Discovery…But Not the ‘Eureka’ Type

Discovery is nmagnifying-glass-1537023-300x225ot the first topic that comes to mind when parties meet with a family law attorney for the first time.  In fact, there is a good chance most litigants have no idea what discovery actually is.  Sure, anyone who watches any of the serialized crime dramas on TV has heard of a subpoena, but most people have no idea what they are why they are useful.

In a nutshell, discovery is the process of collection evidence, whether that evidence comes in the form of documents, statements, testimony, or information.  There are several types of discovery a party can issue.  Which method a party chooses depends on what type of evidence they are looking to obtain.  This blog will briefly describe the most common forms of discovery used in family law cases.

Demand for Production of Documents

Just as the name implies, this a request sent to the other party in the case requesting certain documents.  Typically, this includes bank/investment account statements, credit card statements, deeds to property, etc.

This is an inexpensive way to obtain documents from the other party which are necessary for your case.  It also provides you the opportunity to ask for many different types of documents in a single request.  In many cases, a well drafted Demand for Production of Documents will generate nearly all of the documents a party will need to prepare their case.

There is a downside.  You are asking the other party to your case to provide the documents.  If a party is determined to play “hide the ball” or did not keep accurate records, the documents you receive will likely be incomplete.

Subpoena

A subpoena is similar to a Demand for Documents in that it is a request to provide documents.  It differs in a number of ways though.  First, the subpoena is not sent to the other party, it is sent to whatever institution has custody of the documents.  For example, you can send a subpoena to Bank of America for a party’s bank statements for a period of time.   The upside with a subpoena is you are almost guaranteed to receive a complete response to your request.

The downside is subpoenas can be expensive (Banks charge you an hourly “research fee” and copy costs to respond to your subpoena).  Another downside is a subpoena is limited only to the institution it is served on.  If you have a case with multiple bank accounts at different banking institutions, you will need to send several subpoenas out. That can become expensive quickly.

Form Interrogatories:

Form interrogatories are a list of 21 questions created by the California Judicial Counsel that are applicable in nearly all family law cases.  The questions are contained on Form FL-145 (http://www.courts.ca.gov/documents/fl145.pdf) and seek answers to questions about a party’s income, personal history, tax returns, health, requests for reimbursements, etc.

Form interrogatories are issued early in the proceedings in nearly every case.  The reason is that the answers to the form interrogatories are an easy and inexpensive way to obtain information that will assist you and your attorney in developing a full discovery plan in your case.

Special Interrogatories

Special interrogatories, like form interrogatories, are questions posed to the other party in the case.  Unlike form interrogatories, special interrogatories are tailored to a specific case.  A party can ask any question of the other party, so long as it is relevant to the family law action and is not otherwise objectionable under the California Evidence Code.

For example, if there is a dispute about the date of separation, you may ask questions about when a party moved out of the residence, where their mail was delivered, whether the parties continued to share a bank account, if they ever visited the former family residence, etc.

Special interrogatories are useful in helping to focus the evidence in your case and to get an idea of what the other party’s theory of the case will be at trial.

Requests for Admissions:

Request for admissions are a discovery tool used to determine what facts a party agrees are true and what facts they believe are untrue.  Request for admissions can be a very powerful tool in focusing the facts of your case.  A well drafted request for admission can produce a wealth of helpful evidence. An example of a request for admissions is the best way to demonstrate.

  1. “Admit that you and Petitioner maintained a joint bank account with Bank of America after you moved out of the residence.”
  2. “If your answer to Request No. 1 was an admission, admit that your monthly wages were deposited in the joint bank account with Bank of America after you moved out of the residence.”

If the party admits to both of the requests, you know they agree with your version of the facts.  That is, it is uncontested that the parties maintained a joint bank account with Bank of America after the Respondent vacated the family residence and Respondent’s pay checks continued to be deposited into that account.  In a date of separation case, that is important information.

This list of discovery demands is not exhaustive.  There are other forms of discovery that can be useful in a family law case.  However, along with depositions, these are the most common forms a party will encounter.

It is important to point out that discovery is not only for cases that will go to trial.  Performing well thought out and complete discovery is on of the best ways to settle a case.  The attorneys at the Law Office of Nancy J. Bickford have the knowledge and experience to guide you through the discovery process in your family law case.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding discovery in family law cases. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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