You just received word that your nonpaying client hired counsel and is defending the case. They served an answer and discovery demands. Discovery? In debt collection cases? What should you expect?
Discovery is part of the litigation process even in NY debt collection cases. Most importantly, understanding what to expect and preparing in advance will lessen the burden of discovery demands.
Why Discovery in a NY Debt Collection Case?
Discovery is a process that allows you to expose bogus defenses, counterclaims and for your adversary to try to flush out your case.
They will request that you produce documentation to support your claim, specifically the claims set forth in your summons and complaint. By requiring you to produce information to support your debt collection case, your adversary can “see your cards.” If you’re bluffing, meaning you lack the necessary documentation to support your case, your adversary can request it be dismissed.
What Is Discoverable?
Your adversary can request to see almost everything related to the case. Discovery can be broad in nature, requesting a lot of information related to the allegations in the summons and complaint and more. But, discovery is not a fishing expedition.
To illustrate, take the example of a client in the elevator industry suing to recover for nonpayment of invoices for work, labor and services provided. Consequently, their nonpaying client may request a copy of the underlying documents establishing the rights of the parties: proposals, quotes, contracts, change orders, written notes, work tickets, request for services, proof of completion of work, sign-offs, testing, permits, billing records, and more.
How Can You Prepare in Advance?
Maintain your file related to any engagement, job, or transaction as if you are telling a story. That’s exactly what you’d have to do. Testimony to support your case commences with the beginning of the relationship. Moreover, so will discovery. You will have to prove:
- There was an offer — an offer to perform the services — that the customer accepted.
- You performed the services for an agreed amount.
- The customer breached the contract by failing to pay.
- You made demands for payment.
- The client did not honor your demands.
Your documents, if organized in advance, will support all these required elements – the elements of your NY debt collection case.
You May Be Required to Testify Under Oath
Discovery may include a request for testimony before a court reporter. Testimony is under oath and usually follows the production of all the documents. Anticipate a requirement to testify about the supporting documents. Be prepared to take the adversary’s lawyer and interested parties through the documents proving that, if the case should go to trial, you will be successful. The documents, if held in the ordinary course of business, will be admissible. Moreover, you will be able to testify even if you did not have firsthand knowledge of the transaction, for example, an employee of yours did.
Is the Court Involved in the Discovery Phase?
Yes, there are time limitations for discovery demands and responses set by local statutes and laws. The courts reinforce the time frame and requested documents so that the production of documents and required testimony does not become overly burdensome and overwhelming.
What Happens If You Do Not Respond to the Discovery Demands?
Most importantly, failing to produce the requested information or failing to appear for a deposition may lead to dire results. Probably, the result is a motion practice by your adversary. Since you failed to produce them during discovery, the court may disallow at trial the introduction of your documentation. As a result, you may be unable to support and win your case. The defendant may even ask that the court dismiss your case.
Is There Any Way to Circumvent Discovery?
Yes, if you have documentation that can support and win your case. Then your NY debt collection lawyer can prepare a motion for summary judgment. You will basically prove your case by way of an affidavit with supporting documentation (ironically the same or similar documents to those requested by your adversary during discovery). These documents will prove to the court that there is no dispute in the facts of the case.
How Long Does the Discovery Phase Last?
Aside from waiting for the court to assign dates to move the case forward, discovery is the longest part of the case. It is the meatiest part, aside from a possible trial, and requires the most involvement of time from the client.
No matter what your debt collection circumstances are, a New York debt collection lawyer provides the answers and assistance that will help you get the money you and your company worked for. Feel free to check in with us to explore your rights. Call us at (212) 686-0100 or fill out our contact form.
