Forcing the Other Side to Present Their Evidence Prior to Trial

[Arazu Toth]

My question involves court procedures for the state of: Arizona

What process does one utilize to acquire any and all evidence the opposing side is claiming exists to support their counterclaims prior to trial? For example if I move for Summary Judgment I want the Court to know the opposing side has no evidence to support their claims (note we're talking about documentation, etc. not evidence that would require deposition, etc).

I don't want to waste my discovery tools in order to disprove their allegations; but I want to demand they present their evidence supporting their allegations.

For example, they may claim "we have a copy of a document that shows you X"

...I want to see that document... prior to trial.. and prior to my filing for SJ. What's the technique to force them to provide this?

[cmre3456]

These are some discovery methods you can use for what you want and I'd use all three.

1. A request for documents. Google and see if you can find some samples.

2. A request for admissions. Google...

3. A subpoena duces tecum. That's where you subpoena them for a deposition, and request that they bring documents with them, of which you can keep a copy. Again, google for what that looks like.

Every time I used the term "request" it really is a demand they have to comply with.

[Arazu Toth]

OK, but why should I have to waste the tools which support discovery for my case and allegations in order to acquire the evidence they claim to have in support of theirs? I thought they had to share that evidence with me without having to demand it through RFA/RPD/NUI?

Isn't there another method to acquire the evidence they claim to have to support their allegations?

[cmre3456]

Isn't there another method to acquire the evidence they claim to have to support their allegations?

Nope. That's how it's done. Your "requests" are demands backed by the court. If they don't comply, the court will require it of them. You can't just call them and ask, LOL. Well, I guess you can if you want to be told to get lost, LOL.

If you are going to handle this yourself, you have to do the work. Otherwise, you need an attorney.

[Arazu Toth]

I understand; I'm just surprised. This means the opposing side could make completely frivolous allegations which "meet the pleading standards" yet have no supportive evidence of any kid, and are designed to waste the discovery tools which are supposed to be used in order to prove the plaintiff's case, not the defendants' counterclaims.

So, I'm required to use my limited discovery inquiries in order to get them to provide their evidence... Wow. And of course, this appears to be exactly what they are doing...

The other disconnect I have is related to the documentation they "claim" to have yet do not need to get from me. When are they required to submit it to the record as evidence? It's almost as if they're withholding materials to support their claims, and I do not know as a matter of process when they are supposed to submit these materials to evidence. If I'm to nail them not only for my allegations in SJ but also for fabricating theirs, I need to know they've missed their "final timeline" to submit their own evidence in support of their counterclaims... where is that defined?

[cmre3456]

I think you're missing the point. They don't have to provide you with anything unless you go through the process of demanding it in discovery. It doesn't really sound as if you want to be doing this and you need an attorney.

You have two ways to demand documents. You can serve them with a subpoena duces tecum and they show up for a deposition, bringing a range of documents you requested. The second is that you can serve them with a request for documents.

Again, check your court's rules for proper service and the proper form.

[Arazu Toth]

I'm not missing the point - I understanding I can use my discovery tools to prove/disprove their claims; I just look at it from a different perspective. We are limited as to the number of RFA/NUI/RPD we can submit to the opposing side without leave from the court. I am simply surprised I have to use the tools which are designed to procure evidence in support of my claims to disprove the opponents claims (i.e. similar to proving a negative - I shouldn't have to prove or disprove the other side's case when they have provided no admitted evidence to support their claims).

The other question I have is say I didn't use my discovery tools to disprove their false allegations; when would they be required to provide admitted evidence in support of their claims? With any MSJ they would submit, or would they be able to not provide anything until trial?

That's the other disconnect; the system doesn't want frivolous cases and claims making it to trial. What "mechanism" (or check and balance) is put in place to force an individual who is presenting allegations to submit the supported evidence prior to trial to determine if a trial is even warranted?

[cmre3456]

I'm not missing the point - I understanding I can use my discovery tools to prove/disprove their claims; I just look at it from a different perspective. We are limited as to the number of RFA/NUI/RPD we can submit to the opposing side without leave from the court. I am simply surprised I have to use the tools which are designed to procure evidence in support of my claims to disprove the opponents claims (i.e. similar to proving a negative - I shouldn't have to prove or disprove the other side's case when they have provided no admitted evidence to support their claims).

If you've been sued, you do have to prove them wrong at the same time they try to prove themselves right. It's adversarial.

The other question I have is say I didn't use my discovery tools to disprove their false allegations; when would they be required to provide admitted evidence in support of their claims? With any MSJ they would submit, or would they be able to not provide anything until trial?

They aren't going to have to provide anything, especially if they don't care if they win.

That's the other disconnect; the system doesn't want frivolous cases and claims making it to trial. What "mechanism" (or check and balance) is put in place to force an individual who is presenting allegations to submit the supported evidence prior to trial to determine if a trial is even warranted?

Discovery. You complete discovery and if they don't have the goods, you file for summary judgment.

I'm finished with this. There are only so many ways that I can word something. You have to complete discovery if you want to prove they don't have the evidence.

Your only other option is to wait for trial and get surprised by something you didn't expect. (which they would have been required to give you in discovery. In a request for documents you clearly say that it's an ongoing request so that if they come up with something else, they have to send it to you before trial.) At that moment you don't have time to get witnesses or documentation to refute them. Court is in session.

Bye, and good luck.

[Arazu Toth]

Actually, doesn't Fed.R.Civ.P 26(a)(1)(A)(ii) require them to provide me with all documentation to support their claims prior to trial?

...this is in Federal Court after all...

[cmre3456]

Oh, Federal court. OK, it's the same but different. The plaintiff schedules a discovery conference where the two parties develop a discovery plan and present it to the court. During that conference it is agreed what will be discovered. There is a time constraint.

It's still discovery, just organized by conference rather than the civil version where you usually just request all appertaining docs, names of witnesses, subpoena for depositions etc. outside of a conference and a formal plan.

You still have to go through the motions. You may have something if they've waited too long, but then the judge will probably just give them more time.