Discovery is simply the process of discovering assets of the marriage, or confirming assets of the marriage, including, but not limited to, income, retirement accounts, checking and savings, real property, personal property. There is a time frame to conduct discovery and at times to save money, litigants perform informal discovery.
Discovery can also allow litigants to understand the other parties case in a more clear manner by seeing documents he or she intend on using at trial from police reports, to medical records, to Facebook posts, Instagram, and phone records, many documents are discoverable. The process of obtaining this information permits the development of the testimony and evidence that will be required at the trial of your case.
This process enables us to obtain information about your spouse’s case, including his or her view of the facts, list of witnesses he or she may use, and copies of documents necessary to prove or disprove certain facts or allegations.
What Is A Deposition?
Depositions are simply the procedure of asking questions of the opposing party or a witness in the presence of his or her attorney. The procedure is done under oath and is recorded by a court reporter who later types the questions and answers.
There are several types of depositions:
One is simply to obtain facts needed in a particular case and in which the attorney may ask almost anything he wants to know about the other party. There are rules that must be followed and privileges that exist like psychiatric or attorney/client.
Another type is a deposition to preserve testimony for trial in a situation where a witness such as a doctor will not be available for trial, and his testimony must be recorded and presented to the court in writing. This deposition must be conducted the same as if the parties were in the actual trial of the case, and only relevant questions may be asked of the person whose deposition is being taken. All questions are asked by the attorneys, and the opposing attorney may cross-examine a party or a witness if he so desires.
In domestic cases involving property and children, it is sometimes necessary for each spouse to take the deposition of the other spouse. This is accomplished by your attorney simply calling the opposing attorney and requesting a deposition and scheduling a time convenient to all parties. If the opposing party does not have an attorney, or if the attorney is not cooperating in the scheduling of the deposition, then we may send a Notice to Take Deposition and serve it on him or her and/or his or her attorney. This notice simply notifies him or her to appear at a time and place set for the taking of his or her deposition.
Usually, both parties’ depositions are taken on the same day, one after the other. If the party or witness fails to appear, motions can be filed with the court to obtain his or her testimony, and these will be explained to you if at any time in your case this becomes necessary. Your attorney will meet with you prior to the deposition to prepare you and to answer any questions you may have.
If we are taking your spouse’s or a witness’ deposition, please prepare a list of items you think will be important for us to cover and include matters which we may not be aware of about your spouse or the witness. Please give this information to your attorney or paralegal prior to the date of the deposition.
Production Of Documents
A party or witness may be required to produce certain records such as copies of deeds, income tax returns, business records, income records, title certificates, etc. This helps the attorney to acquire all of the information necessary to fully represent you regarding financial matters such as the effect of your spouse’s income on his or her ability to pay child support, alimony, debts of a marriage, etc.
This is done by serving upon the opposing party or a witness a Request for Production of Documents. It must be served on the person to whom it is addressed and which must give them reasonable time to obtain and produce these documents at a given time and place for copying. Usually, it is necessary to serve a notice on the opposing party in all domestic cases where any property, children, assets or debts, or any other issues relating to the spouse’s income, debts, assets, etc., are involved.
It may sometimes be necessary to require that documents be produced by persons not a party to the divorce action including such documents as employment records, medical records, etc. If the opposing spouse does not keep any records, then it is necessary to obtain them from other sources such as his or her employer, bank, pharmacy, dentist psychiatrist, psychologist, etc.
You will probably be asked by your spouse to produce all documents in your possession regarding income, property acquired during the marriage, titles to any automobiles you may own, debts incurred during the marriage, and bank accounts including checking and savings, etc. Be prepared for this by gathering all the documents you think may be important at the beginning of your action and bring them to our office so that we may keep them or make copies of them.
Again, as with depositions, there are legal procedures to follow in case a party fails to produce any documents requested or fails to respond to a request in writing. This will be explained to you if this procedure becomes necessary in your case. The discovery process is time-consuming and expensive. Many spouses use this process to try to intimate or harass their spouse. Should it be necessary to file a Motion for Protective Order.
Interrogatories are simply written questions served upon the opposing party. They are designed to obtain information about the spouse or find the location or name of any person in possession of discoverable information or to discover names of witnesses, etc. Sometimes interrogatories can be used when a party cannot afford the costs of a deposition, but, usually, in cases where there are several issues, a deposition is better and covers more information since the number of interrogatories one can use is limited by law to fifty.
In addition, attorneys will often raise objections to interrogatories, whereas depositions solicit a more spontaneous response. Our usual procedure is to use a set of general interrogatories at the beginning of a domestic case in order to provide background information for the deposition.
If interrogatories are served upon you, we are required to answer them within 30 days. We will forward a copy to you with instructions on how to answer them. Some of the questions you will be able to answer, and some of them have to be answered with the assistance of our office. You are required by law to sign an affidavit swearing that your answers are true and correct, and this must be attached to your answers. When you receive your copy, please be sure to get the information back to our office by the time set forth in our letter to you.