Defendant makes defamatory statement about the plaintiff in answer to discovery

[Thelitigator]

In responding to a request for inspection of a document, the defendant makes an objection based upon a false and defamatory statement about the plaintiff. My concern is that this defamatory statement will prejudice the judge even though there's no basis for these statements. What can be done to prevent this from being shown to the court if a motion to compel is issued to the defendant for producing the document for inspection?

Also:
The defendant specifically states that she has a passport that proves she was out of the country years ago as evidence that she was never served with a lawsuit during an adversary proceeding in bankruptcy court in the answer to the complaint. However, when asked for inspection of the passport during discovery, the defendant now states that it is missing and is unable to locate it. Would filing a motion for sanctions for spoliation be appropriate? Also, how likely would the court grant striking the defendant's answer to the complaint? How severe would sanctions be generally?

 

[Just Blue]

In responding to a request for inspection of a document, the defendant makes an objection based upon a false and defamatory statement about the plaintiff. My concern is that this defamatory statement will prejudice the judge even though there's no basis for these statements. What can be done to prevent this from being shown to the court if a motion to compel is issued to the defendant for producing the document for inspection?

What state? Also please delete your other thread and keep all questions to this thread. Thanks...

 

[Thelitigator]

What state? Also please delete your other thread and keep all questions to this thread. Thanks...

California.

 

[adjusterjack]

It seems clear from your questions that you are litigating without being represented by a lawyer and are clueless as to how things work.

My concern is that this defamatory statement will prejudice the judge even though there's no basis for these statements.

Your concern is unfounded. Judges hear this stuff all day every day. If it's irrelevant it gets ignored.

What can be done to prevent this from being shown to the court

Nothing. The defendant can show anything and everything to the court and the court will decide what to do with it. If it's something unfounded you get to rebut it.

Would filing a motion for sanctions for spoliation be appropriate?

Seriously? No it wouldn't. You have a process server's sworn affidavit that he served her (don't you). She has no evidence that she wasn't other than her sayso. Your affidavit trumps her sayso.

Also, how likely would the court grant striking the defendant's answer to the complaint?

Zero likely. Things don't get stricken just because you don't like them.

How severe would sanctions be generally?

Zero.

I presume that you are trying to collect a debt that the debtor is listing for discharge. All the judge wants to know is whether you can provide valid grounds for denying the discharge of the debt. Can you? If so, what are they?

The rest of your discussion would be best not addressed with the court.

 

[Thelitigator]

Thanks Adjusterjack. The grounds for nondischarge are that the defendant lied about multiple sources of funds that never existed to repay the plaintiff and/or did not have the intention of paying back loans made to the plaintiff. The defendant has gone so far as to claim that the proof of service originally filed was a perjury on the court by the plaintiff. That's how far this lie has one and why I thought spoliation may be an issue here. The defendant also commits perjury by claiming contracts were never signed even though they were. The verification of the answers was also submitted in a barely legible format with most the page darkened and obscures the signature. My belief is that this is done in order to prevent hand writing analysis of the verification with the contracts that are claimed not to be signed.

 

[Taxing Matters]

What can be done to prevent this from being shown to the court if a motion to compel is issued to the defendant for producing the document for inspection?

You haven't given us any indication of what you sought in discovery and what the actual objection was. If the objection might be well founded then you may not want to seek an order to compel. In any event, the opposing party made a specific objection, and for the court to rule on the merits of your motion the judge is going to have hear the objection the opposing party made. So no, you can't keep the judge from hearing it. But it's also unlikely to taint the judge's perception of you. Judges hear all kinds of unfounded accusations by parties in civil proceedings, especially when the parties are pro se.

Would filing a motion for sanctions for spoliation be appropriate?

A motion for spoliation would be appropriate if you can make the case that the other party intentionally destroyed that passport after the legal proceedings began in which the passport was relevant. Do you have evidence to support that?

Also, how likely would the court grant striking the defendant's answer to the complaint? How severe would sanctions be generally?

Sanctions for what, specifically? The court won't strike the entire answer just over the missing passport, if that is what you are asking. The sanctions would be tailored to fit the violation. If spoliation was proven, the court might order, for example, that the defendant cannot argue that she was out of the country at the time(s) in question at trial.

 

[Taxing Matters]

Thanks Adjusterjack. The grounds for nondischarge are that the defendant lied about multiple sources of funds that never existed to repay the plaintiff and/or did not have the intention of paying back loans made to the plaintiff.

So is this a proceeding in federal bankruptcy court? If so, I would strongly recommend you have a lawyer representing you in this. The federal rules of civil procedure and rules of bankruptcy court can get complex, and the courts do not cut much slack to pro se parties.

 

[Thelitigator]

"A motion for spoliation would be appropriate if you can make the case that the other party intentionally destroyed that passport after the legal proceedings began in which the passport was relevant. Do you have evidence to support that?"


Not at this time. However, it was specifically mentioned in the answer to the complaint as evidence and now it's missing. It's my understanding that spoliation does not need to be intentional. The legal proceeding had already started so the preservation of evidence duty had been established.

 

[Taxing Matters]

Not at this time. However, it was specifically mentioned in the answer to the complaint as evidence and now it's missing. It's my understanding that spoliation does not need to be intentional. The legal proceeding had already started so the preservation of evidence duty had been established.

What is required for a court to impose sanctions for spoliation depends on the particular court, e.g. federal district court, California superior court, etc., and you've not expressly stated in what court this is being litigated. It also makes a difference whether the particular evidence at issue is something that is helpful to the defendant (as it appears to be here) rather than helpful to you. Obviously, if something that would only benefit the defendant goes missing, there is not much if any harm to you. In that circumstance, the mostly likely thing I think most courts would do should you seek a motion to compel production of the passport and the defendant says it is gone is enter an order prohibiting the defendant from later producing that passport at trial. Again, the remedies will be tailored to suit the violation. You're not going to get the entire answer tossed just on the missing passport. That missing passport is not going to prevent you from making your case. It simply means the defendant lacks a piece of evidence to support her claim that she was out of the country. That's only helpful to you.

 

[quincy]

In responding to a request for inspection of a document, the defendant makes an objection based upon a false and defamatory statement about the plaintiff. My concern is that this defamatory statement will prejudice the judge even though there's no basis for these statements. What can be done to prevent this from being shown to the court if a motion to compel is issued to the defendant for producing the document for inspection?

Also:
The defendant specifically states that she has a passport that proves she was out of the country years ago as evidence that she was never served with a lawsuit during an adversary proceeding in bankruptcy court in the answer to the complaint. However, when asked for inspection of the passport during discovery, the defendant now states that it is missing and is unable to locate it. Would filing a motion for sanctions for spoliation be appropriate? Also, how likely would the court grant striking the defendant's answer to the complaint? How severe would sanctions be generally?

This statement would be privileged and cannot form the basis for a defamation claim.

 

[adjusterjack]

The grounds for nondischarge are that the defendant lied about multiple sources of funds that never existed to repay the plaintiff and/or did not have the intention of paying back loans made to the plaintiff.

The court will want "evidence" not just conjecture or belief.

The defendant also commits perjury by claiming contracts were never signed even though they were.

And you have those contracts with her signature? Might not be enough. Many debts with written contracts get discharged.

The verification of the answers was also submitted in a barely legible format with most the page darkened and obscures the signature. My belief is that this is done in order to prevent hand writing analysis of the verification with the contracts that are claimed not to be signed.

I don't see where that matters. It would be up to her to prove a forgery, not up to you to authenticate. Besides, might not make a difference because contractual debts get discharged all the time.

the defendant lied about multiple sources of funds

Then why would you lend her money if she has multiple sources of funds?

Was this a girlfriend at the time?

 

[Thelitigator]

The court will want "evidence" not just conjecture or belief.



And you have those contracts with her signature? Might not be enough. Many debts with written contracts get discharged.
yes. i have them.



I don't see where that matters. It would be up to her to prove a forgery, not up to you to authenticate. Besides, might not make a difference because contractual debts get discharged all the time.



Then why would you lend her money if she has multiple sources of funds?
These were sources of funds that she did not have immediate access to or she claimed was going to be coming at some later time in the future.

Was this a girlfriend at the time?

I have the contracts in my possession. She claimed money was going to arrive at a later time from these multiple sources that never did or she just didn't have the intention of paying me back.
No. she was a close friend.

I have archived messages between her and I discussing loan arrangements and the false sources of funds that were used to induce me to make the loans at the time. Also, every canceled check says "loan" in the memos.

 

[Thelitigator]

I was under the impression that every document and message needs to be authenticated for trial. Is this not the case? I have a lot of emails and archived messages that are relevant to proving the fraud in this case.

 

[Taxing Matters]

I was under the impression that every document and message needs to be authenticated for trial. Is this not the case?

It is the case that you need to lay the foundation and authenticate each item you wish to admit into evidence.

 

[LdiJ]

Thanks Adjusterjack. The grounds for nondischarge are that the defendant lied about multiple sources of funds that never existed to repay the plaintiff and/or did not have the intention of paying back loans made to the plaintiff. The defendant has gone so far as to claim that the proof of service originally filed was a perjury on the court by the plaintiff. That's how far this lie has one and why I thought spoliation may be an issue here. The defendant also commits perjury by claiming contracts were never signed even though they were. The verification of the answers was also submitted in a barely legible format with most the page darkened and obscures the signature. My belief is that this is done in order to prevent hand writing analysis of the verification with the contracts that are claimed not to be signed.

I don't think that anything that you have listed here are grounds to stop a debt from being discharged in bankruptcy. I think that you need a consult with a local attorney. If you have no hope of stopping the debt from being discharged, then any steps you want to take would be a waste of your time and energy.