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What is Discovery and Why is it Necessary?

By of Duff & Kronfeld, P.C. posted in Family Law on Thursday, March 13, 2014.

For those of you who have not met Sally and Henry (both fictional characters), from my last blog entry, these characters have been married for 12 years and have three young children. Henry is a partner in a prestigious D.C. law firm and Sally is a stay-at-home mom. Henry met an associate, Cassandra, at his law firm and decided to leave Sally for what he thinks will be a more exciting lifestyle. To pay for his new found freedom, Henry has begun diverting funds from joint accounts into accounts titled solely in his own name.

What is discovery?

Discovery is formal, court-enforced information-gathering conducted in the pre-trial phase of virtually every family law case. In circuit court, lawyers have the ability to use different methods of discovery. The most common are the following:

1. Interrogatories: These are written questions that I, as Sally’s counsel, will submit to Henry to answer, and which he must answer under oath. For example, we would ask Henry to list all of his bank accounts for the past three years, to include the name of each financial institution, the type of accounts, the account numbers, how the accounts are titled and the balances in each of the accounts. We are limited to 30 questions, including subparts. However, most courts are not hesitant to authorize the use of interrogatory questions which seem to allow for almost unlimited subparts, so long as they remain relevant to the issues in the case.

2. Document Production: These are compulsory requests to obtain certain documents from Henry. For example, I would request that Henry produce bank statements for all accounts that he has owned individually or jointly with any other person. Generally, we ask for documents going back three years prior to the separation. There are no limits to the amount of document requests we can request, so long as they are relevant to the issues.

3. Admissions: These are factual statements that we ask the other party to either admit or deny. For example, if I reviewed Henry’s Visa account and found a $2,000.00 purchase at Jared, I would ask him to admit or deny the following:

a) Admit or deny that on or about February 13, 2012, you purchased jewelry at Jared.

b) Admit or deny that on or about February 13, 2012, you purchased jewelry at Jared in the amount of $2,000.00.

c) Admit or deny that you used your visa account to purchase the jewelry at Jared on or about February 13, 2012.

d) Admit or deny that you purchased the jewelry at Jared on or about February 13, 2012, as a gift to Cassandra.

If Henry admits a request, then he cannot later deny it, and the court accepts it as true. If Henry denies a statement that is in fact true, and Sally has to pay attorney fees and costs to prove it is true, then Henry may have to reimburse some or all of those expenses.

There is no limit to the number of statements we can ask Henry to Admit, but it must be a reasonable number. Asking for Henry to respond to 300 requests will probably not be seen as very reasonable to the Court.

The above discovery tools are limited to the parties. We cannot send interrogatories or requests for admissions to Cassandra or to Henry’s employer. However, the following two discovery methods can be used for third parties.

4. Depositions: Depositions allow the attorney to summon a party or any other individual with potentially relevant knowledge and ask them questions. A deposition normally takes place in an attorney’s office. The individual summoned is placed under oath and a court reporter makes a record of the entire proceeding. Some attorneys also have videographers at the deposition. Besides Henry, I would want to depose Cassandra. Here we have to be careful, because if Cassandra lives and works in Washington, D.C., I cannot subpoena her to a deposition. My subpoena power is limited to the Commonwealth of Virginia. If Cassandra’s deposition is vital, there are ways to request assistance from a D.C. court in issuing a subpoena to Cassandra in D.C. In addition to Cassandra, I may want to depose one of the managing partners at the law firm and depose any experts that Henry identifies.

5. Subpoenas: A Subpoena duces tecum requests documents from individuals or institutions that are located or do business in Virginia. For example, after examining the bank statements Henry provided and reviewing income tax returns, if I find out that Henry has been less than forthcoming with the bank accounts he owns I will subpoena his banks, requiring them to provide me with his bank statements. If Henry claims that he only has SunTrust accounts but I find bank wires going to a Bank of America account, and I can see that Henry has reported interest income from Bank of America, it is very probable that Henry has an account at Bank of America that he did not disclose. A subpoena duces tecum will make the bank, not Henry, produce those bank statements so he has much less opportunity to hide the truth.

Judge Jane P. Delbridge (Ret.) motto was that, “A Judge’s ruling is only as good as the information presented…”

The information we need to present to the Court is collected during the discovery phase of the case. Representing Sally, I need to present evidence on numerous issues. Stay tuned for my next blog which I will discuss how the discovery is used to present evidence at trial.

Just remember: There is life after divorce! If you have any questions regarding your specific circumstance, please contact me at 703-591-7475 for a 30-minute complimentary telephone consultation.

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