Thanks for your question and good evening.My sympathy here for your situation and dilemma.
You will need to wait until the hearing is set.Then you would subpoena the custodian of the records for the retirement plan.
You would be subpoenaing all of the records pertaining to your (fathers name).This is called a subpoena duces tecum, it gets you the custodian and the records in dispute.
So I cannot ask for the records before the hearing is set?
You would complete the subpoena and give it to the corut clerk for signature.The clerk will advise when it is signed and you ned to serve it on the plan administrator.
No because these are non party records.This administrator is not a party to the suit.
The court clerk already signed and sealed the blank subpoena.
You can file discovery here--say motion to produce if you think the other party has the information you seek.
The subpoena needs to have a date here so that the custodian is subpoenaed to appear.
Can you please call me?
So a subpoena does not serve the same purpose? They asked me which type of subpoena I wanted; for records or for a person to appear. The top of the subpoena says "Subpoena for the Production of Evidence."
Are you still there?
If you are still answering please send me your partial response now so that I will not have to sit by my computer wondering if this session is now terminated.
Ok my last email is not showing.
Mr. Ray, you sent me to a link for Athens Ga. I am in Atlanta if that makes a difference. Clayton County. I have an ACTUAL subpeona. It is signed by the clerk ALREADY.
What you have told me so far is that I cannot get documents before a second hearing is set. You have also said that the witness must appear with the documents in hand at the hearing.
What you have also said is that there is that the only way I can get the documents before hand is to file a motion to compel.
Is this your answer?
I will opt out here and let another expert respond.At least two experts have already agreed with my answers and reference that I provided to you. .You have not been charged and there is no need to respond as it will slow down the process.Thanks for your patience.
Hello and Welcome to JustAnswer, My name is XXXXX XXXXX my goal is to provide you with Excellent Service, I see that the Expert who was assisting you has opted out of your question. I would like to help, if I may,
1. You asked, "Can I ask for the documents in the second paragraph and leave the first paragraph blank?"
Yes, you can. You would still have to fill in the date and time for the custodian of these records of your late father's account to make these files available to you for your review and copying. If the custodian objects, he will have to file a "Motion to Quash". Otherwise, he will have to make these files available to you;
I understand that the custodian is not a party to the suit, however, there are times when a non-party holds records which are necessary to a litigant. This happens often when a Subpoena is served on a cable television provider for the records of a subscriber. The Cable Company will notify the party whose records are being requested and if that person objects, then he woulod be the party to file a Motion to Quash,
2. You also asked,
"Who do I need to subpoena to get these facts in court? Can an affidavit suffice?"
Answer 2 & 3
2. You can serve a Subpoena on the insurance company who wrote the policy and you can also serve a Subpoena on anyone who had first hand knowledge of the forgery and who saw the actual forged signature. In other words, they cannot take the witness stand and say, "X told me he saw the signature and determined it was a forgery";
3. An Affidavit will not be admissible unless the Affiant is in Court and can be cross examined. If the Affiant (Person who signed the Affidavit) is not present in Court, the Affidavit would be excluded. The Rules of Evidence provide, with certain exceptions which are not present here, that a writing which is offered for the truth of its contents, will be excluded, unless the person who wrote it is available for cross-examination.
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