Form 18-6

These questions may be used to establish the authenticity of business records or to establish through the client’s deposition a part or all of the claim that cannot be proved by affidavit. This form is partic­ularly helpful if the client is out of state and it would be cumbersome or expensive to bring him to Texas to testify. For pattern interrogatories to the defendant, see forms 18-15 through 18-20 in this chapter. These questions are to be used only as a guide and cannot be considered appropriate for all lit­igation. Questions based on written documents should be drafted to conform to the specific terms and conditions of the documents giving rise to the creditor’s claim.

These questions are for a sworn account case in which the witness can prove up the written documen­tation supporting the account as business records, as well as the genuineness of the debt. Questions may be added to rebut any raised or anticipated defenses. The witness is to produce and attest to the accuracy of copies of (1) the creditor’s records showing what was sold to the defendant, the charges for those sales, and any payments from or credits otherwise made to the defendant’s account and (2) the invoice(s) sent to defendant.

Pattern Written Deposition Questions to Prove Up Business Records

1.Please state your name.

2.State where you reside.

3.By whom are you employed, and how long have you been so employed?

4.If your answer to question number 3. named [name of plaintiff], state whether or not that entity is the plaintiff in the case for which this deposition is being taken.

5.Describe the general nature of the business of your employer.

6.In what capacity are you employed by Plaintiff?

7.Describe the nature of your duties with Plaintiff.

8.Is it a part of the usual and regular course of business of Plaintiff to keep regular books, accounts, and records of all its financial transactions, accounts, and business dealings?

9.In connection with your employment by Plaintiff, are you familiar with the books, accounts, and records kept and maintained by Plaintiff in the usual and regular course of busi­ness?

10.Do you have any personal supervision, custody, or control over the books, accounts, and records kept and maintained by Plaintiff?

11.Have you examined the books, accounts, and records kept and maintained by Plaintiff in the regular course of business?

12.Do the books, accounts, and records kept by Plaintiff in the regular course of its business show that [name of defendant], Defendant, had or has an account with Plaintiff?

13.If you answered question number 12. in the affirmative, please state whether or not the entries in the books, accounts, and records of Plaintiff that show Defendant’s account with Plaintiff were made in the usual and regular course of business.

14.Are entries in the books, accounts, and records of Plaintiff regularly made at, near, or shortly after the time of the transactions, acts, or events recorded by the entries?

15.Is it part of the regular course of business of Plaintiff for an employee with per­sonal knowledge to make entries or to furnish the information for making the entries in the books, accounts, and records kept by Plaintiff in the regular course of business?

16.Are the books, accounts, and records kept by Plaintiff in the regular course of business that show Defendant’s account with Plaintiff permanent records of Plaintiff?

17.Are the entries in the books, accounts, and records kept by Plaintiff in the regular course of business that show Defendant’s account with Plaintiff original entries of transac­tions between Plaintiff and Defendant?

18.Do the books, accounts, and records of Plaintiff kept in the regular course of busi­ness show Defendant to be indebted to Plaintiff?

19.Is it part of the regular course of business of Plaintiff in keeping its books, accounts, and records to record therein all payments, offsets, credits, and allowances charge­able against its accounts?

20.What is the amount now shown by Plaintiff’s books, accounts, and records to be due to Plaintiff by Defendant after the allowance of all offsets, payments, credits, and allow­ances shown on those books, accounts, and records?

21.Where are these books, accounts, and records of Plaintiff kept and maintained?

22.Do you have an exact copy of the account of Defendant with Plaintiff, as shown by Plaintiff’s books, accounts, and records kept in the regular course of business?

23.If you answered question number 22. in the affirmative, please state whether the copy of the account shown by the ledger sheet or other records referred to in question number 22. was prepared by you or under your personal supervision.

24.Please hand to the officer taking this deposition a copy of the ledger sheet or other record referred to in question number 23., and have the officer attach it to this deposition as Plaintiff’s Exhibit [exhibit number/letter].

25.State whether the permanent records of Plaintiff contain any of the following invoices showing merchandise sold by Plaintiff to Defendant: [list invoice numbers and amounts charged].

26.Are the original invoices referred to in your answer to question number 25. a part of the books, records, and accounts of Plaintiff kept in the regular course of business?

27.Were the original invoices referred to in your answer to question number 25. made by you or under your direct supervision?

28.Please state where the originals of the invoices referred to in your answer to ques­tion number 25. are presently located, and please state who has custody of the invoices.

29.Do you have photocopies of the original invoices referred to in your answer to question number 25.?

30.Are the photocopies of the original invoices referred to in your answer to question number 25. true and correct copies of the originals?

31.Were the photocopies of the invoices referred to in your answer to question num­ber 25. made by you or under your direct supervision?

32.Please hand to the officer taking this deposition the true and correct copies of the invoices referred to in your answer to question number 25. and ask the officer to number them as Plaintiff’s exhibits and attach them to this deposition. Please state the exhibit numbers so assigned.

33.Do the permanent records of Plaintiff show that the merchandise referred to in the invoices was sold to Defendant?

34.Was the merchandise described in the invoices delivered to Defendant?

35.Please state how and when the merchandise was delivered to Defendant.

36.Please state where the merchandise was delivered to Defendant.

37.Please state how the merchandise was ordered from Plaintiff.

38.What amount of money, if any, did Defendant agree to pay to Plaintiff for the mer­chandise?

39.Based on your experience, what, in your opinion, was the reasonable market value of the merchandise?

40.Was a statement showing the amount owed to Plaintiff by Defendant sent to Defendant?

41.If you answered question number 40. in the affirmative, please state the date or the approximate date on which such a statement was sent to Defendant.

42.To what address was that statement sent?

43.How was that statement sent?

44.If your answer to question number 43. was that the statement was sent by mail, please state whether the envelope containing the statement bore the correct amount of postage to reach the addressee.

45.Please state whether the envelope containing the statement referred to in question number 40. was properly addressed, sealed, and mailed in the usual course of business of Plaintiff.

46.Did the envelope referred to in question number 45. bear the name and return address of Plaintiff?

47.Was the envelope containing the statement referred to in question number 40. returned to Plaintiff by the United States Postal Service as being unclaimed or undelivered or for any other reason?