The Discovery Process in Family Law

1. The Discovery Process in Family Law Chapter 12

2. Discovery Tools • Paralegals will help prepare: • Interrogatories • Requests for the production of documents (and things) • Requests for physical & mental examinations • Requests for admissions • Depositions

3. Interrogatories • Limited to the parties of the lawsuit • Served directly upon the party • Must be answered under oath • Objections to specific interrogatories may be lodged: • Irrelevant • Overbroad • Duplicative • Privileged • Spousal • Attorney/client • Physician/patient • Therapist/client • Cleric/penitent

4. Interrogatories, cont. • Useful for identifying: • Location & value of marital assets • Bank & stock accounts • Real property • Separate property • Employment information • Income • Bonuses • Health & life insurance • Pension information • Non-monetary compensation

5. Interrogatories, cont. • Non-financial information, used in custody determinations: • Spouse’s roommates, or details of cohabitation • Details of spouse’s medical treatments • Children’s medical care • Day care providers

6. Preparation • Paralegals may be responsible for drafting interrogatories • Review the file • List any gaps in information • Be sure the client can’t provide the information • Meet with the client to review information & draft proposed interrogatories • Review draft interrogatories with attorney & revise, if necessary • May be sent directly to opposing party, or may need to be filed with the court, depending on the jurisdiction.

7. Response to Interrogatories • The paralegal may be in charge of monitoring the opposing party’s response to the client’s interrogatories • Check the Rules of Court for response times • Check for any requests for extensions • Determine whether there is an agree-upon time for response • If there has been no communication at all: • Notify the supervising attorney • May need to prepare a Motion to Compel Discovery

8. Responses, cont. • If the time has elapsed without an objection to the interrogatories being filed, they must be answered • If there are objections (or motion for a protective order), they can be answered by a Motion to Compel Answers, as well • A review of the answers will fill in factual gaps and may trigger follow-up through requests for production or admissions

9. Preparations of Responses • Review the interrogatories with the supervising attorney to identify potential objections • May send a copy of interrogatories with a cover letter to the client, requesting preliminary answers in order to help prepare for the meeting • Meet with clients and help them prepare to answer truthfully & accurately under oath • Can help client articulate accurate responses • Will review answers to remove information beyond the bounds of the inquiry • Prepare the final document for review by the attorney and, after final revisions, the client will sign under oath, administered by a notary or officer of the court. • Sent to the opposing counsel, or filed with the court, per jurisdictional requirements.

10. Answering Interrogatories • Information may be within the client’s control, but not easily obtained: • Health plan details • Pension or insurance information • Paralegal will help client access this information by obtaining releases and identifying the proper contacts, or helping the client make the contacts

11. Requests for Production • There will be necessary documents under the control of one party, and the paralegal will draft a request to inspect these: • Tax returns • Canceled checks • Tuition & camp fee information • Health insurance plans • Insurance policies • Driver’s license • Pay stubs • Titles to cars, boats, other vehicles, etc. • Production required unless there is an objection

12. Objections to Requests for Production • The requesting party may have asked for privileged or confidential information • The responding party may not have access to or know where to find the requested document • There may be requests to reveal intellectual property or protected business information, which should be discussed with the attorney

13. Follow-up on Requests for Production • The paralegal can compare the documents submitted to the original requests • Any documents the were not produced should be reported to the attorney, along with any objections tendered by the other side • The documents received may open up new areas of inquiry & trigger additional requests

14. Cataloging Results • Paralegal will organize & summarize the results: • Chronologically • By category of expenditure • Food • Clothing • Shelter • Utilities • Car expenses • Taxes • School, church, children’s activities • Entertainment, etc.

15. Responses to Requests for Production • As in interrogatories, review requests with the attorney & send a copy to the client for a preliminary work-up • The attorney will identify any objectionable requests, and the paralegal will assist the client in obtaining the necessary information • Some information may need to be shielded by a protective order or confidentiality agreement

16. Motion for Protective Order/Approve Confidentiality Agreement • May require a motion, affidavit and/or brief or memorandum of law in support of the motion, and an order • The paralegal may need to research the basis for the request and the legal standard required for suppressing the requested information

17. Physical or Psychiatric Exams • May impact on the custody or unsupervised visitation of children • There may be a question of paternity • Physical or mental condition may be the basis for claiming permanent alimony or additional property awards • High costs of treatment • Inability to work

18. Medical Examinations • By Request • Automatically granted after 30 days without objection • If granted, opposing party is contacted to schedule the exam within a reasonable time • Failure can result in a motion to compel • Objections will result in a negotiated compromise or a court hearing • Some jurisdictions require a motion/order

19. Response to a Request • Attorney may wish to discuss it with the client prior to a response • May result in an objection or negotiated parameters • Opposing counsel should be notified of the limitations proposed, or receive memorialization of the agreed upon limitations

20. Client’s exam • Once all objections and parameters have been dealt with, the paralegal may arrange for the appointment • Notify client • Remind client • Make sure the firm receives a copy of the results • Be sure the opposing side has notification of compliance

21. Paternity Exam • Usually no grounds for privacy objection based upon unnecessary intrusion, since it only requires an oral swab • There may be objections based upon the “psychological parent” theory, that it would not be in the child’s best interest to disturb the parent/child relationship • Adds to the disruption of the child’s life • Client will continue parental obligations under presumption of paternity

22. Requests for Admissions • If not refuted, deemed admitted • May object and • Compromise • Have a court hearing • Review possible requests with attorney, draft, and review final copy • Once filed, track the timeline for responses • May produce stipulations: modifications of requests that result in admission

23. Response to Requests for Admissions • Review with the attorney • Send requests to the client • Set up meeting for client & attorney • Monitor the reply deadline to avoid inadvertent admissions • If there are objections, they must be filed and a hearing scheduled • If there are hearing conflicts, a continuance can be sought, and the hearing should quickly be rescheduled

24. Depositions • Usually only necessary in property or sole custody disputes • Available for parties or non-party witnesses • Oral or written questions, answered orally, under oath, by the deponent • A court reporter is hired to make a record and, in many cases, swear in the witnesses • After being worn in, the deponent will be asked questions on direct exam by the deposing party’s attorney.

25. DIRECT EXAMINATION CROSS-EXAMINATION REDIRECT Scope of Examination

26. Expenses • Two attorneys (possibly paralegals) are present, each with an hourly rate • Expert witness may charge for depositions • Non-party witnesses may be paid for travel expenses • If deposition is out-of-town, travel expenses for the lawyers need to be factored in

27. Notice of Deposition • Time & place • May negotiate for neutral territory (not in either law office) • Negotiate an exchange of information for the more expensive depositions • Subpoena non-party witnesses • Confirm service • Duces tecum will include a list of documents that need to be produced at the deposition

28. Paralegal Role • Work out the schedule • Check with attorney & client • Block out proposed time on schedule • Draft notice • Arrange for site • Schedule rooms: Refreshments, restrooms, aural privacy • Be sure there’s copying equipment available • Hire court reporter • Send notice of Intent to Depose a Non-Party Witness

29. Disclosure of Assets • Documentation needed at the deposition needed to: • Identify assets • Value assets • May be done without deposition • Review in-take sheet with attorney • Follow-up with client to identify possible assets • Failure to comply with request can result in a contempt motion

30. Contempt Motion • Paralegal may draft the motion which may include sanctions & costs • Affidavit of fees & costs • Based upon detailed accounting of attorney time • Any court costs paid • Limited ONLY to the time needed to enforce a valid order • Court will award “reasonable” fees

31. Preparation of Response • May object to requests, supported by a memorandum of law • May respond with information, signed by the attorney: • Lists assets (spreadsheet may be useful) • Copy necessary documentation of value

32. The Financial Affidavit • Sworn statement enumerating assets: • Real property • Personal property • Cash • Cars • Furnishings • Stocks, bonds, CDs • Art, jewelry, collections, etc., with appraisals

33. The Financial Affidavit, cont. • Liabilities • Credit card balances • Student loans • Car loans • Mortgages • Court judgments • Income, earned & unearned

34. The Financial Affidavit, cont. • Expenses • Taken from the in-take questionnaire • May need to be transferred to court form • Review with client • Must be complete and accurate • Reviewed & signed by attorney

35. Upon Receipt of an Affidavit • Review opposing side’s information with client to identify gaps • Compare to file information: • Interrogatories • Requests for production, admissions • Depositions