July 26, 2016

Who is Van Slam, and why are they contacting me?

Van Slam is a process server based in Alabama.

This company is hired by various debt collectors to properly serve you with a collection lawsuit in Alabama.

They're allowed to give the lawsuit to any adult that lives in your home, so you may not know about it right away.

If they have served you, then you need to take it seriously.

Some people will say, "Some person came to the house and gave me some papers, but they didn't look like a sheriff's deputy so I threw the papers away. It was all bogus."

Well, that may be true, but if Van Slam is serving you, then it is a real lawsuit. Now it may not have any merit -- it may be a bogus lawsuit -- but Van Slam is a legitimate company serving lawsuits.

They are a real company that serves real lawsuits.

Once you've been served, you have 14 days to respond in Small Claims and District Court.

You have 30 days if you've been sued in Circuit Court.

Contact Us.

If you've been served with a lawsuit and you're unsure what you should do, call us at 1-205-879-2447.

We will gladly walk you through your 5 options and help you decide the best course of action.

You can also fill out a contact form.

I look forward to chatting with you!

Have a great day.

-John G. Watts

July 19, 2016

Definition: Wage Garnishment

Wage garnishment is where a debt collector gets a judgment against you, goes to your employer with the judgment, tells your employer to hold back (approximately) 25% of your paycheck, and tells them to pay that 25% to them though the court.

They do have to fill out some forms before they actually do this, but they can garnish your wages if they have a judgment against you.

Unless there's a valid reason, your employer can't refuse to garnish you.

Your employer sends the money to the court, and the court gives the money to the debt collection lawyer.

For most of us, it's troubling to lose 25% of our paycheck.

The best option is to avoid this if you can.

If we're hired to handle a collection lawsuit, our objective is to either win the case, or make the other side drop the case so that there is no judgment.

But if there is a judgment, then you need to look at resolving/settling the case to avoid the garnishment.

Contact Us

If you're dealing with a debt collector, or you have any questions, feel free to call us at 1-205-879-2447. We can help you think through your options whether you have just been sued, whether you have a trial coming up, or there is already a judgment against you.

You can also fill out a contact form and we will get in touch with you as soon as possible.

I look forward to talking with you!

Have a great day.

-John G. Watts

July 18, 2016

Definition: Circuit Court

Circuit Court is the highest court in Alabama.

This is where we have jury trials.

In terms of debt collection lawsuits, Circuit Court is where cases with debt over $10,000 must be filed.

We can also be sued in Circuit Court for ejectment after a foreclosure if we haven't left the house.

It's critical to remember that Circuit Court is the most complicated in Alabama.

There are more rules, in addition to depositions and discovery.

To be blunt, it is hard to represent yourself in Circuit Court due to the complexity.

It is mission critical, whether you represent yourself or hire a lawyer, that a response is filed in court to the lawsuit. This must be done within 30 days of being served.

Contact Us

If you live in Alabama and you're dealing with a lawsuit in Circuit Court, you can reach us at 1-205-879-2447. We'll be happy to help you go over your options so you can discover the best option for you.

You can also fill out a contact form and we will get in touch with you as soon as possible.

I look forward to talking with you!

Have a great day.

- John G. Watts

July 14, 2016

Consumer protection lawsuits in federal court: part 13 -- request for admissions

A request for admission is where one party asks another party to admit or deny some fact or combination of fact and law. Let's take a look at this.

What rule allows for request for admissions?
These come under Federal Rule of Civil Procedure (FRCP) 36. At the bottom of this post we have copied the rule so you can read it for yourself.

Who can send out a request for admission?
Only parties so either the Plaintiff who brought the suit or the Defendant who has been sued can send these out. This means a non party -- someone not in the lawsuit -- can't use the lawsuit as an opportunity to question the Plaintiff or Defendant.

Who can the request for admission be sent to?
Only to the other side -- a party in the case. So, for example, the Plaintiff can't sent a request for admission to an insurance company that is not in the case.

Only a party can send a request for admission and only to another party.

Do these have to be sent in writing?
Yes, these are only in writing. In a sense a deposition (we'll talk about this type of discovery soon) is a verbal form of request for admissions, but technically a true request for admission has to be in writing.

What are some examples of request for admissions?
In a case against a debt collector:
**Admit you are a debt collector as defined by the FDCPA.
**Admit that you made a collection call to the Plaintiff on July 8, 2016.
**Admit that the attached recording accurately reflects the phone call between you and the Plaintiff on May 17, 2016.
**Admit that you received a cease and desist letter from Plaintiff on February 8, 2016.

In a credit reporting case:
**Admit that you received Plaintiff's written dispute concerning the Capital One account on April 27, 2016.
**Admit that you were under an obligation to investigate the dispute concerning the Capital One account once you received the Plaintiff's dispute letter.
**Admit that you verified the judgment on Plaintiff's credit report on May 15, 2016.
**Admit that the judgment you verified on April 7, 2016, was vacated by the Small Claims Court of Shelby County, Alabama, on or about February 14, 2016.

In a TCPA case against a company blowing up your cell phone with computer or robo dialers:
**Admit that you made over 100 calls to Plaintiff from the time you received Plaintiff's revocation letter until the present date.
**Admit that your dialing system qualifies as an ATDS under the TCPA.
**Admit that you gained Plaintiff's cell phone number from a skip trace.
**Admit that the Plaintiff never consented to you calling her cell phone number of 205-555-1212.
**Admit that in a call dated September 17, 2015, Plaintiff revoked any consent you had to call her cell phone number of 205-555-1212

In a foreclosure/RESPA case:
**Admit that you foreclosed while Plaintiff was less than 120 days behind on his mortgage.
**Admit that you received Plaintiff's request for information/notice of error on February 17, 2016.
**Admit that your response to Plaintiff's 12 request for information/notice of error letters was dated April 2, 2016, but not postmarked until April 12, 2016.
**Admit that Plaintiff submitted a loss mitigation package to you more than 38 days from the scheduled foreclosure date.
**Admit that you denied Plaintiff's loss mitigation package for the sole reason that it was untimely in your opinion.

How long does the other party have to answer the request for admissions?
30 days from receiving them.

What happens if a party does not answer the request for admissions?
They are considered "admitted".

What's the big deal about a request for admission being admitted?
None if it is true. It simply means the parties don't have to spend time fighting over an issue that has been admitted.

Can a party object to a request for admission to avoid having to admit it?
Apparently some defense lawyers think so based on how they answer these admissions. But this is not proper -- instead only legitimate objections are to be used and if part of the admission can be answered, then the party is to answer whatever it can.

Judges don't like parties playing games with request for admissions so this tends to cut down on people not taking these seriously.

If you live in Alabama and have any questions and don't have a lawyer, feel free to contact us.
Most likely you are reading this because we represent you but if you have another lawyer representing you, contact your lawyer. If you live in Alabama and don't have a lawyer (maybe you are researching before hiring a lawyer or filing suit), feel free to reach out to us.

You can call us at 205-879-2447 or contact us here.

Thanks for reading this and you can find our entire series here and the next one in this series will be on subpoenas which can go to non parties.

John Watts

PS -- here is the actual rule if you would like to read it:

(a) Scope and Procedure.

(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:

(A) facts, the application of law to fact, or opinions about either; and

(B) the genuineness of any described documents.

(2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.

(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.

(4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.

(5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.

(6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.

July 13, 2016

Definition: Affirmative Defenses

"Affirmative Defense" is a term comes up in many different types of litigation cases such as debt collection, false credit reporting, personal injury, etc.

An affirmative defense is where the defendant, the person being sued, can admit they did something; however, they win because of a defense they have.

That reason could be Statute of Limitations, which is where they say, "You waited too long to sue me."

Or it could be "failure to mitigate damages" which is where the defendant says, "You did not try to minimize your damages (stop the bleeding) so I'm not responsible."

Or any number of reasons.

They just have to list their defenses, or reasons.

Hope this is helpful to you.

If you have any questions you can reach us at 1-205-879-2447.

You can also fill out a contact form and we will get in touch with you as soon as possible.

Have a great day!

-John G. Watts

July 12, 2016

"What are the two reasons for punitive damages in Alabama?"


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When you're dealing with a company that has wronged you, you may wonder, "Why are punitive damages so important?"

Well, here are two reasons.

1.) To punish the defendant.

A company has to mess up pretty badly for them to receive punitive damages.

When they mess up, these damages come in to tell the company, "You've done something wrong, and since this has happened, we're going to punish you."

It could be a case of fraud, or reckless conduct, etc.

Regardless of what it is, the defendant needs to be punished.

If the defendant only had to compensate for their wrongs, then they could break it down into a simple accounting function and choose to say, "Well, we do have to pay money to compensate for what we do, but in the long run we make more money."

You may remember or have heard about the Ford Pinto fiasco -- Ford made cars it knew would catch on fire if hit from behind. It could have fixed the problem but it calculated the cost of a recall against the cost of settling cases where people were burned horribly and even died. The numbers favored not fixing the problem. So punitive damages change the calculations to better protect the community.

Punitive damages actually punish the defendant, which means trouble for them when they're looking at their options.

2.) To discourage the defendant, as well as other companies, from treating consumers poorly.

The reason it discourages bad conduct is because it helps them remember why they should follow the law, instead of breaking it.

We want them to remember and say, "Last time we broke the law in Alabama, we were hit with X amount of punitive damages. There's no way we're going to do that again."

When we use punitive damages, it shows other companies that are in the same industry that there are consequences for breaking the law.

The underlying reason for punitive damages is to protect the community you live in.

We want to take a stand against these companies that are hurting our community, and make it safe for our neighbors.

In Alabama, as well as other states, we want companies to be honest.

We want these companies to not harm us in any way.

Some people will say that punitive damages only really benefit one person.

While it is true that these damages will go to the injured person and their attorney, we use these damages to protect our community from future wrongs that companies that may want to hurt us.

We want these companies to think before they act wrongfully towards us.

When it's appropriate, punitive damages are very powerful.

If you have any questions, feel free to call us at 1-205-879-2447.

Have a great day!

-John G. Watts

July 7, 2016

Definition: "Block Party" when dealing with debt collectors

When we usually think of a block party, we think about spending time with our neighbors and grilling out.

Unfortunately, when a debt collector does a "block party", it's the opposite.

A block party is where a debt collector calls your neighbors and asks them to check on you.

This is in addition to calling you directly.

They won't say what they're trying to contact you about because it's a "private matter", but the debt collector will ask your neighbors to check in on you, and let you know what they called.

This results in sticky notes on your door, your neighbors knocking on your door to check on you, and your neighbors trying to stop you when they see you outside.

You may even receive phone calls and texts from your neighbors checking in on you.

You may wonder, "Why would they do this?"

The purpose of a block party is to grab your attention, and embarrass you in the process.

It's unfortunately an effective way to get you to pay them money.

However, it's also outrageously illegal to do.

When debt collectors order block parties, they're violating the FDCPA, or Fair Debt Collection Practices Act.

Under this law, they're only allowed to call third parties to get your phone number, place of employment, or address.

They know your phone number and address, because they've been calling you, and they know your address because they've been calling your neighbors.

They probably have been trying to contact you at work, in addition to every other way they've been trying to contact you.

Even though it's becoming more rare for a debt collection agency to actually do this, they pay big money when they do order these block parties.

Why would they do this if it's illegal?

Because it's one of the most effective ways to get you to pay them money.

It's incredibly illegal, but highly effective.

If you're dealing with a debt collector like this, or if you have any questions about debt collection, you can reach us by phone at 1-205-879-2447.

You can also fill out a contact form and we will get in touch with you as soon as possible.

Have a great day!

-John G. Watts

July 7, 2016

Definition: Answer to a lawsuit (complaint)

An answer is a document that we file into court, and in our answer we respond to the complaint.

The complaint is what starts the lawsuit and it explains what the lawsuit is about. So in the answer, the defendant (the one sued) has to either admit or deny each part of the complaint/lawsuit.

This is true whether we are talking about a personal injury case, a debt collection lawsuit, or where you have sued a company for violating federal law.

If we have denied everything in the complaint, then we list our affirmative defenses in the answer.

We'll talk about affirmative defenses in another article but basically the idea is where the defendant says "I did it, I'm guilty, but I get off because of statute of limitations or some other defense."

Hope you find these definition videos/articles helpful and if you live in Alabama, you can reach us at 1-205-879-2447.

Or you can fill out a contact form and we will get in touch with you as soon as possible.

Have a great day!

-John G. Watts

July 5, 2016

Definition: Bankruptcy


What is the definition of bankruptcy?

Bankruptcy is a term that is thrown around when we're dealing with debt.

You might you wonder, "What exactly is bankruptcy in Alabama?"

Here's a general definition:

Bankruptcy is where, because we have too much debt and we don't see a way to get out of it, we go to bankruptcy court to get protection under the bankruptcy code.

For consumers, there are two types of bankruptcy to look at.
There's a Chapter 7 and a Chapter 13 bankruptcy.

Chapter 7 Bankruptcy
A Chapter 7, also known as a straight bankruptcy, is where we pull all of our debts together.

After we bring them together, almost all of these debt are erased.

Generally (but there are exceptions), debts like student loans are not completely erased from your debt.

Chapter 13 Bankruptcy
A Chapter 13 bankruptcy, which is also known as debtor's court, is where we add up all of our debts in court and pay them off over a 3 or 5 year period.

Bankruptcy is seeking protection from debt.

Remember when we're talking about bankruptcy, we're talking about going to court to gain protection.
We also go there to file a Chapter 7 bankruptcy, which is where we completely wipe out our debt.

Or we go there to file a Chapter 13 bankruptcy, which is where we may payments over 3 or 5 years to get back on top of our finances.

If you have any questions, feel free to contact us.
We have other articles that deal with bankruptcy that you might want to look at.
If you live in the state of Alabama and you have any questions about bankruptcy, you can reach us by phone at 1-205-879-2447.

You can also fill out a contact form and we will get in touch with you as soon as we can.
We will be glad to help either answer questions or help you decide what you should do.

I look forward to talking with you.

Have a great day!

-John G. Watts

June 24, 2016

Consumer protection lawsuits in federal court: part 12 -- request for production of documents

Request for production of documents is a type of discovery that instead of asking for written answers (like interrogatories), this request is for paper and electronic documents. You can think of it as "Don't tell me what the documents or videos say, just give me the documents or videos etc."

What can you request with this type of discovery?
Basically any physical item or piece of data however it is stored. Here are examples:

**Emails
**Policy manuals
**Pictures
**Audio files
**Video files
**Inspect land or a building or an office
**CDs
**Thumb drives
**Cloud storage
**Letters
**Paper documents
**Bank records

Who can make the request?
Any party can use request for documents.

Who has to answer the request?
Only other parties -- this type of discovery is for the parties. Now if a non party has documents, we use subpoenas to get their documents and we'll cover those in a different article.

How long do you have to answer a request for documents?
30 days from when you receive the request.

Can you object to the request for documents?
Yes if there is something wrong with a particular request, you can object to it. The obligation is to answer the request as best as you can and only object to the part that is truly objectionable.

What if you don't answer them?
The other side can file a motion to compel.

What is a motion to compel?
This is where the "asking" party tells the court that the other side won't respond or won't respond properly. The court can take away objections, can force the non responsive side to pay for attorney fees, and can take other more drastic action.

What if you just want the other side to admit or deny certain facts and don't care about the documents?
Then you use what is known as a "Request for Admission" that we will discuss in our next article.

We hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts


PS -- the rule for request for production of documents is Federal Rule of Civil Procedure 34. Here is the text of that rule....

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

(a) In General. 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.

(b) Procedure.

(1) Contents of the Request. The request:

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced.

(2) Responses and Objections.

(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

(c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

June 23, 2016

Consumer protection lawsuits in federal court: part 11 -- interrogatories

One common form of discovery is called an interrogatory which means one party in your lawsuit sends the other party a written question (or series of questions) that must be answered in writing.

What is an interrogatory used for?
Interrogatories are used to get information from the other side. So you might ask things such as:

**Identify all calls you made to the Plaintiff, listing date, number called, number called from, substance of conversation, was the call recorded, length of call, etc.

**Explain in detail why you claim the statute of limitation is a valid defense in an Fair Debt Collection Practices Act lawsuit that was filed in 3 months from the date of your first call.

So the basic idea is you ask the other side for information -- sometimes we ask for broad information and sometimes the information is very narrow.

Who can send an interrogatory?
Only a party to the lawsuit. So that is you and the defendant who you sued.

Who can interrogatories be sent to?
Only to another party. So you can send interrogatories to the defendant or defendants and they can send them to you.

No one can send to a person or company who is not a party. For that, we would use subpoenas to get a non party to give a deposition or produce documents.

How long does the other side have to answer interrogatories?
Normally 30 days from when they receive them. In some ways 30 days sounds like a long time but the time goes by quickly and often the answering party wants an extension of time to answer the interrogatories.

And this 30 days is the time to answer or object. A party objects if they think the interrogatory is improper in some way.

How important is it to answer interrogatories?
Very. If you don't, or if the other side doesn't, then a motion to compel can be filed. Objections to a specific interrogatory can be waived if not answered or objected to in time.

How important is it to answer interrogatories completely?
Again it is very important. These answers can be referred to in a deposition and may appear in court filings so you want to make sure you have given a complete answer.

Normally defendants give very vague answers as they think lawyers who represent consumers won't push them on this. Sometimes we don't because their answer will come back to bite them at trial but other times we do push them to make them give us complete answers.

What happens if someone doesn't fully answer an interrogatory?
A several step process happens.

Step one is to write the other side and let them know there is a problem with one or more interrogatory answers. Give them a deadline to fix it and make sure it is clear what the supposed problem is so everyone is clear on this.

Step two (sometimes combined with step one) is to request the other side (through their lawyer) "meet and confer". That is a legal term that means you get together in person or over the phone to try and resolve your differences over the response to the interrogatories.

Federal judges want to know that you at least tried to get the other side to talk about the dispute.

Step three is to file a "motion to compel" which is where the judge is asked to get involved to decide who is wrong and who is right. We'll discuss this a bit later in our series on consumer protection federal lawsuits.

What if you (or the other side) want documents and not just written answers?
You send what are called "request for production of documents" and that will be our next article in our series of blog posts.

We hope this helps and look forward to continuing our series with you.

John Watts

PS -- If you have questions, give us a call at 205-879-2447 as long as you are in Alabama and don't have a lawyer representing you.

Oh and if you want to read the Federal Rules of Civil Procedure (Rule 33), here it is....

(a) In General.

(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).

(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.

(b) Answers and Objections.

(1) Responding Party. The interrogatories must be answered:

(A) by the party to whom they are directed; or

(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.

(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.

(c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.

(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and

(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

June 21, 2016

Consumer protection lawsuits in federal court: part 10 -- initial disclosures

After the parties have met to prepare a proposed scheduling order, then discovery begins and it starts with "initial disclosures" in a federal consumer protection lawsuit.

What are initial disclosures?
These include information and documents that each side gives to each other, without being asked. Almost all other forms of discovery only require a response when the other side asks you for documents or information.

But initial disclosures are given automatically.

What are some examples of initial disclosures?
**List of witnesses

**Documents that support a claim or a defense

**Documents that show damages

**Copies of insurance policies that can pay for a judgment in the case

Why do we have initial disclosures?
The idea is to make sure that there is a basic level of information and documents given to each side. This helps the parties evaluate the case and see if the case is one to settle.

If it is not going to settle right away, then the initial disclosures help the parties to see what is in dispute so that they can do the rest of the discovery process in the best and most efficient way possible.

When are initial disclosures due?
Normally these are given to each other 14 days after the parties meet to discuss deadlines. But often the scheduling order will say something different so it does vary in each case.

In our next article we'll discuss an "interrogatory" which is a common form of written discovery.

We hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

PS -- Here is the relevant text of the Rule 26 of the Federal Rules of Civil Procedure that apply to initial disclosures in case you would like to read this directly from the source:

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i) an action for review on an administrative record;

(ii) a forfeiture action in rem arising from a federal statute;

(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(v) an action to enforce or quash an administrative summons or subpoena;

(vi) an action by the United States to recover benefit payments;

(vii) an action by the United States to collect on a student loan guaranteed by the United States;

(viii) a proceeding ancillary to a proceeding in another court; and

(ix) an action to enforce an arbitration award.

(C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.

(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.