Discovery Methods Part I

In any legal proceeding in Family & Marital law, be it a Divorce action, Paternity action, Modification of Child Support and/or Modification of Contact with of Children, both litigants are equipped with the ability to discover information from the other prior to any hearing, mediation, trial or any other proceeding in the case. Normally, this process called “Discovery” immediately follows the filing of pleadings in the case. The acquisition of information is vital to the proper preparation of a case.

Discovery affords each party not only the ability to determine the financial status of the other party but also extends to questions pertaining to the other party’s interests in sharing time with the minor children, the employment by the other party of a private investigator and/or other experts which the other party may intend to use in the proceedings.

The questions put forth in discovery are not limited to information which is admissible at future proceedings. In fact, the requests need only seek to obtain information which may reasonably lead to the discovery of admissible evidence. There are several different forms of discovery which include the following:

1. Request to Produce Documents

In this request, a party normally seeks to obtain financial documents from the other party for the purpose of determining their income, assets and debts. Such information is essential to a determination of child support, alimony and the equitable distribution of the marital estate. Typical documents sought in a request to produce are filed personal income tax returns, W-2s, 1099s, K-1s, etc; corporate or business tax returns including all attachments filed therewith, recent pay stubs (if the party is employed) or the ledgers and accounts of any business owned in whole or in part by the other party. Loan applications over the past several years may reveal that a party may state inflated income under oath to secure the loan which raises serious questions regarding that party’s actual income. In such an instance, a deposition or request for admissions (discussed below) may be necessary to follow up on a discrepancy. Monthly credit card statements, bank statements, retirement account statements, pension information, etc. are also commonly sought.

2. Interrogatories

Interrogatories are written questions propounded on the opposing party which most often seek information which augment the production of documents and also provide additional information. While interrogatories are limited to the scope of written questions, the answers to the questions must be answered under oath and notarized. One major benefit of using interrogatories as opposed to taking a deposition is the additional substantial expense of a deposition. Once the written responses are received and reviewed, further sets of interrogatories may be propounded to follow up on the initial responses.

3. Depositions

The taking of a deposition is normally employed after receiving documents produced and the answers to interrogatories. My policy is normally to wait until the parties have had at least one opportunity to reach an agreement at mediation (a mandatory process before noticing a case for trial) before scheduling a deposition, but this will depend on the thoroughness of production and the frankness with which the interrogatories were answered.

Depositions are taken before a Court Reporter who records everything stated on the record. Both parties will typically have their counsel with them at a deposition. The party taking the deposition will spend several hours with counsel preparing questions for a deposition and will also determine if additional documents be produced at the deposition. If a party wishes to request additional documents, a subpoena duces tecum will be sent with the notice of deposition requiring the party being deposed to bring specific documents with them to the deposition. Depositions normally last several hours and with the cost of the court reporter and two attorneys may be financially prohibitive in some circumstances.

4. Requests for Admissions

This method of discovery is normally employed when a party has a suspicion that the other party may be holding back certain specific information relevant to the issues in the case. Before going to the expense of investigating such a suspicion, a party may send a request for admission to the other party asking them to admit to the authenticity or existence of certain information/documentation. The party receiving such a request must be very careful to honestly respond to these requests under oath because if they deny a request which is honesty should be admitted, and the party thereafter discovers evidence showing the request should have been admitted, the party sending the request will be entitled to recovery the attorney’s fees and costs associated with investigating and acquiring evidence that the request should have been admitted. In as much as this expense may be prohibitive, the responding party will normally make a proper admission rather than take the risk of incurring the expense.

In Part II, coming next week, I will explore the ramifications of failing to deal thoroughly in discovery matters, the procedure and the approximate time involved in moving through this process to mediation and beyond.