Discovery – Getting Information for the Case

• What is discovery?
• What are initial disclosures?
• What if the other party does not provide the initial disclosures?
• What are Interrogatories?
• What is a Request for Production?
• What does the Plaintiff have to prove if it is a debt buyer?
• How do I make the debt buyer prove it owns the debt?

What is discovery?

Discovery is the process of exchanging information between both sides. Usually, you do not file discovery information with the court. It is information for the parties to use as they prepare their cases. The reason for discovery is to prevent surprises at trial and to encourage parties to settle cases based on as complete information as possible. Alaska Civil Rules 26-37 include information about the different kinds of discovery processes such as Initial Disclosures, Interrogatories and a Request for Production.

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What are initial disclosures?

Initial disclosures are a type of discovery that is a list of evidence and information each party must give the other without being asked. The parties do not file the documents they exchange through the discovery process with the court, they only exchange it between the parties. For District Court cases, Alaska Civil Rule 26 includes the list of what should be exchanged.

For debt cases, the rule often means that the Plaintiff will provide the Defendant with:

• A copy of any written agreement or contract.
• Payment history.
• Balance Statement.
• If the Plaintiff is a credit card company, a "charge off" or summary of when the company stopped trying to collect the debt.
• If the Plaintiff bought the debt, documents showing the sale and an affidavit from someone explaining the documents.
• If the case is related to a bounced check, a copy of the letter or letters sent to the Defendant prior to starting the case.
• If the case is related to a payday loan, a copy of the letter sent to the Defendant prior to starting the case.

If you are the Defendant and you have a counterclaim or affirmative defense, you may need to give the Plaintiff any documents you have about your case that you did not include with your Answer.

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What if the other party does not provide the initial disclosures?

If the other party does not do what they are supposed to do under this rule, you may have to ask the judge to order the party to provide the information, usually through a motion. You can read more about filing motions.

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What are Interrogatories?

Interrogatories are a type of discovery where you ask the other party written questions and they are supposed to provide written responses. You may use Interrogators to prepare for trial, but you do not have to. Civil Rule 33 discusses Interrogatories.

You can ask 30 separate questions. If you want to ask more or if the other party does not respond to your Interrogatories, you can file a motion, asking the judge to order what you need. You can read more about filing motions.

When you send your written questions, the other party must:

• give a complete answer or explain why they object to answering,
• sign the answers, and
• return the answers to you within 30 days.

You mail or hand deliver the Interrogatories to the other party, or the other party's lawyer if there is one. You do not have to give a copy to the Court.

Some common Interrogatories in a debt case, particularly if the Plaintiff is a debt buyer, are listed below.

1. Please send me a detailed accounting of how you came up with the amount you are suing me for, explaining what is principal, what is interest, and what is fees. For interest and fees, please tell me what part of the agreement gave you the right to charge the interest or fees.
2. List every sale of the debt you are suing me for, with the name of the buyer and the seller, the date of the sale, any every document you will use to prove the sale.
3. List the name of every person who will testify about the sale of the debt, including their name and contact information, the name of their employer, the experience they have with making and keeping debt sale records, and what they will testify about.
4. For every document provided in the requests for production, please list if the document will be introduced as evidence and, if so, who will testify about it at trial.

You can ask Interrogatories using:

• Interrogatories & Requests for Production, TF-255 [Fill-In PDF]

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What is a Request for Production?

A Request for Production is a type of discovery where you provide the other party with a written request asking for copies of documents or other items. You may use this option to prepare for trial, but you do not have to. Alaska Civil Rule 34 discusses Requests for Production of documents and information.

The other party must respond to a Request for Production in 30 days. Usually the other party will just send you a copy of documents, although under the rule, they are allowed to just make the document available for you to copy. If you can't work it out, you may have to ask the judge to help decide what is a fair solution, usually through a motion. You can read more about filing motions.

You mail or hand deliver the Request for Production to the other party, or the other party's lawyer if there is one. You do not have to give a copy to the Court.

Some common Requests for Production in a debt case, particularly if the Plaintiff is a debt buyer, are listed below.

• Please send me a copy of the original agreement that you say led to my debt, and any changes that were made to the agreement.
• Please send me all proof of any sale of the debt you say I owe that you will use to prove you own the debt.

You can ask Requests for Production using:

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What does the Plaintiff have to prove if it is a debt buyer?

Debt buyers are companies that buy debts and try to collect them. Some debts are sold more than once so it can be confusing to know who actually owns the debt. If a company mistakenly sued someone to collect a debt it didn't own and won the lawsuit, the real debt owner may sue that person again to collect the same debt. Only the current owner should be able to collect the debt. You can require the company that bought the debt to provide evidence that it owns your debt.

The debt buyer needs to show:

1. The original contract.
2. Proof of a sale.
3. Proof they are the buyer.
4. If your debt was sold more than once, there must be records of these steps for each sale that can be admitted in court as evidence.

Debt buyers usually rely on business records to show they own the debt. For a debt case, the records generally must meet certain rules:

1. The documents showing the sale must have been made close in time to the sale.
2. The documents must be made by someone who knows how the business keeps track of debt sales.
3. Making and keeping debt sale records must be a regular part of the business.

Someone has to testify, either at trial or in an affidavit before trial, to explain how the records meet these three requirements. For a debt case, this usually means that the person writing an affidavit or the witness, must:

1. work for the company that made the records. Many debt buyers use companies with very similar names to help collect debts. The witness must work for the company who kept the records. For example, a witness who works for "Happy Debt Buyers Credit Management Company" is not qualified to explain records showing that a debt was sold to "Happy Debt Buyers, LLC."
2. understand how debt sales work and how their company keeps records about them.
3. I have learned how debt sale records are made from first-hand experience, not just from being told how the records are made during training.

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How do I make the debt buyer prove it owns the debt?

You do not have to take any steps to make the debt buyer prove it owns the debt. It will have to prove it at trial. Before trial, review the information about what debt buyers have to prove.

If you want to know what evidence the Plaintiff has, or to try to end the case before trial, you can ask for proof through Interrogatories and Requests for Production. If you think the responses to the Interrogatories and Requests for Production do not show enough evidence to prove that the Plaintiff owns the debt, you can file a Motion for Summary Judgment You can read more about Summary Judgment.

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Rev. 28 February 2019 © Alaska Court System www.courts.alaska.gov Contact Us

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