested to my clients when I was practicing law, and that's probably still a good rule of thumb. Many people have a desire to please that gets the best of them in discovery. Remember that the debt collector wants to take your money and would leave you homeless in the street if that's what it might take.

Saying you don't know something on interrogatories may keep you from denying it at trial. But it is not evidence that the thing is true. The biggest problem the debt collectors have is showing that anything is true about your debt. If you admit it, you make that easy for them. If you don't they've got to find some way of actually getting real evidence in front of the court. And usually they don't have it.

An objection to interrogatories might well be that they ask intrusive or “oppressive” questions. The test is that the question must be “reasonably calculated to lead to the discovery of admissible evidence.” And whether you are divorced, or working, or... lots of things, don't really cast any light on whether you owe this debt collector any amount of money.

Figure it out. Debt collection actions are very simple. If they can show that you owe them money, then you owe it, and it doesn't matter if you lost your job or have excellent excuses for not paying (unless they are defenses). The flip side of that is that questions going beyond those issues are unduly intrusive.

Requests for Production

Requests for production normally ask for documents. Again, the requests are normally quite broad, as the other side normally wants to have all the documents you have on certain topics. In the debt law context, because the debt collectors usually start litigation without any actual documents at all that would prove you owe the money, they are seeking to get all the information they would need to prove the case. Or else to discourage you enough to cause you to give up the defense. We'll talk about objections to these, too, along with objections to interrogatories.

Requests for documents, or requests for production of documents (the more correct way of saying the same thing) are among the most powerful tools in the discovery tool box. What are they and how can you use them?

In a way, it is obvious what “requests for documents” are, isn't it? They are requests to the other side of a lawsuit to produce certain specified documents or things. These items must be in the “possession or control” of the party being requested them. If they are, the party requested must identify the documents or things and make clear how they will be physically produced. You should check your local rules, because sometimes the rules specify that the documents must actually be provided for the response (to the request for production) to be complete.

Making Requests for Production

In making your requests for production, you must bear three things in mind: you have to make your requests specific; you must follow local rules as to their form; and you must make the requests broad enough to gather all the materials you are seeking. These things can be a challenge.

If you know the exact documents you are seeking, you can specify them by date or name. And this will be the case wherever you are asking for the documents the debt collector has sent you (if you have kept them). The advantage of asking for documents you have already received, of course, is that if they provide them in discovery it will be undeniable that they came from the debt collector.

But you're often not going to know the date or title of the documents you are seeking. If, for example, you are asking for all the documents the debt collector has which might be used to prove that you owe any money, you will have no idea what those documents would be. So you must ask by category and more general description. If you have a claim under the Fair Debt Collection Practices Act (FDCPA), you will probably want to ask for “all policies and procedures they have to prevent” the sort of violation you are suing them for because they may defend your counterclaim by arguing they had made an “innocent” mistake that they had policies in place to prevent. Likewise, you'll probably want copies of any complaints similar to yours that anyone has made (as a proof the “policies” are bogus).

Follow the Required Form

In the old days, you could file multi-part requests for production: “provide all written documents complaining in any way about your debt collection practices and provide (a) your responses, if any to the complaint, (b) any documents created by any government agency having regulatory authority over you, (c) any documents you provided...” In some jurisdictions, however, this type of question is not allowed. Find the local rules and find out whether you can ask “compound” or “conjunctive” requests. If you can, fine. If not, then you will have to break the requests into more manageable pieces. Be aware that if the rules impose limits on requests, the multi-part requests may be regarded as more than one request.

Make Your Requests Broad Enough

The other side of the “make your requests specific enough to be clear” is that you want to make sure your requests are sufficiently broad to get everything that might be important to the case. If they're too broad, they seek information that isn't relevant to your case,, but if they're too narrow they will allow the debt collector to avoid providing important documents. So you need to think carefully about the requests that you make.

Responding to Requests for Production

The proper “response” to a request for production is only sometimes the documents themselves. Instead, you will give a document called a “response” which answers each of the requests by objecting, saying that the documents will be provided, objecting, no longer exist, never existed, etc. In some jurisdictions (check your Local Rules) you are also required to provide copies of the documents themselves, but in most you must simply state their availability and discuss with the other side how it will be accomplished.

Your objections to requests for production will be the same generally as to interrogatories, except that you are not swearing to the documents or responses, of course. You are responding to the request: Will provide, object, or do not have. Or you might say none exist. If they did exist but you no longer have them, you say (if you know) what became of them.

Remember that you only have to get documents that are in your “possession or control.” Sometimes that term can seem a little vague, but remember that parties can subpoena documents (require third parties to hand them over), so if you cannot simply require the documents be given to the other side, it is just as convenient for the debt collector to do that as it is for you. So the rule won't make you provide them, in general.

Requests for Admissions

Requests for admissions were designed to simplify litigation. They rarely work as intended, though, and function more as a trap for the careless than anything else. If you are being sued for debt, you should be aware of them, both because the requests can be lethal to you if you ignore them and because they are occasionally a gambit worth trying.

What Requests for Admissions Are

Requests for admission are, very simply, a request to the other side to admit certain things. Requests for Admissions, are different from interrogatories or requests for production in a couple of important ways. In the first place, by contrast to Requests for Production or Interrogatories, Requests for Admission are typically very narrow. They should ask you to admit a specific fact—just one fact—at a time. So you could get between five and fifty Requests for Admissions. The second difference is that, whereas if you do not respond to interrogatories or requests for documents, the remedy is a “motion to compel” (to get the court to force you to provide responses), with requests for admissions if you don't deny them within a time period established by the rules of civil procedure, they are taken as admitted.

So you must deny them within the time period! This is crucial. If you miss the time period, you will receive a motion for summary judgment and could lose the case in a hurry. Of course you can ask to respond to (deny) them then, and usually you will get to do so, so if this happens, give it a shot. But don't let it happen, because you're not guaranteed to be able to give answers if you miss the deadline, and sometimes the court won't let you. If you do fail to respond, they'll file a motion for summary judgment and try to get the whole case decided on that basis.

A Dirty Trick Debt Collectors Sometimes Play

That would be pretty easy for them, and to try to make it more likely, the lawyer for the debt collector may very well pull a trick to try to intimidate you. I've seen it many times. He or she will attach an affidavit form to the request, implying that your responses must be under oath. In my view, this is an unfair debt collection practice under the Fair Debt Collection Practices Act. Requests for Admission are not made under oath. To imply that they are is an attempt to intimidate a party into making admissions. Or to add to the general stress and difficulty of responding at all, with the increased probability of a failure to respond at all. I believe that people receiving this sort of requests for admissions should strongly consider amending their answer to include a counterclaim under the FDCPA.

What if You Deny Something You Should Have Admitted?

There is a possible “sanction” for wrongly denying an admission requested of you. And that is that the court could require you to pay the other side's attorneys fees for the time spent trying to prove something that was sufficiently obvious that you should have admitted. I am not personally aware of any court, under any circumstances, that has awarded that sanction to anybody. I am sure it happens, but is it a significant risk? You decide. I've actually never seen that happen, but you always want to have at least some sort of reason. The reason could be you don't know for sure, or that it's wrong,

or whatever. You don't give your reason in your responses, though. Most lawyers I know find some reason—just about any reason—to object to or deny them all. Send some to the debt collector, and you'll see what I mean.

A Use for the Requests

There is a type of request for admission that could be useful, though. This is a request that certain documents were created and sent by the debt collector. If you received a letter, for example, signed by John Doe Debt Collector, dated August 15, 2009, you might attach a copy to your requests for admission and ask them to admit that (1) the attached letter is a true and correct copy of a letter sent by John Doe Debt Collector, (2) that it was sent on or about August 15, 2009, (3) that John Doe was an employee of Debt Collector, (4) that John Doe sent the attached letter in the normal course of his employment with Debt Collector, and (5) that John Doe sent the attached letter in an attempt to collect a debt.

And you can repeat that process for any documents you may have received. If you sent some, you may ask them to admit that they received them. They'll probably deny every fact, but maybe they'll admit the documents.

Why You Should Consider Sending Some

Or maybe they'll forget to answer them at all, and that's why you also want to be sure to ask them to admit that each of their allegations regarding you owing them money is not true. And if they forget to respond, you can get the case dismissed.

Possible objections to Requests for Admissions

So for objections to requests for admissions, the objections will usually be that the request was “confusing” or “vague” if the requests are not crystal clear. And remember I said they were only for one thing. If they're not, the objection is that the request is “compound,” which means there's more than one part. Requests should be for one fact each. And you only admit them if you're absolutely sure.

For help defending yourself, I recommend either the Litigation Bundle or the Video Series. For in-depth guidance and help with motions to compel, get my Motion to Compel Pack.