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Erin Blohm
Erin Blohm,
Category: Consumer Protection Law
Satisfied Customers: 2
Experience:  ATTORNEY at JOHNSON HANAN & VOSLER
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Plaintiffs' Motion to Reconsider Court's Rejection

Customer Question

Plaintiffs' Motion to Reconsider Court's Rejection of Fraud Plea due to Defendants Prejudicing the CourtAt our last hearing the Defendants had filed a motion to dismiss our case because I demanded they cite the rule that allowed them to attend the deposition of a party they were not representing (the auction buyer)
I sent the Defendants 3 emails over a 5 day period requesting they cite this rule and if they did I would be happy for them to attend this deposition. They were non responsive. They did not attend this deposition of the auction buyer, and they did not bring their 3 employee deponents to be deposed that day as subpoenaed, instead they moved to dismiss the case. This deposition was scheduled for 1-day before the deadline for depositions ran out, because Defendants were not responding to my multiple requests to schedule their employee deponents.The Defendants were first to speak at this hearing and went on a long rant to the effect that I was on a vendetta of vengeance and wanted to get this deponent in a secret location for a secret videotaping and 'get a piece' of him. They said they did not attend because they feared for their safety.
The Deponent was treated with the utmost courtesy and Defendants offered no proof whatsoever that I had behaved improperly aside from demanding they show me the rule that allowed their attendance.The video-deposition was done before a notary and filed by the notary with the court the next day.
I offered to let the Defendants add Eratta objections to this deposition.The judge then reversed a previous discovery ruling that Defendants provide contact information for tenants in default, and phone bills for 2 locations for 8 months (to verify if they were called per contract) On the basis that this only sounded in Fraud.At the hearing I had presented complaints of 2 different individuals with similar fact sets. (The company 'lost' customer info, stopped charging their credit-cards, forced them to pay late fees)The Judge said I did not Plead Fraud with Specificity, and barred all discovery related to other tenants.
Months previously I had filed an official Pleading of Fraud with Specificity. This was not heard at the hearing.PLEASE CITE ANY CASE LAW TITLES you can think of that relate to: ***** ***** Discovery, Rejection of Plea before discovery.Can a Judge reject a plea of fraud without a hearing on the original pleading, before any employees are deposed, and bar all discovery (2-Facilities, 8-months) related to other tenants because of the rejected plea of fraud?Do you think I should or could get the Court to allow the video-deposition of the auction buyer to be admissible? (Because of Eratta Objections by Defendants)
If it is not admissible, can I use it to ensure the witness doesn't tell a different story at trial?Can I call wittiness at trial that have not been formally deposed?The deadline for depositions has passed, but the Court is allowing for Defendant employees to be deposed because they didn't show before.
If I find new witnesses can I depose them? Can I just call them in court at trial?
Submitted: 5 months ago.
Category: Consumer Protection Law
Expert:  Erin Blohm replied 5 months ago.

Generally speaking, fraud must be pled with particularity in the original or amended petition/ complaint filed by the plaintiff. The Federal Rule of Civil Procedure speaking to this is FRCP § 9(a). Upon the filing of a Motion to Dismiss, the Court will review the pleading and make a determination as whether or not the claim of fraud was properly pled. See, Committee On Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 216 (1983); Estrada v. Kris, 2015 OK CIV APP 19. Further, a judge may limit a party’s ability to conduct discovery on certain issues, claims, etc. Most states have statutory authority permitting a judge to so limit discovery for a variety of reasons. See, 12 O.S. § 3226(C)(1)(a)-(h). If a judge finds that a claim of fraud was not properly pled and dismisses that claim, no discovery may be had on the claim.

As to who may be present during a deposition, anyone may be present. It is the burden of the individual attempting to limit who may be present to seek a protective order. See, FRCP § 26(c)(1)(E). Most states have some form of this rule in their statutes. See, 12 O.S. § 3226(C)(1)(e); Washington’s CR 26(c)(1)(E).

Most, if not all states, require a deposition to take place before an officer authorized to administer oaths by the laws of the place where the examination is held, which includes a certified shorthand reporter (CSR) or a licensed shorthand reporter (LSR). Unless the notary was also licensed or certified or court-appointed in some way, and created a transcript of the deposition, the Court is unlikely to permit the “video-deposition” to act as a deposition, as it will not qualify as a deposition unless it is sworn testimony. You may be able to present the video as impeachment evidence should the witness say something different at trial, a hearing, or a deposition.

Best of luck to you. If you do not require additional assistance, please rate my service. Also, kindly note, this is not legal advice and does not create an attorney-client relationship/ privilege and may not be applicable in all situations and/ or jurisdictions.

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