Guideline 4

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A tenant should have an adequate opportunity to prepare for an eviction hearing, including by conducting civil discovery.

Commentary:

Eviction hearings are high stakes legal proceedings and tenants should have access to the basic facts and evidence that underlie a landlord's claims, as well as the opportunity to gather evidence and present affirmative defenses. Federal law prohibits eviction for discriminatory reasons, and most states prohibit retaliation based on a tenant's exercise of rights under the lease or under state or local law, such as requests for repairs, organizing activity, complaints to code enforcement offices or other government agencies about illegal landlord conduct. Many tenants who face eviction reside in properties that are not properly-maintained, and may have defenses or set-off claims based on implied warranties of habitability or statutory or regulatory housing conditions requirements. Even simply verifying the amount of a landlord's charges and a tenant's payments is an important aspect of tenant representation in the eviction context.

Effectively verifying the facts in an eviction case and preparing defenses often requires judicial discovery procedures, which are insufficient or nonexistent in many jurisdictions. Some states have discovery rules designed specifically for summary eviction cases, with condensed timelines and certain compulsory disclosures that a landlord must provide without a request or file in the court record. But many states make no provision for formal discovery, leaving tenants to use the ordinary civil discovery procedures - the timelines for which are seldom remotely practical in a summary proceeding. Some states discourage or even expressly disallow formal discovery altogether in summary eviction cases.