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Discovery in Litigation

What is Discovery of Evidence?

During a lawsuit, each party has the opportunity to request formal “discovery” from the opposing party. The Discovery process is accomplished in a variety of ways, one is to send the opposing party a formal set of requests. These requests each seek different types of information from the opposing party.

Uniform and non-uniform Interrogatories:

Uniform interrogatories are a series of questions that are listed in the Arizona Rules of Civil Procedure. Depending on the type of case there is a set of different questions for the opposing party.

Non-uniform interrogatories are questions written by one party to a lawsuit. They send the questions to the opposing party and wait their response.

For example, a non-uniform interrogatory might ask, “Explain in detail why you did not make the payments as agreed”.

Request for Admissions:

“Requests for Admissions” allow one party to present the opposing party with statements that they must either Admit or Deny. They are written in a way so that the responding party must Admit the statement. If the responding party does not respond in the affirmative then they must provide a detailed explanation of why they denied the statement.

For example, a Request for Admissions could state,
“Admit that you entered into a written contract with the Plaintiff”.
“Admit that under the contract you were to pay the Plaintiff $5,000 a month.” “Admit that you did not pay the Plaintiff $5,000 per month”.

A party might deny one of the above statements of admissions by responding. “I deny that I was to pay Plaintiff $5,000 per month because I gave him a parcel of land as payment for the money borrowed.”

The effect of not responding to the Requests for Admissions is quite harsh. Under Arizona Rule of Civil Procedure 36(a)(4) “A matter [request] is admitted unless, within 30 days after being served, the party to who the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.”

Why does it matter if the Requests for Admissions are deemed Admitted? Well, the party asking for the Admissions can say to the Judge, “Your honor, we’ve proven our case and you should rule in our favor. The Defendants admitted there was a written agreement to borrow money and they admitted that they did not pay back the money as agreed. [Refer to my example above].

Arizona Rule of Civil Procedure 36(b) does allow a party to file a Motion asking the court for permission to withdraw or amend the admission. “Subject to Rule 16, the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on its merits.”

Request for Documents:

We are given the opportunity to request up to 10 different sets of documents from the opposing party. In Arizona, in the Rule 34 of the Rules of Civil Procedure, the responding party has 30 days to respond to the request for production of documents.

Lastly, similar to 26.1 initial discovery statements. These discovery requests are not submitted to the Court. In fact, the Judge will never see this information unless specifically and formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply exchanging all relevant information with the opposing party.

If you need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Rule 26.1 Disclosure Statement

Rule 26.1 of the Arizona Rules of Civil Procedure requires that the parties to a lawsuit to exchange Initial Disclosure Statements within 30 (thirty) days of the defendant filing an Answer. These disclosure statements are often referred to as “Rule 26.1 Statements” or “Rule 26.1 Disclosures” for short.

Initial disclosure statements are not filed with the court but simply shared with the opposing party as part of the discovery process. Arizona courts require the parties to exchange all relevant information to the opposing party in an attempt to avoid “trial by ambush” and to increase the odds of an out of court settlement.

What Must the Rule 26.1 Disclosure Statement Contain?

Potential Trial Witness. The disclosure statement must list everyone who may testify at trial. Just because a person is listed it does not mean that they must later testify. However, if a person is not disclosed as a potential witness then they may not be called as a witness at trial. It simply gives the opposing party notice that you may be interested in having this person testify at the trial and what they may be testifying about.
A list of other people with knowledge. The disclosure statement must also list persons who will not be called as trial witnesses, but may have information relevant to the subject of the lawsuit.
Written Statements. The disclosure statement must provide a list of any written or recorded statements within their possession.
All forms of Communication and Information. Each party must disclose all relevant communication. This includes emails and text messages. Including electronically stored documents.
List of all other Documents. The disclosure statement must include all other relevant documents that are known to exist, regardless of whether or not they are favorable to your case.

When must the disclosure statements be exchanged with the opposing party?

Initial Disclosure Statements– Rule 26.1(f)(1) requires that initial disclosure statements are exchanged within 30 days of a responsive pleading being filed.

Duty to Supplement Disclosure Statements– Rule 26.1(f)(2) imposes a continuing duty that each party must provide an amended or supplemental disclosure statement each time “new or additional information is discovered or revealed.” The updated information must be disclosed to the opposing party within 30 days of receipt.

If you need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. The Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.

Improperly Recorded Documents

In Arizona, there are no real protections that prevent someone from recording fraudulent documents with a county recorder. A person can literally quit claim the Arizona State Capital building to themselves and the county will record it. The recorder’s office does not have the ability or duty to confirm that the documents are legitimate. Obviously this can cause real problems!

There are multiple occasions where I’ve had a client come into my office panicked because some type of fraudulent document had been recorded involving one of their properties. I’ve seen cases where easements were added without the owner’s knowledge or permission. Plus, I’ve seen parcels split or property completely transferred to another person!!!

WHAT CAN YOU DO IF SOMEONE RECORDS A FRAUDULENT DOCUMENT?

Arizona law will not prevent someone from wrongfully recording documents with the county, however, state law provides for severe punishment against those who do.

Under A.R.S. § 33-420(C), provides penalties against anyone who wrongly records a document. If found guilty, the court can award a minimum penalty of $5,000, or treble damages for the actual financial harm, and attorney’s fees.

A.R.S. § 33-420(A) states:

A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.
A.R.S. 33-420(A)

B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in the county in which the real property is located for such relief as is required to immediately clear title to the real property as provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section. In either case, the owner or beneficial title holder may recover reasonable attorney fees and costs of the action if he prevails.
A.R.S. 33-420(B)

C. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he willfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.
A.R.S. 33-420(C)

D. A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.
A.R.S. 33-420(D)

E. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is guilty of a class 1 misdemeanor.
A.R.S. 33-420(E)

How to Remove an Invalid Lien

Occasionally, I am approached by clients who believe someone has recorded an invalid lien against their property and want to know what they can do to remove it.

A.R.S. 33-420: Discusses the issue of removing groundless or fraudulent liens that have been recorded with the county.

A.R.S. 33-420(A): Provides a property owner at least $5000, or treble the actual damages caused by the recording of forged, groundless, misstated, or contains false claims.

A.R.S. 33-420(C): Provides the property owner $1000, or treble actual damages, whichever is greater, and attorney fees and costs, if he willfully refuses to release or correct such document of record within 20-days from the date of a written request from the owner or beneficial title holder of the real property.

If you need help from an experienced shared well attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

Arizona Settlement Conference

Mandatory Settlement Conferences

Settlement conferences are mandatory in Arizona civil cases involving disputes of more than $50,000. Settlement conferences are required in an attempt to alleviate the Arizona Superior Courts from managing all the cases by themselves. The rule for mandatory settlement conferences is done in part to help the parties settle without a trial.

Rule 16.1 of the Superior Court Rules of Civil Procedure that makes settlement conferences mandatory in any cases where the amount in dispute is more than $50,000. If the amount in dispute is less than $50,000 then an Arbitration Hearing is held–in lieu of the Settlement Conference.

Rule 16.1(c) requires that,

“every party and its counsel must attend a settlement conference…Additionally, each party must have a representative present who has actual authority to enter into a binding settlement agreement.”
Superior Court Rules of Civil Procedure 16.1

settlement conference memo

In preparation of the Settlement Conference a memorandum must be prepared and delivered to the settlement mediator and the opposing party.

The Settlement Conference Memo must contain; a) general description of the claims, defenses, and issues in the action, and each party’s position on each claim, defense, and issue. b) a general description of the evidence the party anticipates presenting at trial. c) a summary of any settlement negotiations that have already occurred. d) each party’s assessment of the likely outcome if the action proceeds to trial, and e) any other information that might be helpful in settling the action.

Retired judges often serve as the mediator for the settlement conference. During the day of the conference the parties typically are located in separate rooms and never speak directly to each other.

settlement conference outcomes

It is important to note that the mediator will not making any decision or ruling. The mediator does not have the authority to make a binding ruling. Plus the mediator cannot force either party into accepting or rejecting a settlement offer made by the opposing party. They are simply there to help each understand the other person’s point of view and to see if there is any middle ground upon which all can agree.

Furthermore, the mediator will remind the parties of the huge costs, risk, time, energy and stress that are required to forward a case to trial.

the dunaway law group can help you

If you need help from an experienced lawyer, then contact the Dunaway Law Group by messaging us HERE or calling us at 480-389-6529.

Injunctions and Shared Wells

In the world of law, there are times when simply awarding money will not resolve a dispute. Sometimes, you need the court to step in and say, “Stop that!” or, less commonly, “Make it happen!” That’s where injunctions come in. An injunction is an order issued by a judge that forces a person or entity to perform an action or stop taking certain action.

An injunction is a court order that compels a person to either do or refrain from doing specific acts. There are two main types:

Prohibitory injunctions: These are the most common type. They tell someone to stop doing something, like harassing a neighbor or using a stolen trade secret.
Mandatory injunctions: Less frequent, these require someone to take action, such as cleaning up environmental damage or removing a building that violates zoning laws.

Injunctions are issued to prevent what’s called irreparable harm. This means the harm that would occur if the action is not stopped (or started) can’t be adequately compensated with money. Imagine a unique piece of art being destroyed – you can’t just replace it with cash!

There are also two main timelines for injunctions:

Preliminary injunctions: These are temporary orders issued before a trial to preserve the situation. Think of them as a “hold on” button while the judge considers the case.
Permanent injunctions: These are issued as part of the final judgment in a lawsuit and stay in effect indefinitely, or until certain conditions are met.

It’s important to note that violating an injunction is serious business. It can lead to fines, imprisonment, or even being held in contempt of court.

Here are some real-life examples of injunctions:

A competitor is selling a product that infringes on your copyright. You can seek an injunction to stop them from selling it.
A construction project is causing damage to your property. You can seek an injunction to halt construction until the issue is resolved.
A former employee is violating a non-compete agreement. You can seek an injunction to prevent them from working for a competitor.

Arizona Law on Injunctions. Generally, Arizona law requires the moving party to prove several elements before granting an injunction. Specifically, the moving party must demonstrate by a preponderance of the evidence: a reasonable likelihood of success at trial; the remedies at law are inadequate; the threatened injury to the movant outweighs the potential harm to the nonmoving party; and the public interest would not be disserved by granting the requested injunction.

Hearing on the Injunction. Rule 65(a) requires a hearing on an application for a preliminary injunction for the purpose of providing the party opposing the preliminary injunction to have an opportunity to be heard and present testimony when there are disputed issues of fact. McCarthy Western Constructors, Inc. v. Phoenix Resort Corp., 169 Ariz. 520, 821 P.2d 181 (Ct. App. Div. 1 1991), redesignated as opinion and publication ordered, (Apr. 2, 1991)

Injunction Bond. Under Ariz. R. Civ. P. 65(c)(1), a condition for securing any restraining order or preliminary injunction is the posting by the applicant of security, usually an injunction bond, in an amount fixed by the Court “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.”

The amount of the bond fixed by the Court limits the surety’s liability, but not the amount of wrongful injunction damages that may be recovered from the party obtaining the injunction. Smith v. Coronado Foothills Estates Homeowners Ass’n Inc., 117 Ariz. 171, 571 P.2d 668 (1977).

The surety’s liability on the bond may be enforced by motion in the same action in which the injunction was secured, by proceeding under Ariz. R. Civ. P. 65.1.

The recovery may include the attorney’s fees incurred in securing dissolution of the injunction. U.S. Fidelity & Guar. Co. v. Frohmiller, 71 Ariz. 377, 227 P.2d 1007 (1951); Mason Dry Goods Co. v. Ackel, 30 Ariz. 7, 243 P. 606 (1926).

The fees recoverable are only those incurred in procuring the dissolution of the injunction, however, and not the fees incurred in the general defense of the case, which must be segregated. Hammond v. A.J. Bayless Markets, 58 Ariz. 58, 117 P.2d 490 (1941); Jacobson v. Laurel Canyon Mining Co., 27 Ariz. 546, 234 P. 823 (1925); State v. Williams, 12 Ariz. App. 498, 472 P.2d 109 (Div. 1 1970).

Modification or Dissolution of Preliminary Injunction. Between the date of its issuance and the trial on the merits, a preliminary injunction may be dissolved or modified upon application of the enjoined party, after an answer is filed. See Ariz. R. Civ. P. 65(a)(3).

If the basis for securing a modification or dissolution is the fact that the material allegations of the complaint have been denied, the answer should be verified. Unless such a motion is unopposed, the court must hold an evidentiary hearing. Ariz. R. Civ. P. 65(a)(3).

A trial court’s order dissolving a preliminary injunction is generally reviewed for an abuse of discretion, except that issues of law involved in that determination will be reviewed de novo. Griffis v. Pinal County, 213 Ariz. 300, 141 P.3d 780 (Ct. App. Div. 2 2006), opinion vacated on other grounds, 215 Ariz. 1, 156 P.3d 418, 35 Media L. Rep. (BNA) 1726 (2007).

Rule 65(a)(2)(C), which authorizes an application to dissolve or modify preliminary injunctions, does not provide a vehicle for attacking the original basis for the injunction on grounds that were available when the request for injunctive relief was first heard. Town of Tortolita v. Napolitano, 199 Ariz. 556, 20 P.3d 599 (Ct. App. Div. 1 2001).

Rather, the rule serves the much more limited purpose of providing a means to show that changed circumstances, including matters which could not reasonably have been raised at the preliminary injunction hearing, or changes in the law, require that the injunction be modified or dissolved. TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 307 P.3d 56 (Ct. App. Div. 1 2013); Town of Tortolita v. Napolitano, 199 Ariz. 556, 20 P.3d 599 (Ct. App. Div. 1 2001)

Consolidation of Preliminary Injunction Hearing with Trial on the Merits. In the interests of expediting the final resolution of the dispute, and particularly in instances where most of the evidence that bears upon the controversy will be presented at the preliminary injunction hearing, the court may order that the hearing be consolidated with the full trial on the merits. See Ariz. R. Civ. P. 65(a)(2). Riess v. City of Tucson, 19 Ariz. App. 579, 509 P.2d 651 (Div. 2 1973).

Even where such a consolidation is not ordered, evidence received during the preliminary injunction hearing which would be admissible at the trial on the merits becomes part of the record and need not be offered and received again at trial. See Ariz. R. Civ. P. 65(a)(2)(C).

Violation of Injunction. Disobedience of an injunction may be punished as a contempt of court. Ariz. R. Civ. P. 65(f)(1). See also Green v. Lisa Frank, Inc., 221 Ariz. 138, 211 P.3d 16 (Ct. App. Div. 2 2009) (acknowledging limitations prescribed by language of [former] Rule 65(j) [currently, Rule 65(f)] and discussing inherent authority of the court to dismiss an action for failure to comply with injunctive orders).

The party in whose favor the injunction was issued and who believes the injunction has been violated, must file an affidavit stating that the party against whom the injunction was issued is guilty of disobeying it, and describing the acts claimed to constitute disobedience of the injunction. See Ariz. R. Civ. P. 65(f)(2).

Ariz. R. Civ. P. 65(f)(3) contains detailed order to show cause procedures that must be followed on receipt of the affidavit. Those procedures include setting a date for any written response, and requiring the person allegedly violating the injunction to appear and respond. The order to show cause, and the supporting affidavit, must be served on the person to be charged with contempt at least 10 days before any hearing. See Ariz. R. Civ. P. 65(f)(3) and (4).

If the person against whom the injunction was issued fails to appear or make return on the order to show cause, the court may direct that person’s arrest. If the claimed contemnor is a corporation and fails to appear, an attachment for sequestration of the corporation’s property may issue. See Ariz. R. Civ. P. 65(f)(7).

If, upon appearance, the person against whom the injunction was issued is found to have disobeyed it, the court may commit that person to jail until the contempt is purged in a fashion the court directs, or until that person is discharged by law. See Ariz. R. Civ. P. 65(f)(6).

Injunctions are a powerful tool for protecting your rights and preventing harm. If you think you might need an injunction, consult an experienced attorney then contact the Dunaway Law Group at 480-702-1608 or message us HERE. *This information is provided as informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York