Tools Attorneys use in the Discovery Process

1. Interrogatories: Written questions that must be answered under oath.
2. Requests for Production: Asking for specific documents such as financial statements, property deeds, and retirement account statements.
3. Depositions: Oral questioning under oath, usually recorded by a court reporter.
4. Requests for Admission: Asking the other party to admit or deny specific facts.
5. Subpoenas: Ordering third parties to produce documents or testify.

     A. Interrogatories

Interrogatories are written questions served on the other party — both parties will answer interrogatories. Each party must answer the questions truthfully, in writing, and under oath. As a very useful discovery tool, Interrogatories are coupled with Depositions. The primary restriction being that, unlike Depositions, only the parties in the Family Law Case are served with Interrogatories.

Interrogatories help the parties focus on factual information and also help establish the validity of documents. These questions are tailored to ask for very specific facts. This is to avoid overly vague or incomplete answers. The Interrogatories are helpful in collecting each party’s statistical information, financial details, employment history and income, as well as criminal arrest or conviction details. Besides the primary function of finding out information, the answers to the Interrogatories can be read in court as “Admissions” by the answering party.

There are two types of Interrogatories: Uniform and Non-Uniform. The Uniform Interrogatories are in court-approved form, for general use in any case. Questions specific to your case, and outside the scope of the standard form, are Non-Uniform Interrogatories. The parties send one another these written questions to be answered. A party may formally object to an Interrogatory if, for example, the question is asking for undiscoverable “privileged” information.

     B. Request for Production

The Requests for Production of documents and things, and entry upon land for inspection and other purposes, is a very powerful Discovery tool. Essentially, requests can be made for anything in the possession or control of a party upon whom the request is made. A Request for Production allows one party to request that the opposing party produce tangible evidence for the purpose of inspection and copying, and much more. The request for production may permit the requesting party to enter the property to inspect the premises. Again, the party receiving the request may file an appropriate Objection if, for example, the documents requested are not relevant to the case or are protected by “privilege.”

Often a Request for Production will go hand-in-hand with Interrogatories. For example, in conjunction with an Interrogatory about bank account balances, a party might request production of all monthly bank account statements over a specific time period. The Request for Production is an effective method of obtaining detailed financial information and can be extremely useful in gathering data about pensions and retirement benefits, life insurance policies, and so on. The documents and things being requested must be designated in the request, but can include existing writings, drawings, graphs, charts, photographs, phone records and other data compilations. Although there is no technical limit on the number of documents or things that can be requested, the other party is entitled to raise Objections about any unduly burdensome Discovery Request.

     C. Deposition

In a Deposition, the witness is required to appear at a specified location for the purpose of providing information regarding some matter in the litigation. Unlike the Interrogatory, which may only be Served on a party to the case, the Deposition may also be used for third parties. A Deposition can be done upon written questions or orally, by telephone, or in person. Regardless of whether the deposed witness is a party or a third-party, the Deposition may be introduced at Trial to impeach that witness with any different, contradictory, or inconsistent statements that he or she made. Deposition answers may also be “admitted into evidence” when the parties have agreed that a witness will not be called to the actual hearing. This often happens when the parties are accommodating a busy professional such as a physician, psychologist, or other expert witness. 

     D. Request for Admission

The Request for Admission of facts is also Served on the opposing party in the Family Law Case. As a discovery tool, the Request for Admission sets forth statements that the receiving party must admit, deny, or object to. The party responding to the Request for Admission has to make reasonable inquiries into the information that is known to or readily obtainable by him or her. When the receiving party does not respond to a Request for Admission — that is, he or she doesn’t admit, doesn’t deny, and doesn’t object — then the statement is “deemed admitted.” Whenever a fact or statement is admitted to, it may be used as evidence in the Trial.

     E. Subpoenas

Subpoenas are Court Orders which can require either Testimony, or Production of Documents.  When Testimony is Ordered by Subpoena, this is offered by way of Deposition.  When actual documents are Ordered, this is usually done with a “Subpoena Duces Tecum.”  Cantor Law Group’s Family Law Attorneys are highly skilled in both having Subpoenas issued, and in properly responding to items sought in the opposing party’s Subpoenas.

Remember: While the Discovery rules employ tools aimed at gathering broad information, there are some important Limitations to Discovery:

1. 1. Privileged Information. A party can’t ask for privileged information from the other party.
   2. Excessive Requests. A party can’t inundate the opposing party with discovery requests.
   3. Embarrassment or Harassment. A party can’t use discovery to embarrass or harass the other party.
   4. Relevancy. A party can’t ask for information that isn’t truly relevant to the case.