The Discovery Process in Family Law

Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2nd ed.

© 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved

The Discovery Process in Family Law

Chapter 12



Discovery Tools

Paralegals will help prepare:– Interrogatories– Requests for the production of documents (and

things)– Requests for physical & mental examinations– Requests for admissions– Depositions



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



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



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



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.



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



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



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.



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



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



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



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



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.



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



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



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



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



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



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



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



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



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



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.



DIRECT EXAMINATION

CROSS-EXAMINATION

REDIRECT

Scope of Examination



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



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



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



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



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



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



The Financial Affidavit

Sworn statement enumerating assets:– Real property– Personal property

Cash Cars Furnishings Stocks, bonds, CDs Art, jewelry, collections, etc., with appraisals



The Financial Affidavit, cont.

Liabilities– Credit card balances– Student loans– Car loans– Mortgages– Court judgments

Income, earned & unearned



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



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

The Discovery Process in Family Law

Documents

Transcript of The Discovery Process in Family Law