How to Conduct Discovery in a Collections Lawsuit

[danpride51]

My question involves collection proceedings in the State of: Utah

Hello everyone,

My wife is being sued for money owed to an apartment complex which she lived at three years ago. We met with the attorney representing the apartment complex prior to the pretrial but we were unable to come to an agreement. We have a trial date and a discovery date but I am having a very hard time finding a template for a discovery request. I have found a lot of information regarding the rules of discovery in Utah but can't seem to find a form number or even a sample. Any help with this matter would be greatly appreciated as I would like to get the request submitted to the attorney as soon as possible.

Daniel

[adjusterjack]

It's called a "Request for the Production of Documents."

Here's a simple format:

http://www.utcourts.gov/resources/ru..._Documents.pdf

Here's a more comprehensive format that includes interrogatories and requests for admissions:

http://www.utahbar.org/wp-content/up...rogatories.pdf

Make sure you use the heading format of the second sample regardless of which format you choose and make sure that you put the Certificate of Service on the end of it and file a copy with the court after you send it to the plaintiff's lawyer.

[danpride51]

Thank you very much!

- - - Updated - - -

Since we are representing ourselves, what address should I use on the request for where the documents will be examined/copied?

[adjusterjack]

I think I would just change this:

Pursuant to Rule 34 of the Utah Rules of Civil Procedure, plaintiff requests
defendant to produce the documents specified below for inspection and copying on
_____________, 20__, at ___:____ ___.m. at the offices of plaintiff's counsel.

To this:

Pursuant to Rule 34 of the Utah Rules of Civil Procedure, defendant requests
plaintiff to produce the documents specified below and mail them to defendant's address __________________________ postmarked no later than ______________.

If you like, you can add: or notify defendant when the documents are ready and defendant will pick them up at plaintiff's attorney's office no later than ____________.

Or something like that.

[danpride51]

Adjusterjack,

Thank you again for all of your help! My wife and I were able to send off the request for the production of documents in a timely manner. If the plaintiff's attorney does not submit a similar request to my wife, do we have to submit any and all evidence that we plan on utilizing during the trial to the judge/attorney? Any information would be greatly appreciated and thank you in advance.

Daniel

[adjusterjack]

How much is she being sued for?

What court level?

Small claims (justice court)?

District court?

[danpride51]

The original amount was for $820 including attorney fees if the case did not go to trial. The case is being handled in District court. Did the attorney decide to sue at this level so they may ask for more attorney's fees?

[adjusterjack]

The original amount was for $820 including attorney fees if the case did not go to trial. The case is being handled in District court. Did the attorney decide to sue at this level so they may ask for more attorney's fees?

That's possible. Did her lease have a bilateral attorney fee provision?

Something like: In the event of litigation, loser pays winner's attorney fees.

If it didn't have an attorney fee provision, then the plaintiff is unlikely to be awarded attorney fees.

Might also be that there are considerably more procedural technicalities that can trip up a non-attorney.

That being said, please become familiar with the Utah Rules of Civil Procedure:

http://www.utcourts.gov/resources/rules/urcp/

Rule 26 answers your question about sending stuff to the other party:

http://www.utcourts.gov/resources/ru...e=urcp026.html

It gives you a list of stuff to disclose "without waiting for a discovery request."


What is your wife's defense against the amount claimed?

[danpride51]

The attorney's office refused to provide any information prior to the pretrial as they claimed my wife was being "mean" on the phone. They ended up submitting the lease and the addendum for "damages" to the court as evidence. We have requested they produce all receipts and work orders for the damages/repairs in question, and original move-in/move-out condition forms. They have offered no proof that my wife was notified of the damages after moving out of the apartment or proof that the damages/repairs were even taken care of. If they can produce these requested items, I would probably push to settle prior to the trial, if not, the burden falls on them to prove what damages were present and if they were actually repaired.

As far as the attorney's fees provision, I believe there is verbiage in the lease that states the occupant will be held responsible for all attorney's fee, court fees, and interest in the event of failing to pay a debt.

[adjusterjack]

The attorney's office refused to provide any information prior to the pretrial as they claimed my wife was being "mean" on the phone. They ended up submitting the lease and the addendum for "damages" to the court as evidence. We have requested they produce all receipts and work orders for the damages/repairs in question, and original move-in/move-out condition forms.

I suggest you read both the landlord tenant statute and the security deposit statute:

http://www.le.state.ut.us/xcode/Titl...00010118000101

http://www.le.state.ut.us/xcode/Titl...00010118000101

Note that there isn't anything in the security deposit statute that requires the landlord to prove that the repairs were made.

They have offered no proof that my wife was notified of the damages

That's important. Might give rise to a counter-claim for the return of her security deposit. See Section 5 of the security deposit law. Did she provide her new address to the landlord upon moving out?

Read Rule 13 about counterclaims:

http://www.utcourts.gov/resources/ru...e=urcp013.html

If you didn't file a counterclaim with your answer to the complaint it looks like you have to file a motion with the court to allow you to do it now.

If they can produce these requested items, I would probably push to settle prior to the trial, if not, the burden falls on them to prove what damages were present and if they were actually repaired.

That's not exactly how burden of proof works. A wise attorney (Taxing Matters) who participates here has written:

"In general, the burden of proof does NOT shift. It gets confusing because the term "burden of proof" has been used loosely to cover two types of burdens. The first is the burden of pursuasion. In a civil case, that is the burden of the plaintiff to pursuade the fact finder (the jury or judge as the case may be) that he has met the elements of his claim by a preponderance of the evidence, i.e. that his version of the facts is more likely than not the correct version. This burden typically does not shift. It is this burden to which the term burden of proof, used properly, should refer.
The burden of production is the burden of going forward with evidence on a particular issue. Thus, the plaintiff initially has the burden of production to bring forth evidence supporting his claim (i.e. to make a prima facie case). If he does that, then the burden of production will shift to the defendant to bring forth evidence to rebut the claim made by the plaintiff."

As far as the attorney's fees provision, I believe there is verbiage in the lease that states the occupant will be held responsible for all attorney's fee, court fees, and interest in the event of failing to pay a debt.

Please don't "believe," KNOW. That means read the lease and quote the attorney fee provision word for word.