In a post a little more than a year ago, Mr. Roper gave a few suggested baseline discovery questions:
Defensive Discovery: Starting Off On the Right Foot!
As you will see, this thread was then hijacked by Texas who presented a much larger list of discovery questions which took the thread in a different direction.
Mr. Roper's suggested questions are really quite interesting and suggest a very thoughtful discovery strategy not found in the various long lists of discovery questions posted by Ann, et al.
One of the core problems in pursuing defensive discovery is that the foreclosure mills routinely engage in serious discovery abuse. The plaintiff will Object and refuse to answer many questions which under the law and the rules they could be compelled to answer if the Judge simply enforced the rules after a motion to compel.
Defendants who simply take some extended list of discovery questions from amongst the many lists floating around (including those posted by Ann) are playing into the plaintiff's hands and making enforcement of discovery difficult.
As Mr. Roper points out in his post, the plaintiff's objection is likely to assert:
You will be told that your question is unduly burdensome, oppressive, costly and that it inquires into matters outside of the scope of permissible discovery.
Look carefully, at Mr. Roper's questions and then compare these with the questions suggested by "Texas".
Mr. Roper's questions are open ended and invite the plaintiff to identify and explain any document destruction, whether any documents are lost or missing and identify and explain whether any documents have been altered, forged, fabricated, etc.
Bear in mind that Interrogatories must be answered under oath.
Think about ALL of the myths about promissory notes or other documents being destroyed. Mr. Roper has expressed and others of us believe that these myths are untrue. If there are no destroyed documents, then the answer to this question is very simple for the plaintiff. The answer should be simply "None". How can a plaintiff assert that this question is unduly burdensome, oppressive or costly to answer?
Similarly, the question as to lost documents has the same simple appeal. If there are no documents that are lost or missing, then again the answer is simply "None" or other words to this effect. This is also a question that would be almost impossible for a court to find to be burdensome or oppressive.
In most cases, this question will be of minimal import, but probably deserves to be asked anyway. In cases where there has been any allegation of a lost note, the question is really important. It asks for an explanation about the loss of the instrument.
The third question though is a real gem. It asks the plaintiff to self identify any documents which have been forged, fabricated, altered, etc. For all of the various assertions by the swindlers and scam artists about "pretender lenders" and fraud, instead of asserting fraud, Mr. Roper's question asks the plaintiff under oath to identify any fraud.
Now this may seem fairly passive, it is really quite brilliant. Many of the assignment forgeries were procured by foreclosure mills from various professional contract forgers and perjurers, to use Mr. Roper's words. Proving that a document is a forgery or fabricated solely for use in the suit can be problematic, particularly when the contract forgers and perjurers are out of state and sometimes no longer in business.
Mr. Roper's question asks the plaintiff to identify under oath the questionable documents.
Once again, if there are no questionable documents, the plaintiff can simply answer "None". The question can hardly be described as burdensome or oppressive UNLESS the plaintiff's fabrication, forgery and document alteration activity is so extensive that it would shoick the conscience of the court.
However, if the plaintiff answers this question under oath and specifies that there are no such documents, if some documents can later be proven to involve fraud, the plaintiff now has an additional problem of perjury.
One might think that the perjury is minor compared to the forgery. But bear a couple of things in mind.
First, very often, the forgery was fabricated and uttered by an entity other than the plaintiff. The perjury will be by the plaintiff.
Second, the plaintiff is often careful not to expressly embrace the forged document. If you look carefully at pleadings, most often the forged assignments are not authenticated by the plaintiff. That is, rarely will the plaintiff put the assignment in by affidavit, proving it up and swearing to it. Instead, they will attach the assignment to some "Notice of Filing of Assignment". They keep the forgery at arms length.
When the assignment is attacked or challenged, they immediately alter their story and claim that the assignment was unnecessary and that they are not relying on the assignment.
When the defendant attacks the assignment, the plaintiff backs away. So instead of attacking the assignment right away, in several posts, Mr. Roper has encouraged defendant to get the plaintiff to wrap its arms around the forged assignment.
This third suggested interrogatory and associated request for production give the plaintiff an initial opportunity to perjure itself in respect of the forged assignment and other documents used in the case.
In other posts, he encourages defendants to present the assignment to the plaintiff and ask that the plaintiff authenticate the assignment and even admit that they are relying upon it.
Of particular importance is keeping the first discovery request very short. The foreclosure mill is going to stonewall. Where does a defendant want to be in asking the corut to compel an answer? Is it better to be standing in front of the Judge with a short list of compelling questions the answers to which a defendant is clearly entitled? Or is the defendant better off with a twenty page list of wingnut questions which can be quickly determined to be unnecessary?
A defendant presenting one of Texas' suggested discovery requests or one of the many documents linked by Ann is likely to find that the court will NEVER grant a motion to compel and might even enter a protective order. The appellate courts will almost uniformly uphold the trial court's discovery decisions and will most certainly do so where the defendant has shot himself in the foot by presenting an unfocused and lengthy discovery request which drifts into wingnut land.