Discovery in TPR Cases and of DFS Records in Other Contexts

1. Discovery in TPR Cases and of DFS Records in Other Contexts Wendy S. Ross, Esq., Senior Assistant Attorney General CJP Blog Talk May 9, 2019

2. TPRs are Civil Cases • The Wyoming Rules of Civil Procedure apply to termination of parental rights cases • Wyo. Stat. Ann. § 14-2-312 • Discovery demands are not appropriate – needs to be a request under the WRCP

3. WRCP Rule 26 Initial Disclosures • Rule 26 specifically exempts Title 14 actions from initial disclosure requirements • Because TPRs are brought under Title 14, there are no initial disclosure requirements for any party in a TPR case

4. Interrogatories • Limit of 25 questions, including discrete subparts • If the Department receives a request with more than 25 questions, the Department will object to answering any question above the limit • Must be answered within 30 days • By the party to whom they are directed • In writing, under oath

5. Interrogatories • Objections • Must be timely and specifically stated or they are waived • Must be signed by the attorney making the objections

6. Request for Production of Documents • RFPs are an appropriate tool to request production of the Department’s filein a TPR case • The Department will produce the file with appropriate redaction in response to an appropriate request • The Department will produce records in its possession, but may object to producing documents not in its possession if those documents are easily available to Respondent (i.e., Respondent’s records) • No limit to how many a party can ask

7. Request for Production of Documents • Must be answered in 30 days • In writing • Responses must be signed by attorney of record, or the party if the party is unrepresented • WRCP 26(g)(1)

8. Requests for Admissions • No limit to how many a party may ask • Must be answered in writing within 30 days • If not answered timely, they are deemed admitted • Must be signed by attorney of record or party • Request to admit genuineness of document • Must be accompanied by a copy of the document

9. Depositions • Leave of court generally not required • DFS may object on basis that cost is not reasonable • If you are requesting more than 10 depositions, leave of court is required

10. Discovery Sanctions • WRCP Rule 37 requires a good faith attempt to procure discovery responses before asking for court intervention • Court is authorized to order sanctions for parties who violate a court order regarding discovery • Including holding a Respondent in contempt of court and entering default

11. Protective Orders • A party may ask the court for a protective order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense • WRCP 26(c) • A motion for a protective order must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action

12. Duty to Supplement Discovery Responses • Parties have an ongoing duty to supplement discovery responses in a timely manner • Sanctions may be imposed for failure to properly supplement discovery responses

13. Pretrial Disclosures • Parties are required to disclose anticipated witnesses, including contact information, and anticipated exhibits at least 30 days before a trial (unless otherwise ordered by the court) • Certain objections must be made within 14 days of disclosure (unless otherwise ordered by the court)

14. Pretrial Disclosures: Experts • Parties must disclose anticipated expert witness testimony at least 90 days before trial (unless otherwise ordered by the court) • The Department most often uses non-retained experts (treating providers) • Disclosure requirements are different than using a retained expert • Pay close attention to scheduling orders and language of WRCP Rule 26(a)(2)

15. Discovery of DFS Records in Other Contexts • Confidentiality provisions for different types of records • CPS: 14-3-214 • APS: 35-20-112 • CHINS: 14-6-437 • Delinquency: 14-6-203(g) • Juvenile probation: 14-6-306 • Benefits: 42-2-111 and 16-4-203(d) • Child support: 45 CFR 303.21

16. Subpoenas in Criminal Cases • Testimony • Typically, the Department does not file motions to quash for testimony in criminal cases • Instead, the DFS worker will raise the issue of confidentiality on the stand when questioned about the confidential information • If the court orders the worker to answer, that is a court order sufficient to protect the Department’s concerns • The analysis for the Department will depend on what type of information is sought

17. Subpoenas in Criminal Cases • State v. Hathaway, 2017 WY 92 • To even get an in camera review by the court, the Defendant must show: • The information sought is specific • Subpoena must ask for specific documents or types of documents • The information sought is constitutionally material • Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.

18. Subpoenas in Civil Cases • Wyo. Stat. Ann. § 14-3-214(h) requires that a court find good cause to release information from child abuse/neglect records in civil cases

19. Requests for Information without Subpoena • Certain persons may request access to certain DFS records through a field office’s district manager • SS-31 • APS-31 • But requests have to be for a specific purpose consistent with statute • Manager decides whether to grant request for information

20. DFS Information/Records Tip • If you are wanting DFS records for use in a civil or criminal case, the AG’s office is willing to help evaluate your request, including accepting service of a subpoena…just get in touch with us