Request for production of documents

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Latest post Thu, Oct 7 2010 5:29 PM by Taxagent. 14 replies.
  • Mon, Sep 27 2010 11:15 PM

    • Alli Mcn
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    Request for production of documents

    The plaintiff files a contested divorce...pro se.

    The defendent hires a lawyer.

    The defendent enters all documents required that his lawyer tells him to.

    The plaintiff, does not enter all documents required and the defendents lawyer sends the pro se plaintiff a request for production of documents and has 30 days to produce 12 years of bank statements, credit card statements, all items in the household worth over $250.00, etc, etc, etc.

    What happens if the the plaintiff fails to produce all documents required?

    Is this actually part of discovery?

    Could the plaintiffs contested divorce be dismissed and the defendents counterclaim (uncontested, irretrievable breakdown) be used instead?

  • Mon, Sep 27 2010 11:25 PM In reply to

    Re: Request for production of documents

    Alli Mcn:

    What happens if the the plaintiff fails to produce all documents required?

    Defendant's attorney would file a Motion to Compel Production of Documents. The judge will order the plaintiff to comply on pain of a contempt citation.

    Alli Mcn:

    Is this actually part of discovery?

    Yes.

    Alli Mcn:

    Could the plaintiffs contested divorce be dismissed and the defendents counterclaim (uncontested, irretrievable breakdown) be used instead?

    No.

    As long as either spouse disagrees with the other about anything, it's contested, even if you say it ain't.

     

    • The right of the people 
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    • shall not be infringed.
  • Mon, Sep 27 2010 11:27 PM In reply to

    Re: Request for production of documents

    The plaintiff should hire a lawyer.  Clearly, plaintiff is in over their head.

    Ok  I'm not a lawyer.  This is only my opinion /suggestion.  Most Replys' are based on information provided by the "original post" (OP).

  • Thu, Oct 7 2010 12:48 PM In reply to

    • mudpie
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    Re: Request for production of documents

    Actually you dont have to provide any documentation until the judge orders Discovery in writing. Documentation is normally limited to what you have in your possession, and creating a 12 yo bank statement out of thin air is overburdening. Some documents can be withheld, but without an attorney you wont know which ones etc. Get an attorney.

  • Thu, Oct 7 2010 1:00 PM In reply to

    Re: Request for production of documents

    mudpie:
    Actually you dont have to provide any documentation until the judge orders Discovery in writing.

    That's not the case in most states. Discovery can generally be conducted by the parties without any need for a court order. Indeed, under the civil procedure rules for most states as well as the federal rules, the court doesn't get involved much in discovery at all, other than ruling on disputes that arise between the parties. The rules are designed so that the parties do most of this stuff themselves, without having to burden the court with it.

  • Thu, Oct 7 2010 1:02 PM In reply to

    • Drew
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    Re: Request for production of documents

    I'm not up on specifics--but until court says do it--its not required. Now it may be at do it state per rules--I don't know.

     

    But from experience the first round of requests is also an invitation for you with considerable care to object to each request, line by line, by some reason in the rules , and force a debate , line by line, as is your right--and requests that are pure fishing trips or for docuements not in your possession , or have no relevancy to the matter at hand may be solid  reasons to get request denied.

    Example:

    I once lost one--I requested docuements the defendant was required by law to have in his possession--he did not have them, admitted same, addmitted they existed,  but they were in possession of his business agent a few thousand feet away--court held he had NO duty to go get them and turn them over. 

    And I could not burden enemy to produce anything out of thin air not already in its possession.

     



  • Thu, Oct 7 2010 1:12 PM In reply to

    Re: Request for production of documents

    Drew:
    I'm not up on specifics--but until court says do it--its not required. Now it may be at do it state per rules--I don't know.

    Again, not under the rules of most states. Parties generally do NOT have to get a court order before conducting discovery. For example, since the poster's account info says he's in Florida, Florida Rule of Civil Procedure 1.350(b), which sets out the procedure for requesting documents from other parties, starts off "Without leave of court the request may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading on that party. " (bolding added). The phrase "without leave of court" tells you that court permission is not needed prior to making the request on the other party.

  • Thu, Oct 7 2010 1:20 PM In reply to

    • mudpie
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    Re: Request for production of documents

    There you have it...Fl rules on civil procedure. Federal rules require an order.

    Be that as it may, during my divorce I marked all my documents "priveledged" once I spoke to an attorney about them. I was not challenged again to produce those journals and working papers.

  • Thu, Oct 7 2010 1:23 PM In reply to

    • Drew
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    Re: Request for production of documents

    Good! 

    Now given that OP has such a request he can go thru it request by request and object to each one for which there is a reasonable reason in the rule book to do so--and force a debate in court or someplace.

    There is no reason to go on a fishing trip or to recreate nonexisting docuements on round one IF one properly objects 

    But OP needs to play by FL  rule book.



  • Thu, Oct 7 2010 2:03 PM In reply to

    • Alli Mcn
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    Re: Request for production of documents

    Actually, my question is regarding a couple divorcing in Massachusetts. The Pro Se plaintiff started discovery before rule 410 was even completed.

  • Thu, Oct 7 2010 2:13 PM In reply to

    Re: Request for production of documents

    mudpie:
    Federal rules require an order.

    Sorry, but that's not true, either. For example, FRCP Rule 34(a), which governs requests for documents from other parties, states:

    "A party may serve on any other party a request within the scope of Rule 26(b):

    (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

    (A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

    (B) any designated tangible things; or

    (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it."

    (bolding added).

    Thus, as I highlighted at the beginning of the rule, the process is to serve the request on the opposing party. There is no requirement for a court order. The court will only get involved if there is a dispute between the parties concerning the discovery, e.g. one party requests a protective order, etc.

  • Thu, Oct 7 2010 2:28 PM In reply to

    Re: Request for production of documents

    Alli Mcn:
    Actually, my question is regarding a couple divorcing in Massachusetts.

    That's why it's a good idea to include the state where the llitigation is taking place in your original post; each state's law is different. However, it is still the case that in MA no court order is needed prior to commencing discovery. The MA rules are loosely patterned after the federal rules. But MA rule 34(b) is even more explicit that no order is needed:

    "(b) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts."

    (bolding added).

    The rule states that no leave of court is needed prior to discovery; the parties simply initiate that themselves.

    Alli Mcn:
    The Pro Se plaintiff started discovery before rule 410 was even completed.

    Rule 410 of what? The MA rules of civil procedure are numbered 1 - 85; there is no Rule 410.

  • Thu, Oct 7 2010 2:58 PM In reply to

    • Alli Mcn
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    Re: Request for production of documents

    I believe 410 is a financial disclosure. The plaintiffs premature discovery request consisted of medical records & arrest records.

  • Thu, Oct 7 2010 3:25 PM In reply to

    • Drew
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    Re: Request for production of documents

    The object on that basis!



  • Thu, Oct 7 2010 5:29 PM In reply to

    Re: Request for production of documents

    Alli Mcn:
    I believe 410 is a financial disclosure. The plaintiffs premature discovery request consisted of medical records & arrest records.

    Well, it seems that Massachussetts is a little different in that divorce cases in that state are handled by the probate court, so it is the probate court rules that apply. The probate court has a set of rules specific to just divorce cases, something that the states in which I've practiced don't do. They are found here: MA rules of procedure for divorce.

    Rule 410 is found in the probate court supplemental rules of procedure. Rule 401 is actually the financial disclosure rule; Rule 410 is the mandatory self-disclosure rule.

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