I am suing someone who said they would invest funds for me by purchasing real estate. They were the manager of the LLC that was supposed to do the investing. I sent out requests for production for the bank account records of the account they used for the investments and for the contracts signed for the alleged performance of work done on the houses. He claims that he no longer has a copy of these records, but has not yet alleged that he has made any effort to obtain copies. Do these documents fall within his "control" so that they must be produced? Thank you.
2 Answers from Attorneys
It is possible that those records are not within his control any more, but I would be surprised. At a minimum, he should tell you from whom those records can be obtained, so that you can subpoena them.
First of all, he cannot simply respond to an inspection demand for documents by saying that he no longer has them. If the responding party states that they are unable to comply, they must state that a diligent search and reasonable inquiry has been made in an effort to locate the item demanded; and the reason that they are unable to comply. If the document is not in the possession, custody or control of the responding party, then the response must state the name and address of anyone believed to have the document. (Code Civ. Proc., sect. 2031.230.)
So if the responses are inadequate, you need to meet and confer and move to compel further responses if the responses are inadequate. Don't get pushed around with lawyers playing discovery games. Keep in mind that you have a limited amount of time, because the court loses jurisdiction to rule on a motion to compel further responses unless the motion is filed within 45 days after service of the responses.
Once you have proper responses, you can have the court issue subpoenas for the third parties who have the records. Personally I think that the absence of records in something like this tends to prove your case and not theirs.