Can a defendant ask for discovery before the plaintiff if plaintiff has not done so first in a civil case?

UPDATED: Oct 4, 2011

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Can a defendant ask for discovery before the plaintiff if plaintiff has not done so first in a civil case?

I have a mediation date in 20 days but have not received any requests for production/discovery what-so-ever from plantiffs. Can I go ahead and request production of discovery from them? Since they have 40 days to respond, but only 20 days until the mediation date, how does that work? Do I ask the court for a continuance?

Asked on October 4, 2011 under Bankruptcy Law, Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Yes, if you're now in the phase of the litigation in which discovery is sought, the defendant can--and should--seek it; there is no obligation to "wait your turn" and let plaintiff seek discovery first. Note that mediation generally goes no while discovery is ongoing, so it's not the case that discovery must be completed first, though if you feel that the scheduled mediation date is inconvenient or inappropriate for any reason, you can seek a continuance. Generally speaking, 1) courts can be fairly flexible about dates, especially earlier in litigation and if it does not prejudice (hurt) the other party in some way; and 2) when you have a question about scheduling, the best thing to do is to call the judge's chambers (office) and speak with his or her clerk--each judge has considerable discretion in scheduling, so rather than rely only on general rules or principals (though you do check them first), get the answer straight from the horse's mouth.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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