Appendix F
Sample Discovery
F.1 Introduction
This appendix includes sample discovery:
• A sample First Set of Interrogatories, designed for a closedend credit transaction (Appx. F.2);
• A sample Request for Production of Documents, also designed for a closed-end credit transaction (Appx. F.3);
• Sample Interrogatories for a Fair Credit Billing Act case
(Appx. F.4);
• A sample Request for Production of Documents in a Fair
Credit Billing Act case (Appx. F.5);
• A sample First Set of Interrogatories in a Consumer Leasing
Act case (Appx. F.6); and
• A sample First Set of Document Requests in a Consumer
Leasing Act case (Appx. F.7).
All of these materials are intended as samples only, and must be
adapted by a competent professional to meet the requirements of a
particular case and a particular jurisdiction.
In addition, the CD-Rom accompanying this book includes a
number of other sets of discovery material for TIL cases.
Many TIL cases also involve issues under other consumer
protection statutes such as the Real Estate Settlement Procedures
Act (RESPA), the Equal Credit Opportunity Act (ECOA), and the
Fair Credit Reporting Act (FCRA). Discovery requests relevant to
these statutes can be found in other NCLC books.1
F.2 Sample First Set of Interrogatories
This set of interrogatories is a sample, and must be adapted to meet
the facts of a particular case and local procedural rules. It is based
on interrogatories prepared by consumer law practitioners in
several different cases.2 It is designed to be directed to both the
original creditor and an assignee. If only one is sued, the questions
should be edited accordingly. The original creditor is identified as
1 See, e.g., National Consumer Law Center, Credit Discrimination
Appx. H (4th ed. 2005 and Supp.); National Consumer Law
Center, Fair Credit Reporting Appxs. J.3, J.4, J.5 (6th ed. 2006
and Supp.); National Consumer Law Center, Consumer Law
Pleadings, No. 6 § 15.2 (Cumulative CD-Rom and Index Guide)
(RESPA discovery).
2 Attorneys whose discovery materials were used in preparing
this sample include Attorney Diane Thompson of the Land of
Lincoln Legal Assistance Foundation in East St. Louis, Illinois,
and Attorney Irv Ackelsberg of Community Legal Services in
Philadelphia.
‘‘Original Creditor’’ and the assignee as ‘‘Assignee,’’ but those
terms should be replaced by their actual names.
These interrogatories are intended to be adaptable regardless of
whether the transaction involved a loan or a sale and regardless of
whether the creditor took a mortgage. Some of the questions focus
on particular TIL or HOEPA violations that may or may not be at
issue in the particular case. The practitioner should replace these
questions with ones targeted to the specific violations alleged.
In most cases, the practitioner will not be able to use all of the
sample interrogatories. Rule 33(a) of the Federal Rules of Civil
Procedure limits the number of interrogatories to 25 including
subparts. This limitation may be avoided only by leave of the court
or with written stipulation of the parties. Many state courts similarly limit discovery. It is often possible to get the same information
through document production requests or requests to admit, which
are not typically limited.
The practitioner should plan and serve discovery promptly upon
receiving the case. It is often useful to do a first document request
immediately upon receiving the case asking for basic documents
such as the loan file and any and all assignments.
IN THE UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF
v.
)
)
Plaintiff )
)
) Civil Action No.
)
)
Defendant )
)
PLAINTIFF’S FIRST SET OF INTERROGATORIES
INSTRUCTIONS
A. Defendant is hereby required to answer in writing, under oath
within 30 days in accordance with Rule 333 of the Rules of this
court, the interrogatories attached hereto.
B. In answering the interrogatories, furnish all information in
the possession of you, your agents, your employees, your attorneys, and investigators for your attorneys.
C. If you are currently without information necessary to respond
to any Interrogatory or Document Request, such Interrogatory or
3 If the case is filed in Bankruptcy Court, Bankruptcy Rule 7033
should be cited.
1
Appx. F.2
Truth in Lending
Document Request shall be deemed to require a reasonable investigation.
D. If you cannot answer an interrogatory in full after exercising
due diligence to secure the information to do so, state the answer
to the extent possible, specifying your inability to answer the
remainder, setting forth the facts surrounding your investigation,
describing whatever information or knowledge you have concerning the unanswered portion, and identifying who else might have
the information sought.
E. If you withhold any requested information on the basis of
privilege, please so state, and for each such request or document
provide:
(1) The nature of the privilege(s) claimed;
(2) The form in which the information exists and the person(s)
who has knowledge of it;
(3) The general subject matter of the material.
F. When an interrogatory requests data that can be provided as
a computer database or spreadsheet file, Plaintiff requests that the
file be copied to a disk in one of the following formats in
descending order of preference: [Preferred Formats].
G. These Interrogatories are to be considered continuing, and
supplemental answers must be filed by Defendant upon discovering or becoming aware of information rendering prior answers or
any part thereof inaccurate, incomplete or untrue.
DEFINITIONS
A. A request to ‘‘describe’’ any oral statement or communication is a request to state:
1. The name, present address, and telephone number of each
individual making such statement or communication.
2. The name of any principal or employer that such individual
was thereby representing and the position in which such
individual was then employed or engaged by such principal
or employer.
3. The name, present address, and telephone number of the
individual or individuals to whom the oral statement or
communication was made, and the name of any principal or
employer that such individual or individuals were representing at the time of and in connection with such oral statement
or communication, as well as the employment position in
which they were then employed or engaged.
4. The names, present addresses, and telephone numbers of any
other individuals present when such oral statement or communication was made or who heard or acknowledged hearing
the same.
5. The place where such oral statement or communication was
made.
6. A brief description of the contents of such oral statement or
communication.
B. The term ‘‘person’’ shall include a natural person, partnership, corporation, joint venture, association, or other group however organized.
C. Whenever a request is made to ‘‘identify’’ a natural person,
it shall mean to supply all of the following information:
1. His/her full name.
2. His/her employer and position at the time.
3. The name of any person or entity (natural or artificial) whom
she/he claimed to have represented in connection with the
matter to which the interrogatory relates.
2
4. His/her last known address, telephone number, and employer.
5. His/her present employer.
D. A request to ‘‘explain fully’’ any answer, denial or claim is
a request (insofar as may be applicable) to state fully and specifically each fact and/or contention in support of your answer, denial
or claim.
E. The term ‘‘transaction,’’ when used without qualification,
means the transaction [or transactions] consummated by the Plaintiff [date and description].
INTERROGATORIES
GENERAL QUESTIONS AND IDENTIFICATION OF
DOCUMENTS
1. Please identify the person answering each of the instant
interrogatories.
2. Identify all documents which contain information concerning
the instant transaction.
3. Identify each document that was furnished to Plaintiff concerning the instant transaction. For each document, state whether it
was delivered or mailed, the address it was mailed or delivered to,
the manner of delivery if it was not mailed, including how, where,
and when it was delivered to Plaintiff, and whether it was received
by Plaintiff, and identify all persons having personal knowledge of
these matters.
4. Identify what documents are given by Original Creditor or
Assignee routinely to all persons to whom it extends credit or on
whose behalf it arranges credit. State the time and order each
document is given to the purchaser or debtor.
5. As to each any every denial you have made of an allegation
of the Plaintiff’s claim, explain fully and state the facts which
support that denial, and identify all persons having personal knowledge of such facts.
TIL COVERAGE4
6. State the following information for (1) the calendar year
5 and (2) the portion of the calendar year
6 that
preceded the date of consummation of the underlying transaction:
a. The number of persons to whom Original Creditor granted
the right to defer payment of debt, incur debt and defer its
payment, or purchase property or services and defer payment
therefor;
b. The number of such transactions in which Original Creditor
took a security interest in a dwelling;
c. The total number of such transactions covered by HOEPA;
and
d. The number of such transactions covered by HOEPA that
were made through a mortgage broker.
7. Identify all persons having personal knowledge of the information set forth in response to the preceding interrogatory, and all
documents that contain, refer to, or relate to this information.
4 These questions should only be asked if the creditor or assignee
denies TILA coverage.
5 Fill in the blank with the calendar year preceding the plaintiff’s
transaction.
6 Fill in the blank with the calendar year in which the plaintiff’s
transaction occurred.
Sample Discovery
BONA FIDE ERROR7
8. Please describe fully any instruction given to the employees
or agents of Assignee or Original Creditor as to the required
disclosures under the Truth in Lending Act, including the subject
matter of that instruction, by whom it was given, whether it was
mandatory or voluntary, and how many hours each individual
natural person spent under such instruction.
9. Explain fully your procedures adapted to avoid clerical,
calculation, computer malfunction, computer programming, and
printing errors with regard to the requirements of the Federal Truth
In Lending Act. Identify each document which contains information concerning the actual maintenance of those procedures by you
within the ninety-day period immediately preceding the instant
extension of credit, and the persons having knowledge of these
procedures and their maintenance during that period.
PAYMENTS AND BALANCE OWED
10. State the total amount you allege to be owing on the instant
transaction as of the date of the filing of this lawsuit, itemized to
show unpaid principal, accrued finance charges, and other charges,
as applicable.8
11. State the total amount of money that Plaintiff has paid to you
in the instant transaction. Identify each payment individually, state
the date of the payment, and itemize the amounts allocated to
principal, interest, fees, and other charges.9
12. Is Assignee maintaining an escrow account for real estate
taxes and/or insurance for defendant? If so, state the purpose of the
escrow and the amount in escrow, and identify to whom funds are
disbursed from escrow.
CREDIT INSURANCE VIOLATIONS10
13. At the time of the instant transaction, was it your procedure
to require any of customers to purchase credit life, or credit
disability insurance? If so, explain fully, stating the criteria applied
in determining which customers were required to purchase such
insurance, and identifying the persons having personal knowledge
of your procedure.
14. Was the cost of credit life insurance and/or credit disability
insurance separately disclosed in writing to the Plaintiff before the
Plaintiff signed the statement of desire for such insurance contained
in the disclosure statement in the instant transaction? Explain fully,
identifying each person having personal knowledge of these facts.
7 These questions are relevant to whether a TIL violation can be
excused as a bona fide error.
8 This and the next question are relevant to determine the tender
amount if the consumer seeks rescission. They are also relevant
if the creditor has counterclaimed for the balance due.
9 This question is relevant to determination of the tender amount
and the balance due on the obligation. In addition, the amount
the consumer has paid toward finance charges and fees is
relevant to the calculation of enhanced damages in HOEPA
transactions under 15 U.S.C. § 1640(a)(4).
10 The next three interrogatories are relevant if the consumer is
making a claim that credit insurance was not in fact voluntary
so the premium should be included in the finance charge. If the
case involves other TIL violations, the practitioner should replace these questions with ones targeted to the specific violations at issue.
Appx. F.2
15. Was the cost of credit life and/or credit disability insurance
entered in the calculation of the amount financed in the disclosure
statement before the Plaintiff signed the statement of desire for
such insurance? Explain fully, identifying each witness to any such
act.
REFINANCING11
16. If any part of the consideration for the instant transaction
was used to repay a prior extension of credit:
a. State the date and transaction number of each such prior
transaction;
b. Identify each document that relates or refers to each such
prior transaction;
c. State the amount of the finance charge, interest, credit life,
property, or disability insurance premiums, any other insurance premiums, and any other amount, rebated or credited to
Plaintiff upon refinancing of each prior transaction, and the
date of each such rebate;
d. State the payoff amount and itemize the total; and
e. Identify all persons having personal knowledge of the prior
transaction and the calculation of its payoff amount.
IMPROPER TREATMENT OF FEES12
17. List separately all persons to whom any charges, fees, or any
other amounts were paid in connection with this transaction,
including the name, address, and telephone number of the payee,
the amount disbursed to each, the date of disbursement, and the
check number for each disbursement.13
18. State exactly which services were provided for each and
every charge listed on the HUD-1 settlement statement.14
19. Regarding the document preparation fee, list each and every
document prepared and the cost of preparing it, and identify the
person who prepared the document.15
20. Describe your (including your employees’ and related
organizations’) relationship with [settlement service providers,
brokers, home improvement contractors], and list all lending trans-
11 This question is relevant to determine whether the balance on
the current obligation was properly computed, and whether
unrebated finance charges from prior extensions of credit have
been wrongfully included in the amount financed of the current
obligation. See § 3.7.2.2, supra. Identifying prior transactions
also helps uncover flipping, which in some circumstances is a
HOEPA violation. See Ch. 9, supra.
12 These questions are intended to help identify fees that have been
included in the amount financed but should have been part of the
finance charge and whether certain charges should be included
in the points and fees total for HOEPA purposes.
13 This question may help reveal phantom fees that should be
reallocated to the finance charge and that should count toward
points and fees for HOEPA purposes.
14 This question is appropriate for transactions that included a
HUD-1 settlement statement. In other transactions, there may be
fees or charges listed on another document, such as an itemization of the amount financed, to which this question could be
directed. As an alternative to asking about all fees, the question
could specify certain of the charges listed on the settlement
statement.
15 This question is appropriate only in transactions that included a
document preparation fee.
3
Appx. F.2
Truth in Lending
actions in which you and [settlement service providers, brokers,
home improvement contractors] have been involved.16
21. As to the $ charge that is designated ‘‘POC’’ on the
HUD-1 settlement statement, please:
a. Explain the nature of the charge;
b. Explain how the charge was calculated, including the use of
any rate sheets;
c. If this charge is related to an increase in the interest rate for
the transaction, state what the ‘‘par’’ rate for the Plaintiff
would have been absent this charge;
d. State the date, payee, and amount of each payment that
represents any portion of this charge, and identify the check
or other instrument or payment mechanism and the account
it was drawn on.17
22. Did Assignee or Original Creditor receive any portion of any
fee, directly or indirectly, listed on the HUD-1 settlement statement? If yes, identify the fee and the portion received.18
HOEPA DISCLOSURES
23. Describe the date, time, place and method of delivery of
HOEPA disclosures required by Section 32 of Regulation Z.19
HOEPA REPAYMENT ABILITY AND REFINANCING20
24. Did Assignee or Original Creditor consider Plaintiff’s ability
to repay the credit in accordance with the contractual repayment
schedule? If so, explain the factual information and the underwriting criteria that were relied on, identify any documents that pertain
to the determination that Plaintiff did have the ability to repay, and
identify all persons involved in making this determination.
25. How was the decision made which existing obligations of
Plaintiff would be consolidated into the loans made by Original
Creditor? Identify (a) any policies or practices of Assignee or
Original Creditor which relate to such a decision, (b) the persons
most knowledgeable about such policies or practices and (c) the
persons who made this decision with respect to Plaintiff’s transaction, and (d) all documents pertaining to such policies or practices.21
16 This interrogatory may lead to information about hidden fees
kicked back by other parties involved in the transaction. It may
also lead to information about the close relationship between the
defendant and other parties, possibly making the defendant
liable for tort and other state law claims against other parties.
17 This interrogatory is relevant in HOEPA cases to show that a
yield spread premium paid to a broker should be included in the
points and fees calculation for HOEPA purposes. It is relevant
only if the transaction included a yield spread premium. See
§ 9.2.6.3, supra.
18 This question is relevant in HOEPA cases, as it may help
identify charges that should count toward the total of points and
fees.
19 This question is relevant only if the transaction is alleged to be
covered by HOEPA.
20 These interrogatories are relevant to the question whether a loan
was made without regard to the debtor’s repayment ability. A
pattern of such lending in HOEPA transactions is a HOEPA
violation. These questions may also help establish fraud, UDAP,
or other state law claims.
21 This and the next question are relevant only if the transaction
was a refinancing.
4
26. Identify any and all documents pertaining to the practice by
either Assignee or Original Creditor of refinancing the loans of
existing customers.22
27. What, in your view, was the purpose underlying the loans
and how did the loans benefit the Plaintiff?
WITNESS IDENTIFICATION
28. Explain fully the manner in which the credit application in
this case was taken including the identity of the individual applying
for credit, the identity of the employee who took the application,
the manner in which this was done, and the date and time of the
application.23
29. Identify each telephone contact between Plaintiff and you or
your agent with regard to the instant transaction. Identify the
parties to each such telephone conversation, state its date and time
and who placed the call, and describe its substance.
30. Identify the location at which the closing of the underlying
credit transaction took place. Identify all persons present at the
closing, including their function and any statements they made
during the transaction.
31. Identify the loan officers, brokers, underwriters or other
individuals from Original Creditor and from Assignee who were
involved in soliciting Plaintiff or identifying plaintiff as a potential
customer, processing the credit transaction, and approving the
credit transaction, and describe the role each such person played.
32. Identify those individuals who are most knowledgeable
about Assignee’s and Original Creditor’s underwriting procedures
and practices during the period
.
33. Identify those individuals who are most knowledgeable
about the loan business Assignee conducted with Original Creditor.
34. Identify all individuals, in addition to those mentioned
above, that have any knowledge regarding the facts underlying this
transaction or whom you intend to call as a witness, with a
statement concerning the scope of such individual’s knowledge or
expertise as it relates to this action.
ASSIGNMENTS AND PARTIES24
35. List each entity who now has or has ever had any interest in
the underlying loan note, including, but not limited to, any broker,
table-funder, correspondent lender, originator, lender, warehouse
lender, trustee, investor, trustee under a pooling and servicing
agreement, loan pool, servicer, or similar party;25 identify that
party’s name, address, and telephone number; describe that party’s
interest in the transaction; state the date it obtained that interest, the
22 This and the next question are relevant if the transaction is a
HOEPA loan that results from a refinancing. In some circumstances early refinancing of a HOEPA loan is a HOEPA violation if the refinancing is not in the borrower’s interest. See Ch.
9, supra.
23 This question may also be helpful for establishing HOEPA
coverage and potential ECOA claims, which depend on when
the loan application was taken.
24 These questions are relevant to determine who owns the obligation for rescission purposes, to determine who else might be
liable as an assignee for TIL claims, and to flesh out the
possibility of any holder in due course defenses.
25 This question is important since often it is easy to mistake a
servicer for an assignee of the obligation. Servicers are generally not liable for TIL violations or rescission. See Ch. 6, supra.
Sample Discovery
date it relinquished that interest, and the identity of the entity to
which it relinquished that interest; and state the nature and amount
of all consideration it received or disbursed in connection with
obtaining or relinquishing that interest.26
36. If the note underlying this case is owned by an investor other
than Assignee, describe the contractual arrangement for allocating
payments received between Assignee and the investor.
37. Is there any relationship of any sort between Original
Creditor and Assignee, including but not limited to the provision of
financing from Assignee to the Original Creditor? If yes, explain
fully, including a desciption of the relationship, identification of all
documents pertaining to this relationship, and identication of the
person most knowledgeable about the relationship.27
HOEPA ASSIGNEE LIABILITY AND LENDING WITHOUT
REGARD TO REPAYMENT ABILITY28
38. Is Assignee aware of the underwriting guidelines utilized by
Original Creditor? If so, identify any documents that contain or
refer to such guidelines.
39. Describe any and all underwriting, file auditing, or due
diligence conducted by Assignee prior to purchasing mortgages
from Original Creditor or required by Assignee of the Original
Creditor, identify the persons conducting such reviews, and describe any and all such activity regarding the mortgages involved
in this case, including an identification of all documents pertaining
to such review or underwriting, whether pertaining to the specific
transaction or general practices.
40. Did Assignee participate in any way in drafting or selecting
the loan documents utilized by Original Creditor in the processing
or closing of the loan underlying this action? If so, identify the
correspondence or other documentation pertaining to this activity
and identify the persons who have personal knowledge of these
matters.
41. Did Assignee participate in any way in the selection of
settlement services providers (e.g. appraisers, title companies, law
firms) that received fees in Plaintiff’s loans or did Assignee impose
any conditions on Original Creditor’s selection or on the range of
fees allowable? If so, describe such participation or conditions,
identify any documents pertaining to such participation or conditions, and identify the persons who have personal knowledge of
these matters.29
26 This question is particularly relevant if the transaction has been
securitized. It helps identify the proper defendants. If the transaction involved a credit sale rather than a loan, the reference to
the loan note should be replaced with a reference to the installment sales contract.
27 A close relationship between the credit originator and an assignee may help establish that the assignee had the opportunity
to determine that the transaction was covered by HOEPA. This
question and the next questions may also bear on the assignee’s
liability for the originator’s state law torts.
28 These questions may help establish the assignee’s liability for
HOEPA and other violations, by showing that it had the opportunity to determine that the transaction was covered by HOEPA.
They may also help show that the original creditor and assignee
made a practice of lending without regard to repayment ability.
29 This question may also be relevant to determine whether any
closing costs should count toward the points and fees total for
HOEPA purposes.
Appx. F.3
42. Regarding the transfer of the mortgage underlying this
action from Original Creditor to Assignee, state or identify the
following:
a. The date of the transfer;
b. Whether the transfer was part of a larger agreement involving
other mortgages, as well (for example, a Master Agreement
for Sale and Purchase of Mortgages); and
c. All documents pertaining to the transfer or to such larger
agreement.
43. What consideration, if any, was paid by Assignee to Original
Creditor as consideration for the loans underlying this action?
44. When did Assignee begin purchasing mortgages from Original Creditor?
45. State the number of and total dollar amount of loans
purchased by Assignee from Original Creditor.
46. State the number of and total dollar amount of loans in
Assignee’s current portfolio and the percentage and dollar amount
of these loans that were purchased from Original Creditor, and
provide a breakdown for loans purchased in [relevant years]
47. State the number of and total dollar amount of Original
Creditor loans in Assignee’s current portfolio that were refinancings of existing Assignee loans.30
48. Identify by name, address, and telephone number all present
Assignee customers residing in [relevant location], whose loan was
purchased from Original Creditor after Original Creditor refinanced an existing Assignee account.
49. Regarding loans acquired from Original Creditor, provide a
breakdown for loans originated in [relevant years] showing the
loans originated in such years and the loans still remaining in
Assignee’s portfolio.
50. List the delinquency and default rate (breaking down delinquencies into more than 30 days, more than 60 days, more than 90
days and breaking down defaults into whatever categories are used
by Assignee) for Assignee’s home equity loan portfolio for loans
originated in each of the following years: [relevant years].
51. List the delinquency and default rate (breaking down delinquencies into more than 30 days, more than 60 days, more than 90
days and breaking down defaults into whatever categories are used
by Assignee) for loans in Assignee’s loan portfolio that were
originated by Original Creditor for loans originated in each of the
following years: [relevant years].
F.3 Sample First Request for
Production of Documents
This is a sample form for demonstration purposes only, and must
be adopted by a competent professional to meet the individual facts
and local procedural rules. This request is based on discovery
materials prepared by consumer law practitioners in three different
cases.31 It is intended to be adaptable for both loans and credit
sales.
30 This and the next four questions are relevant to determine
whether the defendants have engaged in a pattern or practice of
making HOEPA loans without regard to the consumer’s repayment ability.
31 This document request is based on a set prepared by David A.
Searles, an attorney practicing consumer law in Philadelphia,
and by Bankruptcy Judge Bruce Fox before he joined the bench,
5
Appx. F.3
Truth in Lending
In most cases, a simplified first document request should be
served as soon as practicable in the case. The request could ask for
the loan file, documents that will be introduced into evidence, and
any documents relating to any assignment of the loan or showing
who actually owns the loan. Such a request will help refine claims
and is relevant and unobjectionable.
Plaintiff
v.
Defendant
)
)
)
) Civ. No.
)
)
)
INSTRUCTIONS
You are instructed to produce the originals of the following
documents at [address] within 30 days after service of this request
in accord with Fed. R. Civ. P. 34.
A. Please identify the source of each of the documents you
produce and label them to correspond to the categories in this
request.
B. If there are documents not currently in your possession, but
which you can obtain from [other parties involved in the transaction, e.g. a loan broker, prior holder, or assignee] such additional
documents are included in this request.
C. If your response to any requests herein is that the documents
are not in your possession or custody, describe in detail the
unsuccessful efforts you made to locate the records.
D. If your response to any requests herein is that the documents
are not in your control, identify who has control and the location
of the records, and provide any documents you have that contain
all or part of the information contained in the requested document
or category.
E. If any requested document was, but no longer is in your
possession or subject to your control, or has been misplaced,
destroyed or discarded, or otherwise disposed of, please so state,
and for each such document provide:
(1) Its date;
(2) The identity of the person(s) who prepared the document;
(3) The identity of all persons who participated in preparing the
document, to whom the document was sent or who have
otherwise seen the document;
(4) The length of the document;
(5) The subject matter of the document;
(6) If misplaced, the last time and place it was seen and a
description of efforts made to locate the document;
(7) If disposed of, the date of and reason for disposal, the
manner of disposition (e.g., destroyed, transferred to a third
party), the reason for disposal, the identity of the person(s)
who authorized disposal and the identity of the person who
disposed of the document.
in a case involving dealer-arranged real estate-secured direct
financing of a used car purchase; a set prepared by Attorney
Diane Thompson of the Land of Lincoln Legal Assistance
Foundation in East St. Louis, Illinois, in a mortgage loan case;
and a set prepared by Attorney Irv Ackelsberg of Community
Legal Services in Philadelphia in a mortgage loan case.
6
F. If you are declining to produce any document in whole or in
part because of a claim of privilege, please: (a) identify the subject
matter, the type (e.g., letter, memorandum), the date, and the author
of the privileged communication or information, all persons that
prepared or sent it, and all recipients or addressees; (b) identify
each person to whom the contents of each such communication or
item of information have heretofore been disclosed, orally or in
writing; (c) state what privilege is claimed; and (d) state the basis
upon which the privilege is claimed.
G. When a document exists as a computer database or spreadsheet file, Plaintiff requests that the file be copied to a disk in one
of the following formats in descending order of preference: [Preferred Formats].
H. When a document exists in a computer disk as a word
processing file, Plaintiff requests that the file be copied to a floppy
disk in one of the following formats in descending order of
preference: [Preferred Formats].
I. The Document Requests are to be considered continuing, and
supplemental documents must be submitted by Defendant upon
discovering or becoming aware of additional responsive documents.
J. If any paragraph of this request is believed to be ambiguous
or unduly burdensome, please contact the undersigned and an effort
will be made to remedy the problem.
DEFINITIONS
A. ‘‘Document’’ is used in the broadest possible sense and
means, without limitation, any written, printed, typed, digitized,
photostated, photographic, computerized, recorded, or otherwise
reproduced communication or representation, whether comprised
of letters, words, numbers, pictures, sounds or symbols, or any
combination thereof. It includes the original and any nonidentical
copies thereof, whether different from the originals by reason of
any notation made on such copies or otherwise, and includes every
document that is or has been in the possession, control, or custody
of Defendant or of which Defendant has knowledge, whether
originals or copies. It includes but is not limited to contracts, notes,
memoranda, correspondence, diaries, desk or other calendars, statistics, letters, telegrams, minutes, business records, personal
records, account statements, reports, studies, checks, receipts, bills,
returns, charts, summaries, pamphlets, books, notations of any sort
of conversations, written agreements, bulletins, printed matter,
computer printouts, electronic mail, data compilations from which
information can be obtained, teletypes, telefax, worksheets, logs,
forms, bank statements, books of account, ledgers, or invoices, all
drafts, alterations, modifications, changes and amendments of any
of the foregoing, graphic or oral records or representations of any
kind, including but not limited to tapes, cassettes, discs, recordings,
computer memories, and other information that is recorded electronically, digitally, or by similar means.
B. The term ‘‘person’’ shall include a natural person, partnership, corporation, joint venture, association, or other group however organized.
C. The term ‘‘transaction,’’ when used without qualification,
means the transaction consummated by the Plaintiff [date and
description].
Sample Discovery
REQUESTS TO PRODUCE
IMPORTANT: All questions containing the terms ‘‘document,’’
‘‘person,’’ or ‘‘transaction’’ must be answered in accordance with
the definitions of those terms contained in the attached instructions.
REQUESTS FOR PRODUCTION
1. All contracts, including modifications thereto, to which Plaintiff is a party, including any and all broker agreements.32
2. All documents relating or referring to Plaintiff, or which are
indexed, filed or retrievable under Plaintiff’s name or any number,
symbol, designation or code (such as an account number or Social
Security number) assigned to Plaintiff.
3. All disclosure statements given to Plaintiff and any other
notices of Plaintiff’s rights.
4. All credit applications from Plaintiff or relating or referring to
Plaintiff’s credit application.
5. Your complete file as to this transaction and Plaintiff’s
account, including the outside and inside of the front and back of
your file folder for this credit transaction.
6. All ledger cards or ledger sheets or other documents reflecting
payments, credits, late charges, other charges, and rebates posted to
Plaintiff’s account.33
7. Copies of all payments received from Plaintiff.
8. All correspondence, telephone log sheets, or other internal
memoranda or notes concerning Plaintiff’s account, or relating or
referring to the account.
9. All correspondence, telephone log sheets, or other internal
memoranda or notes concerning or reflecting communications with
.34
10. All documents relating or referring to any fees, commissions
or payments you received in connection with the loan transactions,
including sale of insurance, from anyone other than Plaintiff.35
11. All documents reflecting, or relating or referring to, commissions and/or bonuses paid to any person in connection with this
loan transaction, including sale of insurance.
32 In the alternative, this and the next 5 document requests can be
replaced with a single request such as ‘‘All documents pertaining to the credit transaction underlying this action, including but
not limited to the entire contents of the files and the inside and
outside of the front and back of the file folders for this transaction, all documents signed by defendant, disclosures, applications, correspondence, work sheets, underwriting forms, file
notations and any other document.’’
33 This and the next request will help determine the tender amount
in a TIL rescission case, and the amount of enhanced damages
in a HOEPA case. They are also relevant to a determination of
the balance owing on the debt if the creditor has counterclaimed.
34 This request can be filled in to request correspondence with
settlement service providers, home improvement contractors,
brokers, or others involved in the transaction. These documents
may help show that payments that were ostensibly made to third
parties should actually be included in the finance charge, or in
the points and fees for HOEPA purposes. They may also show
that the creditor had such a close relationship with parties who
acted fraudulently that it should be liable for their fraud.
35 The documents listed in this and the next four requests will help
determine whether any of the components of the amount financed should actually have been included in the finance charge
and whether they should have been included as points and fees
for purposes of HOEPA.
Appx. F.3
12. Copies of both sides of the (i) bills and (ii) checks, wire
transfers or other payment instruments for each disbursement in
relation to the transaction, issued by anyone in connection with this
transaction, including all compensation paid to brokers whether as
part of closing or outside closing.
13. All appraisal requests, appraisals of the property, invoices
for appraisals, review appraisals, broker price opinions, or other
valuations of the property, and proofs of payment for appraisals,
and all documents relating or referring to any such appraisal or
other valuation of the property.
14. Proof of payment to credit reporting services related to
Plaintiff’s closing.
15. If the current obligation resulted from a refinancing of an
earlier obligation, all documents that relate or refer to the earlier
obligation, including but not limited to: (a) the contract; (b) all
disclosure statements; (c) the ledger sheet or other record, showing
all payments, credits, late charges, other charges, and rebates; (d)
documentation of the date, amount, and calculation of any rebates
of finance charges, credit insurance, or other charges; (e) the
mortgage or security agreement, if any; (f) all correspondence; (g)
the calculation of the payoff amount.
16. All documents that show, relate, or refer to the assignment
or negotiation of the note, including any agreements between the
assignor and assignee relating to the assignment of obligations. If
there has been more than one assignment, please produce these
documents for each assignment.36
17. All documents that show, relate, or refer to the assignment
of the mortgage,37 including any agreements between the assignor
and assignee relating to the assignment of obligations. If there has
been more than one assignment, please produce these documents
for each assignment.38
18. All powers of attorney or other documents on which the
servicer or other entity may be relying to act on behalf of the loan
originator, holder, or assignee of the note and/or mortgage and any
documents which may refer or relate to such enabling documents.39
36 This request helps identify potential defendants, since an assignee is liable for rescission and, if the violations are apparent
on the face of the transaction, is also liable for TIL damages. See
Chs. 6, 7, infra. It is also useful for determining the scope of
potential holder in due course defenses. If the document assigned was an installment sales contract rather than a note, the
request should be revised accordingly.
37 The mortgage under most state law should follow the note.
However, sometimes the note and mortgage are assigned separately. While the separate assignment of the mortgage may be a
nullity under state law, it is possible that additional claims,
sources of discovery, or defendants may be identified from the
documents produced in response to this request.
38 This request is relevant only if the transaction included a mortgage.
39 Sometimes, the original lender may execute a power of attorney
to the servicer at the time of the transaction. This document may
permit the servicer to prepare assignments of the mortgage and
endorsements of the note as an attorney-in-fact. These agency
relationships may be important for TILA claims, Fair Debt
Collection Practices Act claims, joint venture claims, or possible
holder in due course defenses by the holder or servicer. For
discussions of the holder-in-due-course doctrine and exceptions
to its reach, see National Consumer Law Center, The Cost of
Credit: Regulation, Preemption, and Industry Abuses § 10.6.1 (3d
ed. 2005 and Supp.); National Consumer Law Center, Unfair and
Deceptive Acts and Practices § 6.7.2 (6th ed. 2004 and Supp.).
7
Appx. F.3
Truth in Lending
19. Each and every document that was transmitted to [the
assignee] by [the assignor] in connection with the negotiation or
assignment of the note or mortgage.40
20. All documents which constitute or reflect communications
between you and public or private agencies that receive consumer
complaints (such as an Attorney General’s office, the Federal Trade
Commission, a Better Business Bureau or newspaper column)
relating to transactions since 1999.41
21. Any administrative complaint or other documents showing,
relating to, or referring to enforcement proceedings instituted
against you or any other holder, assignee, or originator of this
obligation from [date] to [date] regarding TILA.42
22. All agreements, solicitations, correspondence or other documents relating or referring the purchase of loans by [Assignee]
from [Original Creditor or prior assignee], including loan purchase
master agreements, solicitations, correspondence or other documents, whether relating to this loan or other loans.43
23. All documents that concern, refer, or relate to any instructions or policies to [Original Creditor’s or broker’s] agents or
employees concerning its brokering of [type of obligation, e.g.
residential mortgages].
24. All contracts between you and any of the other Defendants
or [settlement service provider] in this action.44
25. All documents that relate or refer to any relationship,
affiliation, or course of conduct between you and any of the other
Defendants or [settlement service provider] in this action.
26. All documents that discuss or refer to your procedures for
ensuring compliance with, and your actual compliance or lack of
compliance with, the requirements of the Truth in Lending Act,
including but not limited to documents that were used to check for
compliance from [date] through [date].45
40 Whether the assignee is liable for TIL damages depends on
whether the violations were apparent on the face of the ‘‘disclosure statement or other documents assigned’’ in a nonmortgage transaction or ‘‘the disclosure statement, any itemization of the amount financed, the note, or any other disclosure of
disbursement’’ in a transaction secured by real property. See Ch.
7, supra. If the transaction involved an installment sales contract
rather than a note, or did not involve a mortgage, the request
should be revised accordingly.
41 This request is relevant to any claim of a bona fide error. It is
also extremely important for establishing pattern and practice
evidence.
42 Certain administrative actions can extend the three-year rescission period. See § 6.6.3.3.6, supra.
43 This and the next two document requests relate to assignee
liability under HOEPA and TILA. They also may help show the
assignee’s liability for state law claims. If the current holder
purchased the obligation from an intermediate assignee, the
request should be revised to reflect that fact.
44 Affiliations among the defendants, or between a defendant and
a settlement service provider, may help establish that certain
closing costs count toward the HOEPA points and fees trigger.
The documents showing contracts and other affiliations among
the defendants that this and the next request seek may also help
establish assignee liability under HOEPA by showing the assignee’s opportunity to determine that the obligation was covered by HOEPA.
45 This and the next request are relevant to any claim by the
creditor that the TIL violation resulted from a bona fide error.
The documents may also help establish assignee liability by
8
27. All manuals, memoranda, instructions, and other documents
setting forth your policies, procedures or practices relating to [loan
origination or purchase] of [type of obligation, e.g. residential
mortgages].46
28. The underwriting guidelines and rate sheets that were in
effect at the time of the loan transaction at issue in this case, and
any written material, including definitions, memoranda, directives
or other documents that explain, illustrate, apply, elucidate or
pertain to those underwriting guidelines, including the rate sheet
that was used to determine the interest rate Plaintiff would pay in
this transaction or the ‘‘par’’ rate.47
29. All appraisal guidelines, appraisal watch lists or appraisal
suspension lists maintained during the relevant period either by the
Assignee or Original Creditor.
30. Any and all documents concerning reviews of [appraiser] in
the case or review of appraisals performed by [appraiser] in the
case, whether in this transaction or another transaction.48
31. All guidelines, manuals, memoranda regarding supervision or
internal monitoring of brokers, brokered loans, or the performance of
individual brokers, including broker watch lists or broker suspension
lists or other similar documents however denominated.49
32. Any and all documents, however denominated, concerning
[broker in the case], whether master contracts, broker monitoring,
broker watch list, correspondence, telephone logs, internal memoranda and the performance of loans originated by the broker.
33. Any and all documents relating to any sampling of the loan
pool containing the instant note or other documents reflecting the
performance of loans grouped with this loan or originated by the
same broker or creditor.
34. Any and all documents pertaining to or relating or referring to
Assignee’s decision to purchase or not purchase HOEPA (Section 32)
loans or to the structuring of loans so as not to trigger Section 32.50
35. If a third-party investor holds any interest in the obligation
underlying this action, or if this obligation has been or is part of a
pool of obligations that have been securitized, all prospectuses,
pooling and servicing agreements or reports concerning that loan
pool, including documents which describe the investment and
those that describe the performance of the loans in such pool, and
all documents relating or referring to same.51
46
47
48
49
50
51
showing what documents the loan originator provided to the
assignee. In a HOEPA case these documents may help show that
the assignee knew, or could have ascertained through due
diligence, that the transaction was covered by HOEPA.
This document may bear on whether the defendant can claim a
bona fide error. This and the next three requests also may help
show whether the originator engaged in a pattern or practice of
lending without regard to the consumer’s repayment ability,
which is a violation if the transaction is covered by HOEPA.
This request is relevant if a yield spread premium was charged
and the consumer is trying to show that it should count as points
and fees for purposes of HOEPA. See § 9.4.2.3, supra. It is also
relevant in HOEPA cases to show whether the defendant made
the loan without regard to the borrower’s repayment ability.
Documents showing that the lender knew the appraiser was
overstating the value can turn an appraisal fee into a finance
charge as well as bolster fraud and consumer fraud or joint
venture claims.
This question and the following are only relevant where there is
a broker involved in the loan.
This request should only be made if the loan is a HOEPA loan.
This and the next request are relevant to HOEPA loans. The
Sample Discovery
36. Your most current annual report.
37. All documents relating or referring to any powers of attorney
on which the servicer or other entity may be relying to act on behalf
of the loan originator, holder, or assignee of the note and/or
mortgage.52
38. All insurance policies that may afford coverage with respect
to the matters complained of, together with all correspondence
accepting or declining coverage or reserving rights with respect
thereto.53
39. All documents setting forth your document destruction and
retention policies, and all documents that relate or refer to same.
40. Any return of certified or registered mail indicating Plaintiff’s receipt of any documents or letters whatsoever.
41. All documents given by Defendant routinely to all persons
to whom it extends credit.
42. All documents you may introduce into evidence in this case.
43. All other documents relating or referring to the transaction
or Plaintiff’s account with you.
44. All documents referred to in the interrogatories and in the
answers thereto and not previously produced.
F.4 Sample Fair Credit Billing Act
Interrogatories54
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SAMUEL N. PLAINTIFF
v.
FLEET CREDIT CARD
SERVICES L.P.
)
)
)
)
)
)
)
)
documents produced may show whether the holder of the
obligation claims that it does not purchase HOEPA loans, and
may also show what ‘‘due diligence’’ it claims to perform on the
loans it purchases.
52 Sometimes, the original lender may execute a power of attorney
to the servicer at the time of the transaction. This document may
permit the servicer to prepare assignments of the mortgage and
endorsements of the note as an attorney-in-fact. This issue may
be worth exploring because the note holder may not have
acquired holder-in-due-course status if the endorsement occurred after either a default on the payments or an assertion of
defenses or both. For discussions of the holder-in-due-course
doctrine and exceptions to its reach, see National Consumer
Law Center, The Cost of Credit: Regulation, Preemption, and
Industry Abuses § 10.6.1 (3d ed. 2005 and Supp.); National
Consumer Law Center, Unfair and Deceptive Acts and Practices
§ 6.7.2 (6th ed. 2004 and Supp.).
53 The current version of Fed. R. Civ. P. 26(a)(D) requires disclosure of any insurance policies as part of the initial disclosures
that parties must make in most types of cases unless otherwise
stipulated or ordered.
54 These interrogatories are based on a set provided by Joanne
Faulkner, a Connecticut attorney who practices consumer law.
They are based on the specific facts of a case and would have
to be adapted by a competent professional for use in other cases.
Appx. F.4
FIRST SET OF INTERROGATORIES
The plaintiff requests defendant to respond to the following
interrogatories under oath. Please see Local Rule 39 for definitions,
except that ‘‘Identify’’ also means provide ‘‘desk’’ name or alias;
period during which employed by defendant; title or position; and
whether that position is a management position.55 These interrogatories shall be deemed continuing so as to require supplementary
answers if you obtain further information between the time answers are served and the time of trial.
1. ‘‘Identify’’ all persons involved in investigating plaintiff’s
claim that charges appearing on his periodic billing statement, from
American Internet Online Internet and CSI Compuserve, had not
been incurred by him.
2. Describe all steps defendant took to investigate the disputed
amounts on plaintiff’s account, including the date(s) thereof, and
identify all persons having personal knowledge of such facts.
3. ‘‘Identify’’ all persons contacted by defendant to investigate
the plaintiff’s claim and the date(s) on which each such person was
contacted.
4. Set forth the information received during defendant’s investigation of plaintiff’s dispute, to the extent not reflected or recorded
in the documents produced.
5. Describe all correspondence, notices, or communications,
whether oral, written, electronic, or by any other means, between
plaintiff and defendant from [date of notice of billing error] to [date
at least two billing cycles later], including the date, the detailed
content, and the identity of each person involved in such communication.
6. Describe all training for Fair Credit Billing Procedures
attended by the persons identified in response to Interrogatory 1,
stating the dates on which each such person attended, and identifying the materials provided to such persons.
7. Set forth in detail the factual basis for defendant’s assertion
that plaintiff did not properly invoke the protection of the Fair
Credit Billing Act, and identify all persons having personal knowledge of such facts.
8. Describe all procedures reasonably adapted to avoid violation
of the Fair Credit Billing Act concerning consumer disputes, as
alleged in your [] defense.
9. Set forth the particular rules, regulations and interpretations
with which defendant acted in conformity, as alleged in your []
defense.
10. Set forth how plaintiff did not mitigate his damages as
alleged in your second defense, and identify all persons having
personal knowledge of such facts.
[Attorney for Plaintiff]
55 This preliminary paragraph should be modified based on
whether there is a local rule that defines terms used in discovery
requests.
9
Appx. F.5
Truth in Lending
F.5 Sample Fair Credit Billing Act
Request for Production of
Documents56
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SAMUEL N. PLAINTIFF
v.
FLEET CREDIT CARD
SERVICES L.P.
)
)
)
)
)
)
)
)
FIRST REQUEST FOR PRODUCTION
The plaintiff requests the defendant to produce the following
documents (defined as including electronic transmissions) at the
office of plaintiff’s attorney within 30 days hereof. Please see the
first set of interrogatories for instructions and definitions. If there
are no such documents, please so state. If there are such documents, please list appended documents responsive to each request.
1. All periodic statements transmitted to plaintiff by or on behalf
of defendant between January 1, 2005 and April 30, 2006.
2. All correspondence, notices, or other documents that defendant received from plaintiff, and all notes or records of any oral
communications from plaintiff, between January 1, 2005 and April
30, 2006.
3. All other documents concerning defendant’s communications
with plaintiff between January 1, 2005 and April 30, 2006.
4. All documents concerning defendant’s communications with
others than plaintiff about the charges from American Internet
Online and CSI Compuserve, between January 1, 2005 and April
30, 2006.
5. All documents received between January 1, 2005 and April
30, 2006. by defendant as a result of which defendant included the
American Internet Online and CSI Compuserve charges on defendant’s periodic statement.
6. All manuals, procedures, training material, and protocols used
by defendant to comply with the Fair Credit Billing Act.
7. All records showing defendant’s investigation or other activity with regard to the American Internet Online and CSI Compuserve charges on plaintiff’s periodic statement.
8. All documents identified in response to the first set of
interrogatories.
9. All documents concerning plaintiff’s alleged debts to American Internet Online and CSI Compuserve and defendant’s efforts to
investigate and collect thereon, whether from plaintiff or any other
responsible person, including internal collection records, audit
records, and correspondence.
10. All judgments, court opinions, complaints, administrative
orders, administrative findings, administrative complaints, and
56 This document request is based on a set provided by Joanne
Faulkner, a Connecticut attorney who practices consumer law. It
is based on the particular facts of a case and must be adapted by
a competent professional for use in other cases.
10
consent orders relating to this defendant and its acts or practices
under the Fair Credit Billing Act in or after 2000.
11. Any insurance agreement under which any person carrying
on an insurance business may be liable to satisfy all or part of a
judgment which may be entered herein or to indemnify or reimburse for payments made to satisfy the judgment.
12. Screen dumps or excerpts from defendant’s periodic reports
to credit bureaus concerning plaintiff’s account between January 1,
2005 and May 30, 2006.
[Attorney for Plaintiff]
F.6 Sample Consumer Leasing Act
Interrogatories
This discovery is based on documents provided by Michael Donovan, David Searles and Cary Flitter, all Pennsylvania attorneys
with consumer law practices. It is based on the particular facts of
a case and must be adapted by a competent professional for use in
other cases.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
)
)
)
)
)
)
) CLASS ACTION
) JURY TRIAL
v.
) DEMANDED
)
NISSAN MOTOR
)
ACCEPTANCE CORP.
)
Defendant )
)
BRIAN S. SMITH, MICHAEL
PARKER and MICHELLE
PARKER, h/w on behalf of
themselves and all others
similarly situated
Plaintiffs
PLAINTIFFS’ FIRST SET OF INTERROGATORIES
To: Defendant Nissan Motor Acceptance Corp. and its counsel:
Pursuant to Federal Rules of Civil Procedure 26 and 33, plaintiffs request that defendant Nissan Motor Acceptance Corp. respond to the following interrogatories no later than June 10, 2000.
DEFINITIONS AND INSTRUCTIONS
DEFINITIONS
1. ‘‘Nissan’’ means defendant Nissan Motor Acceptance Cop.
and any of its parents, subsidiaries, divisions, affiliates: predecessors, or successors.
2. ‘‘Nissan Lease Forms’’ means printed forms of motor vehicle
lease agreements that were prepared by or at the direction of
Nissan.
3. ‘‘Lessee’’ means any person who has (a) leased a motor
vehicle from Nissan (whether directly or though persons acting on
Nissan’s behalf); (b) leased a motor vehicle from persons who
Sample Discovery
contemporaneously or subsequently assigned those leases to Nissan: or (c) leased a motor vehicle pursuant to an agreement entered
into on Nissan Lease Forms.
4. ‘‘Lease’’ means any agreement pursuant to which a Lessee
leases or leased a motor vehicle (a) from Nissan (whether directly
or through person acting on Nissan’s behalf); (b) from other
persons who contemporaneously or subsequently assigned the
agreement (or their rights thereunder) to Nissan; or (c) pursuant to
an agreement entered into on Nissan Lease Forms.
5. ‘‘Early Terminating Lease’’ means any Lease (including
without limitation Leases where the lessees are or have been in
default) that were terminated by either party for any reason on any
date prior to the end of term specified in the Lease.
6. ‘‘Early Termination Charges’’ means any money or charges
assessed, demanded. Communicated, or claimed in any way by
Nissan to be owed by the Lessee with respect to any Early
Terminating Lease following the termination of the lease.
7. ‘‘Automobile’’ means a leased motor vehicle and includes
cars, trucks, vans, sport utilities and all other motor vehicles leased
by Nissan.
INSTRUCTIONS
1. If you object to any Interrogatory on the grounds that it calls
for disclosure of information that you claim is privileged, you are
to answer such Interrogatory as follows: (a) furnish all information
and facts called for by the Interrogatory as to which you do not
assert a claim of privilege; and (b) for each item of information for
you do assert a claim of privilege, state the basis of that claim.
2. Plaintiffs’ Interrogatories are continuing in nature and must be
supplemented in accordance with the Federal Rules of Civil Procedure.
3. The use of the singular shall be deemed to include the plural
and the use of the plural shall be deemed to include the singular.
INTERROGATORIES
1. State the number of Early Terminating Leases for each
calendar year during the period 1999 through the present.
2. Describe all formulas or methods for calculating Early Termination Charges other than or different from that set forth in
paragraph 18 of Plaintiffs’ leases (or substantially similar Early
Termination clause), entitled ‘‘Early Termination Liability,’’ that
were used with respect to any Early Terminating’ lease at any time
from January 1, 1999 to the present and the reasons for their use.
(If no other formulas or methods were used, state ‘‘None.’’).
3. For each formula or method of calculation described in your
answer to Interrogatory No. 2, provide the number of Early
Terminating Leases to which that formula or method of calculation
was applied for each year from 1999 to the present.
4. Describe all formulas or methods for calculating Residual
Values for automobiles leased by Nissan for each year from 1999
to the present.
5. Describe all formulas or methods for calculating the ‘‘Purchase Option’’ price reflected in the lease(s) for automobiles leased
by Nissan for each year from 1999 to the present.
6. Identify by name all committees, departments or divisions of
Nissan responsible for establishing, reviewing and/or monitoring
Nissan’s policies or practices for calculating Residual Values for
automobiles leased by Nissan for each year from 1999 to the present.
Appx. F.7
7. Identify by name, title and last known home address all
Nissan employees and consultants who participated in establishing,
reviewing and/or monitoring Nissan’s policies or practices for
calculating Residual Values and Purchase Option prices for automobiles leased by Nissan for each year from 1999 to the present.
8. Identify by name all committees, departments or divisions of
Nissan responsible for establishing, reviewing and/or monitoring
Nissan’s policies or practices for calculating the ‘‘Purchase Option’’ price for automobiles leased by Nissan for each year from
1999 to the present.
9. Identify by name, title, phone numbers and last known home
address all current and former Nissan employees who participated
in establishing, reviewing and/or monitoring Nissan’s policies or
practices for calculating the ‘‘Purchase Option’’ price for automobiles leased by Nissan for each year from 1999 to the present.
10. Identify by name, title and last known address all current and
former Nissan employees responsible for determining, reviewing
or approving the reserves or allowances set by Nissan to cover
expected lease losses for each year from 1999 to the present.
11. Identify by name, title and last known address all current and
former Nissan employees responsible for determining, reviewing,
or approving the amount of the losses Nissan incurred due to the
gap between the market price of its off-lease vehicles and the
Residual Value Nissan had placed on them at lease inception for
each year from 1999 to the present.
[Attorney for Plaintiff]
F.7 Sample Consumer Leasing Act
Request for Production of
Documents
This discovery is based on documents provided by Michael Donovan, David Searles and Cary Flitter, all Pennsylvania attorneys
with consumer law practices. It is based on the particular facts of
a case and must be adapted by a competent professional for use in
other cases.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
)
)
)
)
)
)
) CLASS ACTION
) JURY TRIAL
v.
) DEMANDED
)
NISSAN MOTOR
)
ACCEPTANCE CORP.
)
Defendant )
)
BRIAN S. SMITH, MICHAEL
PARKER and MICHELLE
PARKER, h/w on behalf of
themselves and all others
similarly situated
Plaintiffs
11
Appx. F.7
Truth in Lending
PLAINTIFFS’ FIRST SET OF DOCUMENT REQUESTS
PLEASE TAKE NOTICE that pursuant to Rules 26 and 34 of
the Federal Rules of Civil Procedure, plaintiffs request that defendant Nissan Motor Acceptance Corp. (‘‘Nissan’’) produce for
inspection and copying the documents requested below, at the
office of Donovan Miller, LLC, 1608 Walnut Street, Suite 1400,
Philadelphia, PA, on or before June 10, 2000. Defendant shall
further comply with Rule 34jb) of the Federal Rules of Civil
Procedure by producing said documents, as they are kept in the
usual course of business, and shall organize and label them to
correspond with the categories in this request. Defendant shall
supplement responses under Rule 26(e) of the Federal Rules of
Civil Procedure.
INSTRUCTIONS
A. ‘‘Defendant’’ and ‘‘Nissan’’ refer to defendant Nissan Motor
Acceptance Corp. and its parents, subsidiaries, divisions, affiliates,
successors, officers. Directors, employees, and agents, including,
but not limited to; accountants and attorneys, advertising firms,
marketing companies, or market surveyors.
B. The term ‘‘document’’ means the original and all copies,
including all copies which are different in any way from the
original (whether by interlineation, receipt stamp, notation, indication, copy sent or received, or otherwise) regardless of location,
of all writings of every species and variety, cards, tapes, films and
photographs which embody any handwritten, typed, printed, oral
or visual communications or representations, including, but not
limited to, correspondence, drawings, letters, telegrams, memoranda, telexes, telefaxes, cables, telephone messages, diary entries,
reports, records, handwritten notes: inter-office and intra-office
communications, notations of any sort or conversations or meetings, charts, books, indexes, canceled checks, stubs, receipts,
orders, invoices, statements of account: balance sheets, ledgers or
other bookkeeping documentation, agreement, contracts, instructions, minutes, or any other written, recorded, transcribed,
punched, taped. filmed or graphic matter, however produced or
reproduced, within the possession, custody or control of Nissan, or
any person acting on its behalf. A draft or non-identical copy is a
separate document within the meaning of this term. The definition
of ‘‘document’’ also includes information contained on computers,
or disks, including e-mail (‘‘computerized data’’). Such computerized data should be downloaded to a disk and produced in that
form.
C. ‘‘You’’ and ‘‘your’’ mean Nissan.
D. Any sentence or phrase formed in the disjunctive shall also
be taken in the conjunctive, and vice versa; so as to bring within
the scope of the discovery request all responses that might otherwise be construed to be outside of its scope.
E. Any verb formed in the present tense shall also be taken in
the past: future. And imperfect tenses, and vice versa.
F. For the purpose of these document requests, wherever necessary to ensure completeness or accuracy, words employing the
masculine gender include the feminine and neuter genders, words
employing the neuter gender include the masculine and feminine
genders, and words employing the feminine gender include the
masculine and neuter genders.
12
G. ‘‘Nissan Lease Forms’’ refers to printed forms of motor
vehicle lease agreements that were prepared by or at the direction
of Nissan.
H. ‘‘Lessees’’ refers to any persons who have: (a) leased motor
vehicles from defendant (whether directly or through persons
acting on defendant’s behalf); (b) leased motor vehicles from
persons who contemporaneously or subsequently assigned those
leases to defendant; or (c) leased motor vehicles pursuant to
agreements entered into on Nissan Lease Forms.
I. ‘‘Leases’’ refers to agreements pursuant to which Lessees
lease motor vehicles from defendant (whether directly or through
persons acting on defendant’s behalf), from other persons who
contemporaneously or subsequently assigned said leases (or their
rights thereunder) to defendant, or pursuant to agreements entered
into on Nissan Lease Forms.
J. ‘‘Meeting’’ refers to any gathering of two or more persons,
whether it was by telephone, or occurred in connection with some
other activity.
K. ‘‘Person’’ or ‘‘persons’’ refer to natural persons, proprietorships, governmental agencies, corporations, partnerships, trusts,
joint ventures, groups, associations, organizations, and all other
entities.
L. The use of the singular shall be deemed to include the plural
and vice versa.
M. ‘‘Concerning’’ means relating to: referring to, describing,
evidencing or constituting.
N. ‘‘Communication’’ means any transmission or exchange of
information between two or more persons, orally or in writing, and
includes, without limitation, any conversation or discussion,
whether face-to-face or by means of telephone, telegraph, telex,
telecopier, electronic or other medium.
O. ‘‘All’’ means all or any; ‘‘any’’ means any or all.
P. The connectives ‘‘and’’ and ‘‘or’’ shall be construed either
disjunctively or conjunctively as necessary to bring within the
scope of the discovery request all responses that might otherwise
be construed to be outside of their scope.
Q. ‘‘Early Terminating Leases’’ refers to any Leases (including,
without limitation, leases where the Lessees are or have been in
default) in which Nissan’s right to demand the payments described
in the paragraphs in the Nissan Lease Forms titled ‘‘Voluntary
Early Termination’’ and ‘‘Early Termination Because of Any Other
Default’’ was triggered.
R. ‘‘Early Terminating Lessees’’ refers to Lessees who terminated their lease(s) before the end of the contractual lease term.
RELEVANT TIME PERIOD
This request seeks all responsive documents created during or
relating to the period January 1, 1999 through the present.
INSTRUCTIONS
A. Production is requested of documents in full, without abbreviation, expurgation or redaction.
B. Unless otherwise requested, one copy of each document
requested is to be produced. Any copy of a document that varies
from the original or from any other copy shall constitute a separate
document and must be produced.
C. If any document is withheld from production under a claim
of privilege or other exemption from discovery, you are to state the
Sample Discovery
title and nature of the document and furnish a list signed by your
attorney of record, giving the following information with respect to
each document withheld:
1. the name and title of sender and the name and title of
recipient;
2. the date of the document’s origination;
3. the names of each person or persons (other than stenographic
or clerical assistants) participating in the preparation of the
document;
4. the name and position, if any, of each person to whom the
contents of the documents have heretofore been communicated by copy, exhibition, reading, or substantial summarization;
5. a statement of the specific basis on which privilege is claimed
and whether or not the subject matter or the content of the
document is limited to legal advice or information provided
for the purpose of securing legal advice;
6. the paragraph number of those requests to uhich the document is responsive; and
7. the identity and position, if any, of the person or persons
supplying the attorney signing the list with the information
requested in subparagraphs 1–6 above.
D. This document request is a continuing one, and any document
discovered or otherwise obtained, subsequent to production, which
would have been produced had it been available or its existence
been known at the time of production, is to be supplied forthwith.
E. If any document requested herein was at one time in existence, but has been lost, discarded, or destroyed, identify such
document as completely as possible, providing as much of the
following information as possible: (i) the subject matter of the
document; (ii) the approximate date and circumstances under
which it was lost, discarded, or destroyed; and (iii) the identity of
all persons having knowledge of its contents and authorizing or
having knowledge of the circumstances surrounding the disposal of
the document.
F. For each of the categories or documents requested, defendant
shall produce documents sufficient to identify all variations of the
practices in question over the course of the relevant time period. To
the extent the practices and documents are uniform. Representative
documents will suffice.
DOCUMENTS REQUESTED
1. All documents reflecting or referring to studies, analyses,
reports or formulas for determining, setting or estimating ‘‘Residual Values’’ of automobiles leased by Nissan.
2. All documents (including communications between Nissan
and automobile dealers, dealerships or others who enter into Leases
with Lessees), concerning the method(s) used to calculate the (a)
Estimated Residual Value of Vehicle, (b) Purchase Option Price per
the lease and (c) the Total Lease Charge for automobiles leased
pursuant to Nissan Leases.
3. Documents sufficient to identify the following with respect to
Early Terminating Leases for each of calendar years 1999, 2000,
2001, 2002, 2003, 2004, 2005 and 2006 (to date):
a. the number of Leases entered into by lessees;
b. the number of Early Terminating Leases;
c. the number of instances in which the ‘‘Adjusted Lease
Balance’’ of the leased Vehicle at early termination exceeded
the leased Vehicle’s ‘‘Realized Value’’;
Appx. F.7
d. the number of instances in which the Vehicle’s ‘‘Realized
Value’’ exceeded the ‘‘Adjusted Lease Balance’’ figure; and
e. the average dollar amount by which the Adjusted Lease
Balance exceeded the ‘‘Realized Value,’’ or vice versa.
4. All documents concerning any changes during the relevant
time period in the method used to calculate the ‘‘residual value,’’
‘‘Purchase Option’’ price, ‘‘Realized Value,’’ ‘‘Total Lease
Charges,’’ ‘‘Rate Implicit in the Lease,’’ or ‘‘Estimated Residual
Value of Vehicle’’ for Nissan Leases and Vehicles leased pursuant
thereto.
5. All documents concerning any changes in the paragraph in
Nissan Lease Forms titled ‘‘Early Termination Liability.’’
6. A11 of the Nissan Lease Forms that were used in connection
with Leases.
7. Documents sufficient to identify all policies (actually implemented or contemplated) pursuant to which Nissan made or makes
payments to automobile dealers (or dealerships) who purchased
leased Vehicles upon the termination of Leases in a manner that
triggers the paragraphs in Nissan Lease Forms titled ‘‘Early Termination Liability’’ or ‘‘Early Termination Because of Any Other
Default.’’
8. Documents sufficient to identify all policies or practices
(actually implemented or contemplated) pursuant to which Nissan
made or makes payment to automobile dealers, dealerships or
others who purchase Vehicles that had been subject to Leases, upon
the conclusion of the lease term for such Leases.
9. Documents sufficient to identify all policies (actually implement or contemplated) pursuant to which Nissan allowed or allows
automobile dealers, dealerships, or others, to purchase Vehicles
that had been the subject of Leases, for a price that is less than the
Estimated Residual Value of Vehicle or Purchase Option Price set
forth on a given Lease.
10. All documents and communications concerning the Lease
(a) dated March 23, 2003 on a Nissan Lease Form which was
executed by plaintiff Parker and Nissan; and (b) dated December
26, 2003 on a Nissan Lease Form executed by plaintiff Smith and
Nissan.
11. All documents and communications including, but not limited to, appraisals and sales receipts, concerning the (a) 2003
Nissan Altima GXE (b) 2004 Nissan Altima that were the subject
of the Leases referred to in Request No. 10 above.
12. All documents reflecting the amount paid by Nissan to the
dealers for or in connection with the Leases referred to in Request
No. 10 above.
13. All documents concerning accounting reserves or charges
established or taken by Nissan with respect to Estimated Residual
Values of Vehicles.
14. Documents sufficient to identify: (a) any programs implemented by Nissan pursuant to which Early Terminating Lessees
were assessed charges upon termination that were calculated by
means other than the formula described in the Lessees’ Leases; (b)
the method used to calculate the charges to Lessees in such cases;
and (c) the number of Early Terminating Lessees who were
assessed charges pursuant to such programs in each of calendar
years 1999, 2000, 2001, 2002, 2003, 2004 and 2005 (to date).
15. All documents comparing the Estimated Residual Value of
Vehicles (as reflected under ‘‘Purchase Option Price’’) on Nissan
leases to residual value estimates employed by any other lessor or
set forth in the Kelly Blue Book, the Automotive Leasing Guide or
any other third party source.
13
Appx. F.7
Truth in Lending
16. Documents sufficient to identify the difference, if any,
between the Estimated Residual Value of Vehicle set forth on
Nissan Leases, and residual value estimates used by Nissan for
accounting or tax reporting purposes.
17. Documents sufficient to identify the manner, if any, in which
the Estimated Residual Value of Vehicle in Nissan Leases differs or
has differed based upon the place of residence of the Lessee or the
place of business of the dealer that assigned the Lease to Nissan.
18. Documents sufficient to identify the manner, if any, in which
the formula used to calculate liability of Early Terminating Leases
differs or has differed based upon the place of residence of the
Lessee or the place of business of the dealer that assigned the Lease
to Nissan.
19. Documents sufficient to identify the manner, if any, in which
the formula used to calculate liability of Early Terminating Lessees
has changed at any point during the relevant time period.
20. For each vehicle make and model, all documents concerning
the Estimated Residual Value of Vehicle assigned to such make and
model for each period during which Nissan calculated such values.
21. All documents concerning accounting reserves or charges
taken by Nissan concerning Nissan’s lease program.
22. All documents concerning the use: for accounting, tax, or
other purposes, of Estimated Residual Values of Vehicles that vary
from those stated in Nissan Leases (under Purchase Option Price).
14
23. All documents concerning the Realized Value of cars that
were previously subject to Nissan Leases, during the period November 1, 1999 through the present.
24. All documents concerning any analysis of the difference
between the Estimated Residual Values of Vehicles set forth in
Nissan Leases and the Realized Value of such vehicles during the
period 1999 through the present.
25. All documents concerning or comparing the Estimated
Residual Values of Vehicles set forth in Nissan Leases (under
Purchase Option Price) and the actual proceeds received upon sale
of such vehicles at lease end.
26. All documents pertaining to any residual value insurance
purchased by or on behalf of Nissan.
27. All documents provided by Nissan to the Consumer Bankers
Association or to KPMG LLP or any other entity in connection
with the Consumer Bankers Association automobile Finance Study
for 2003, 2004 and 2005.
28. All documents referred to or reviewed in connection with the
preparation of Nissan’s responses to Plaintiffs’ First Set of Interrogatories.
29. All documents reflecting Nissan’s document retention policies or practices for each year from 1999 through the present.
[Attorney for Plaintiff]