Discovery Request
No.
DEFENDANT’S FIRST DISCOVERY REQUEST
To:
The defendant serves this First Discovery Request, consisting of a request for disclosure, interrogatories, requests for production, and requests for admissions upon you pursuant to Texas Rules of Civil Procedure 194, 196, 197, and 198.
Instructions
You must respond to the request for disclosure as required by Texas Rule of Civil Procedure 194.2 within 30 days of service of this request.
You must answer each interrogatory, separately, fully, in writing, and under oath, within 30 days after service.
You must produce all requested documents, as they are kept in the ordinary course of business or labeled to correspond to the categories in the request, for inspection and copying not more than 30 days after service at the ofices of Lesser & Jordan, 990 S. Sherman Street, Richardson, Texas 75081.
You must admit or deny each request for admission in writing within 30 days after service.
Definitions
The following definitions shall have the following meanings, unless the context requires otherwise:
1. “You” or “Your” refers to
Defendant’s First Discovery Request, page 1 06-02 2. “Account” means the credit card account that you contend the defendant owes in this lawsuit.
3. “Assignors” means the original creditor on the account, and any person who has had an ownership interest in the account other than you. Assignors also includes any successors to an Assignor by merger, corporate acquisition or other transfer of assets that included the account, even if such merger, acquisition or asset transfer did not specifically reference the account.
4. “Goods or Services” means goods, services, personal services, wares, merchandise, labor, or materials. It does not include an advance, loan or payment of money or services incidental to an advance, loan or payment of money such as account handling or collection services.
5. “Securitization” means an arrangement whereby ownership of some or all of the rights in an account is transferred to a special purpose vehicle, trust, or other entity pursuant to an arrangement in which securities are issued based upon the value of the accounts.
6. “Document” means all written, typed or printed matter and all magnetic, electronic, or other records or documentation of any type or kind. This definition is intended to encompass any type of thing subject to production under the Texas Rules of Civil Procedure. Without limitation, “document” includes: letters, correspondence, telegrams, memoranda, notes, records, minutes, contracts, agreements, records or notations of telephone or personal conversations, conferences, or interofice communications, microfilm, bulletins, circulars, pamphlets, facsimiles, invoices, tape recordings, photographs, video tapes, films and other graphical matter, as well as electronic mail messages, web pages, computer files, databases or other information stored in or accessible from a computer system, personal computer, or mobile device. The term further includes drafts and copies not identical to the originals, however produced or reproduced, and all versions of a document if the document has changed in content or appearance over time.
7. “Possession, custody or control” of an item means that the person or his oficer, director, agent, employee, representative, attorney, or other person acting on the person’s behalf either has physical possession of the item or has a right to possession or access that is equal to or superior to the person who has physical possession of the item.
8. “File” means any collection or group of documents maintained, held, stored, or used together, including without limitation, all collections of documents indexed, maintained, held, or stored in folders, notebooks, or other devices for accessing, storing, separating or organizing documents.
Defendant’s First Discovery Request, page 2 9. “Person” means any natural person, corporation, firm, association, partnership, joint venture, proprietorship, governmental body, or any other organization, business, or legal entity, and all predecessors and successors in interest.
10. “Relating to or relates to” means, without limitation, embodying, mentioning, or concerning, directly or indirectly, the subject matter identified in the request.
11. “Concerning” means, in whole or in part, directly or indirectly, referring to, relating to, connected with, commenting on, responding to, showing, describing, analyzing, reflecting or constituting.
12. “Communication” includes any oral, written, electronic, or other communication.
13. “Date” means the exact date, month and year, if ascertainable, or if not, the best possible approximation.
14. “Mobile device” means cellular telephone, satellite telephone, pager, personal digital assistant, palm top, handheld, or laptop computer, electronic rolodex or other similar device that can be used to access, store or retrieve information.
15. “Identify”, when referring to a person, means you must state the person’s:
a. Full Name;
b. Present or last known residential address and telephone number; and
c. Present or last known work address and telephone number. Provided, that it is not necessary to state a person’s address or telephone information more than once as long as subsequent identifications of the person are suficient to associate the person with the previously supplied address and telephone information.
16. “Identify”, when referring to a document, means you must either produce the document and refer to it by means of its identifying number in a sequential numbering system or other unique identifier or state the following:
a. The nature (e.g. letter, handwritten note) of the document.
b. The title or heading that appears on the document
Defendant’s First Discovery Request, page 3 c. The date of the document
d. The identity of the author and/or signer of the document.
e. The identity of the recipient of the document.
f. The present location of the document and the identity of the person or persons who have custody of the document.
Request for Disclosure
The defendant hereby requests that you disclose the information and material described in Rule 194.2 within 30 days of service of this request.
Interrogatories and Requests for Production
Defendant requests that you respond to the following interrogatories and requests for production. The requests are organized by subject matter.
The headings are intended for convenience. They do not modify the meaning of any request.
Trial Witnesses
Interrogatory 1. Identify each person you expect to call to testify at trial, excluding any rebuttal or impeachment witnesses, the necessity of whose testimony cannot be reasonably anticipated before trial. Answer:
Communications with Defendant
Interrogatory No. 2. Describe each communication between you, your attorneys, or one of your Assignors and the defendant regarding the account. Include in your description the identity of the parties to the communication, the date of the communication, and the substance of the communication. Answer:
Defendant’s First Discovery Request, page 4 Request for Production No. 1. Please produce all communications between you, your attorneys, or one of your Assignors and the defendant regarding the account.
Request for Production No. 2. Please produce all notes of communications between you, your attorneys, or one of your Assignors and the defendant regarding the account.
Request for Production No. 3. Please produce all recordings of communications between you, your attorneys, or one of your Assignors and the defendant regarding the account.
You or Your Assignor’s Sales of Goods or Services to Defendant
Interrogatory No. 3. If you contend the defendant is liable to you on a sworn account, open account, account stated, or quantum meruit theory, describe each transaction in which you or one of your Assignors provided Goods or Services to the defendant. Include in your description the date of the transaction, an identification of the Goods or Services provided, and the agreed upon price of the Goods or Services. If you cannot provide the agreed upon price of the Goods or Services, provide the usual, customary and reasonable price of the Goods or Services instead. Answer:
Request for Production No. 4. If you contend the defendant is liable to you on an open account, sworn account, account stated, or quantum meruit theory, please produce all documents, such as orders, invoices, receipts, or statements, evidencing each transaction in which you or one of your Assignors provided Goods or Services to the defendant.
Acknowledgement of Amount Due.
Interrogatory No. 4. If you contend the defendant acknowledged any amount alleged to be due on the account, describe the manner in which the defendant made such acknowledgement. Include in your description the date of the acknowledgement, the amount acknowledged to be due, and the manner in which the acknowledgement was made. Answer:
Request for Production No. 5. If you contend the defendant acknowledged any amount alleged to be due on the account, please produce all documents
Defendant’s First Discovery Request, page 5 evidencing that acknowledgment or setting forth the date of the acknowledgement or the amount acknowledged.
Agreements Relating to the Account.
Interrogatory No. 5. If you or one of your Assignors entered into an agreement with the Defendant regarding the account at issue in this lawsuit, state the date of the agreement, identify the parties to the agreement, and set forth the terms of the agreement. Answer:
Request for Production No. 6. Please produce the account application.
Request for Production No. 7. Please produce the initial account agreement.
Request for Production No. 8. Please produce every amendment to the account agreement.
Request for Production No. 9. Please produce every notice of a change in any term of the account, including but not limited to a change in the rate of interest or amount of any fee applicable to the account
Request for Production No. 10. Please produce every schedule of interest rates or fees applicable to the account.
Request for Production No. 11. Please produce every document that accompanied a credit card delivered to the defendant or another signatory or user of the account.
Request for Production No. 12. Please produce every settlement agreement, payment plan or other similar agreement between the defendant or another signatory or user of the account and you, your attorneys, your Assignors or any debt collector handling the account after the account went into default.
Offer and Acceptance
Interrogatory No. 6. For each agreement you contend was ofered to and accepted by the defendant, including but not limited to the original account agreement, any amendment to the agreement, any notice of a change in any term of the agreement, or any schedule of interest rates or fees applicable to the account, explain how the agreement was ofered to and accepted by the defendant. Answer:
Defendant’s First Discovery Request, page 6 Request for Production No. 13. For each agreement, amendment to an agreement, or notice of change to the terms of the account you contend was ofered to and accepted by the defendant, please produce every document that evidences such ofer or acceptance.
Delivery of Account Documents
Interrogatory No. 7. Explain how each document containing the terms of any agreement for the account or reflecting any amount due on the account was delivered to the defendant, including but not limited to, the original account agreement, any amendment to the agreement, any notice of a change in a term of the agreement, any schedule of interest rates or fees applicable to the account, any credit card issued in connection with the account, and any statement of payments, charges, fees or interest for the account. Include in your explanation the date the document was delivered and a description of the manner in which it was delivered, including, if the document was delivered by the Postal Service or other courier, the location to which it was addressed and whether the document was returned undelivered. Answer:
Request for Production No. 14. For each document listed below that was delivered to the defendant, please produce all documents indicating the date the document was delivered and the manner in which it was delivered, including, if the document was delivered by the Postal Service or other courier, the location to which it was addressed and whether the document was returned undelivered: a. The original account agreement for the account. b. Any amendment to the agreement for the account. c. Any notice of a change in any term of the account, including but not limited to a change in the rate of interest or amount of any fee applicable to the account. d. Any schedule of interest rates or fees applicable to the account. e. Any credit card issued in connection with the account. f. Any statement of payments, charges, fees or interest for the account.
Ownership of the Account
Interrogatory No. 8. For each instance in which ownership of any rights in this account was assigned, starting with the original assignment by the originator of the account, describe the assignment. In your description of the assignment, include the date of the assignment, identification of the parties to the assignment agreement, and a summary of the terms of the
Defendant’s First Discovery Request, page 7 assignment agreement. Answer:
Interrogatory No. 9. For each instance in which ownership of any rights in this account was assigned, starting with the original assignment by the originator of the account, state the consideration supporting the assignment agreement. Answer:
Interrogatory No. 10. If ownership of this account or of any rights in this account was ever assigned in connection with a Securitization arrangement, describe the assignment by stating the date the assignment occurred and identifying the parties to the assignment. Answer:
Request for Production No. 15. Please produce a complete copy of the agreements that constitute the chain of title for the account starting with the agreement between the originator of the account and its assignee and including each agreement between an assignee of the account and another assignee of the account and/or you. This is a request for the entire agreement, not just a bill of sale or exhibit to an agreement, and includes master agreements whose terms relate in any way to or are incorporated by an agreement or bill of sale transferring rights to the account. In order to protect the privacy of other debtors whose accounts may be included in such agreements, you may redact or otherwise omit information identifying any debtor other than the defendant.
Request for Production No. 16. Please produce all documents containing any warranties or representations made by the originator or any Assignor of the account to you or another Assignor of the account.
Request for Production No. 17. Please produce all documents indicating the consideration you paid to obtain your rights in the account.
Request for Production No. 18. Please produce all documents indicating or describing the scope or extent of the rights you own in the account.
Defendant’s First Discovery Request, page 8 Request for Production No. 19. Please produce all documents indicating or describing the scope or extent of the rights that anyone other than you owns in the account.
Request for Production No. 20. Please produce all documents indicating or describing any obligation by you to pay money collected on the account to another entity, other than a contingency fee agreement with the attorney representing you in this lawsuit.
Request for Production No. 21. Please produce a complete copy of any agreement assigning ownership of this account or any rights in this account in connection with a Securitization transaction, including but not limited to any receivables purchasing agreements, receivables contribution or sale agreements, pooling agreements, servicing agreements, trust agreements, delegation of servicing agreements or other similar agreements to or from a trust, pool, or other similar entity, as well as any amendments, supplements and exhibits to such agreements. In order to protect the privacy of other debtors whose accounts may be included in such agreements, you may redact or otherwise omit information identifying any debtor other than the defendant.
Relevance and Authenticity of Generic Account Documents.
Interrogatory No. 11. For each document you have produced that you contend applies to the account and that does not contain the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature, explain how you know the document applies to the account. Answer:
Interrogatory No. 12. For each document you have produced that you contend applies to the account that does not contain the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature, and that was created by someone other than you, identify the source of the document by stating the date you obtained the document and identifying the person from whom you obtained the document. Answer:
Defendant’s First Discovery Request, page 9 Request for Production No. 22. For each document you have produced that you contend applies to the account and that does not contain some piece of the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature, please produce every document containing information from which it may be determined whether the document applies to the account.
Interest
Interrogatory No. 13. Identify each interest rate you contend was applicable to this account by stating the interest rate, the time period during which it applied to this account, and the category of transactions, such as purchases, cash advances, special ofers or other classes of transactions to which it applied and explain why the rate was applicable to the account as you contend. Answer:
Request for Production No. 23. For each interest rate you contend was applicable to this account, please produce every document containing information from which it may be determined whether the interest rate applied to the account.
Account Transactions
Interrogatory No. 14. For every account transaction, including but not limited to purchases, cash advances, fees, interest, payments, credits, and adjustments, from the inception of the account to the present date, state the date of the transaction, the amount of the transaction, and the description of the transaction that appeared on the account statement. Answer:
Request for Production No. 24. For every account transaction, including but not limited to purchases, cash advances, fees, interest, payments, credits, and adjustments, from the inception of the account to the present date, please produce documents evidencing the date of the transaction, the amount of the transaction, and the description of the transaction that appeared on the account statement.
Request for Production No. 25. Please produce every statement of payments, charges, fees or interest for the account that was delivered to the Defendant.
Defendant’s First Discovery Request, page 10 Disputes
Interrogatory No. 15. Describe any dispute relating to the account made by the defendant or any other person allegedly obligated on the account at any time since the inception of the account. Include in your description the date the dispute was received, a summary of the dispute, and a summary of the outcome of the dispute. Answer:
Request for Production No. 26. Please produce all documents relating to any dispute relating to the account made by the defendant or any other person allegedly obligated on the account at any time since the inception of the account. Include in your description the date the dispute was received, a summary of the dispute, and a summary of the outcome of the dispute.
Attorneys Fees
Interrogatory No. 16. For each task performed by your attorney or a non- attorney assisting your attorney in connection with the prosecution of this case for which you are seeking compensation, describe the task, state the date the task was performed, state the time it took to perform the task, and state the hourly rate that you intend to seek for the task. Answer:
Request for Production No. 27. If you are seeking compensation for attorney’s fees in this case, please produce records of each task performed by your attorney or a non-attorney assisting your attorney in connection with the prosecution of this case, other than tasks for which you are not seeking compensation.
Request for Production No. 28. Please produce all bills received from your attorney for work performed in this case.
Request for Production No. 29. Please produce all records of costs or expenses actually incurred in connection with this case.
Request for Production No. 30. Please produce your fee agreement with your attorney.
Defendant’s First Discovery Request, page 11 Limitations
Interrogatory No. 17. State the date on which the defendant last went into default on the account. Answer:
Interrogatory No. 18. State the date on which the defendant last made a charge to the account. Answer:
Interrogatory No. 19. State the date on which the defendant last made a payment to the account. Answer:
Interrogatory No. 20. If you contend the statute of limitations applicable to any claim in this action was tolled for any period of time prior to the filing of this action, explain the basis for your contention. Answer:
Request for Production No. 31. Please produce all documents evidencing the date the defendant last went into default on the account.
Request for Production No. 32. Please produce all documents evidencing the date the defendant last made a charge or a payment on the account.
Request for Production No. 33. If you contend the limitations period applicable to this action was tolled for any period of time prior to the filing of this action, please produce all documents evidencing the beginning and ending dates of the tolling period.
Money or Property Obtained by Fraud
Interrogatory No. 21. If you contend that the defendant obtained money or other property from you or any of your Assignors by means of fraud, duress, or other unjust means, state the amount obtained, the date it was obtained, and explain why you contend it was obtained by fraud or duress. Answer:
Defendant’s First Discovery Request, page 12 State Law Applicable to the Account
Interrogatory No. 22. If you contend that the law of any state other than Texas governs the substantive claims you have made in this lawsuit, identify that state. Answer:
Unavailable Documents
Interrogatory No. 23. If any document you were asked to identify in any interrogatory or to produce in any request for production propounded in this case is not in your possession, custody or control, identify each person who has possession, custody or control of the document. Answer:
Interrogatory No. 24. If any document you were asked to identify in an interrogatory or to produce in any request for production propounded in this case is lost, destroyed or otherwise unavailable, explain what happened to the document. Include in your explanation the identity of the person who last had possession, custody or control of the document and the date the document was lost, destroyed or otherwise became unavailable. Answer:
Demands for Payment
Request for Production No. 34. Please produce all demands for payment of the account made by you, your attorneys or one of your Assignors.
Source and Authenticity of Account Documents
Request for Production No. 35. Please produce each request you made to the credit card issuer or an Assignor for documents or other information requested in discovery in this case, each response to such request, and all correspondence with the credit card issuer or Assignor discussing the request or the response.
Request for Production No. 36. Please produce any manuals, instructions, guidelines, or other communications you have received from the credit card
Defendant’s First Discovery Request, page 13 issuer or an Assignor that contain procedures for requesting documents or other information about the account.
Request for Production No. 37. Please produce any manuals, instructions, guidelines, or other communications you have received from the credit card issuer or an Assignor that explains that person’s retention policies for documents or other information about the account.
Identified Documents
Request for Production No. 38. If you identified any document in response to one of the foregoing interrogatories, please produce that document.
Trial Exhibits
Request for Production No. 39. Please produce all documents or other tangible items you intend to introduce at the trial of this case.
Authority to Collect Debts and to Sue
Request for Production No. 40. If you have a third party debt collector surety bond, as may be required by Tex. Fin. Code § 392.101, please produce a copy of the bond.
Request for Production No. 41. If you are a domestic entity, as that term is defined in Tex. Bus. Organizations Code § 1.102(18), please produce a copy of your certificate of formation as filed with the Texas Secretary of State.
Request for Production No. 42. If you are a foreign entity, as that term is defined in Tex. Bus. Organizations Code § 1.102(28), please produce a copy of your registration application as filed with the Texas Secretary of State.
Requests for Admissions
1. Admit that you did not provide any Goods or Services to the defendant.
2. Admit that the original card issuer did not provide any Goods or Services to the defendant.
3. Admit that none of your Assignors provided any Goods or Services to the defendant.
4. Admit that the terms of the account are governed by an express contract.
5. Admit that the interest you are seeking in this lawsuit is authorized by an express contract.
Defendant’s First Discovery Request, page 14 6. Admit that the full amount of the damages you seek in this lawsuit is authorized by an express contract.
7. Admit that the Defendant has never acknowledged that any amount is due on the account.
8. Admit that the Defendant has never agreed that any amount is due on the account.
9. Admit that you do not own the account.
10. Admit that you do not have standing to sue on the account.
11. Admit that you do not have capacity to sue on the account.
12. Admit that the claims asserted in the lawsuit are barred by the statute of limitations.
13. Admit that the defendant last went into default on the account more than 4 years prior to the date you filed this lawsuit.
14. Admit that the defendant last made a charge to the account more than 4 years prior to the date you filed this lawsuit.
15. Admit that the defendant last made a payment to the account more than 4 years prior to the date you filed this lawsuit.
16. Admit that the defendant last made a charge to the account more than 2 years prior to the date you filed this lawsuit.
17. Admit that the defendant last made a payment to the account more than 2 years prior to the date you filed this lawsuit.
18. Admit that you have not made demand for payment on the defendant.
19. Admit that the defendant did not receive money or other property from you by means of fraud, duress or by any other unjust means.
20. Admit that the defendant did not receive money or other property from the original card issuer by means of fraud, duress or by any other unjust means.
21. Admit that the defendant did not receive money or other property from any Assignor by means of fraud, duress or by any other unjust means.
22. Admit that Texas law governs the substantive claims you have asserted in this case.
Defendant’s First Discovery Request, page 15 Respectfully Submitted,
Lesser & Jordan 990 S. Sherman Street Richardson, Texas 75081 Dallas, Texas 75201 (214) 855-9355 (phone) (214) 855-9389 (fax)
Attorneys for Defendant
Certificate of Service
On September 8, 2018, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:
By Certified U.S. Mail, Return Receipt Requested
By U.S. Mail
By Telecopier Transmission Before 5:00 P.M.
By Telecopier Transmission After 5:00 P.M.
By Hand Delivery
Defendant’s First Discovery Request, page 16 Defendant’s First Discovery Request, page 17