PLST 200 Reading - 2 pages -Due -24hrs

The Discovery Plan

Early in a case, a discovery strategy will be established. It will identify the kinds of information needed, the techniques to be utilized (both formal and informal), the sequencing of efforts, the assignment of tasks, and the projected cost. The plan may need to be modified after discussion with the client—particularly if there are financial constraints or if new informational needs develop. As difficult as it is to explain to clients, consideration needs to be given to identifying both the strengths and the weaknesses of each of the parties and their respective positions. Thorough research and preparation are essential.

In a well-orchestrated discovery plan, the various methods of gathering information work together in a case. For example, informal discovery initiatives (use of a private investigator, client conversations with friends, and a review of material stored on the “family computer” and on social networking sites) may reveal that a husband who claims he cannot pay child or spousal support due to an injury is in fact leading a very active and social lifestyle. A Financial Affidavit may indicate that he is paying for a fitness club membership and has no medical expenses. Interrogatories may be served requesting information about his credit cards, the online sites he visits, and memberships he holds in clubs. Requests for production may yield credit card statements that document substantial “entertainment” expenses, or hiking and other vacations he has taken. Depositions may then be used to question the party about all of the above and expose contradictions and outright deception.

Depending on its nature and extent, discovery can be very expensive, but a failure to conduct adequate discovery when it is warranted can be disastrous. In some instances, the family law team may fail to achieve the best possible result for the client. In the most egregious cases, a failure to conduct or produce discovery may result in a malpractice action against an attorney. (See Paralegal Application 6.1 .) In many cases, one of the parties has significantly more resources than the other and is better positioned to conduct discovery. In such situations, the court may entertain a motion for attorneys’ fees to allow the disadvantaged party to pursue or defend the action in order to avoid being forced to accept a settlement based on insufficient information.

Paralegal Practice Tip

Although students commonly learn about discovery in civil litigation courses, it is important to understand that, in many jurisdictions, governing rules may vary in the domestic relations context. It is also useful to learn how various formal and informal information-gathering methods are utilized in family law cases to facilitate settlement and provide a framework for trial preparation, if necessary.

Paralegal Application 6.1 What if the Client Will Not Authorize Discovery?

In some circumstances, after examining various documents, the attorney may tell the client that it appears the other party has removed funds from certain accounts and is “hiding” them. Further discovery could be conducted to trace and locate those funds, but not without expense. Even though discovery might well result in a significantly more favorable property settlement in the long run, the client may say that he or she simply cannot afford additional legal costs and will insist that no further discovery be conducted.

In such situations, it is wise for the attorney to have the paralegal draft a letter to the client reiterating the advice given and its potential benefits and costs. The letter should confirm that, notwithstanding that advice, the client has explicitly directed the attorney not to conduct further discovery. To avoid any misunderstanding, the client should be advised that the letter is forthcoming and that he or she will be asked to provide a written acknowledgment of receipt. Such a letter, promptly sent by certified mail, documenting that the advice was given and specifically declined, helps defeat a potential later claim by the client that he or she received inadequate representation to his or her financial detriment.

The Paralegal’s Role

Paralegals are often charged with considerable responsibility in the information-gathering effort. The nature and extent of an individual paralegal’s role is largely a function of his or her level of expertise. For example, an experienced paralegal may be asked to help develop a discovery plan and draft complex, sophisticated discovery requests. An entry-level paralegal is more likely to be asked to check “Blue Book” values, draft motions to compel, and prepare relatively standard discovery requests, such as requests for production of employment contracts, insurance policies, or bank account statements.

One of the most important tasks performed by paralegals is the marking of discovery deadlines on all appropriate calendars. This task includes critical deadlines prescribed by rules governing the various forms of discovery, dates of scheduled court appearances, meetings, and depositions, etc., and self-imposed deadlines for completion of discovery-related tasks, allowing sufficient time for review and revision.

Informal Discovery

Informal discovery refers to lawful information-gathering efforts not governed by the procedural rules restricting formal discovery methods. Clients frequently engage in it in anticipation of a divorce or other legal actions. For members of the family law team, informal discovery begins with the first client contact and may continue throughout a case. Initial investigative efforts often shape the theory of a case and the action to be filed—for instance, whether a fault or no-fault Complaint for Divorce should be filed in states where both options are available.

Even if it is not all admissible as evidence at trial, information gathered through informal discovery efforts such as the following often provides leverage in negotiations:

· A paralegal consults online resources to establish the value of various marital assets such as boats and motor vehicles.

· A client inventories content stored on the “family” computer and makes copies of relevant documents.

· A private investigator is retained and documents that a party is performing work “under the table” or is carrying on an extramarital affair.

· Potential witnesses, such as coaches, counselors, school nurses, and teachers, are interviewed informally (if possible) about the impact of a parent’s behavior on a child.

· A forensic accountant is retained and prepares a “lifestyle analysis” to illustrate that a party’s expenses far exceed his or her reported income.

· For a modest fee, a national firm provided with a party’s Social Security number produces a report on topics such as ownership of real estate, vehicles, and interests in business entities.

· The client or a member of the family law team browses sites such as Facebook and Match.com to search for legally accessible documentation of a party’s conduct and false representations regarding marital status.

Paralegal Practice Tip

A member of the family law team should check the publicly accessible content of the client’s online activity to protect against potential damage to the case down the road.

· The client completes a comprehensive questionnaire providing information about a wide range of topics such as the history of the parties’ relationship; the nature and value of assets owned by either or both of the parties; any children of the marriage or of either party; and medical, employment, and educational histories of the parties. (See Paralegal Application 6.2 .)

· To avoid the costs of formal discovery, the parties agree to voluntarily work cooperatively to exchange information and make joint requests to mortgage companies, banks, pension plan administrators, and other third parties for records not available online. This approach obviously works best in a collaborative environment in which the parties basically trust each other and there is a shared commitment to reaching a mutually agreed-upon settlement without litigation.

Paralegal Practice Tip

An example of a Comprehensive Client Questionnaire is available at www.pearsonhighered.com/careersresources/  in the website material related to Chapter 5 of this text under Resources.

Paralegal Application 6.2 The Client as a Resource

When a client first seeks representation in a divorce action, he or she customarily is asked to respond to a Comprehensive Client Questionnaire. In addition, even before an action is filed, many attorneys ask clients to perform some initial informal discovery. The client may be asked to:

· Photograph the contents of the marital residence (house or apartment) with particular attention to any potentially valuable items such as jewelry, antiques, art work, and gun collections.

· Keep a journal concerning such topics as parenting situations reflecting the particular strengths or weaknesses of each parent, unexplained phone calls and absences from the home, incidents of abuse of any kind and work being performed “under the table.”

· Locate and make copies of important documents such as deeds, titles, registrations, bank account statements, credit card statements, travel materials (e.g., airline tickets and hotel invoices), employment records, brokerage account statements, state and federal tax returns, and mortgage applications.

· Make copies of relevant electronic documents such as e-mails and financial records if legally accessible.

· Make a list of the names, addresses, and telephone numbers of potential lay witnesses for the client and for the other party, and identify the matters about which they might testify.

· Make a list of the names, addresses, and contact numbers of any professionals, such as physicians, therapists, accountants, financial advisors, and appraisers, consulted by either or both of the parties for their benefit or the benefit of their children.

In some jurisdictions, once a Complaint is filed and served and before formal discovery methods may be utilized, the parties are required to make mandatory self-disclosure of certain information within a specified period. (See Paralegal Application 6.3 .) In most instances, these requirements help reduce discovery costs. If a party fails to make the required disclosure within the mandatory period, the other party’s attorney will usually contact the party (or the attorney, if she or he is represented) and reach an agreement with respect to what is needed and by when. If informal efforts are unsuccessful, a motion to compel compliance may be filed, and related costs may be charged to the noncompliant party by the court.

Mandatory self-disclosure

material specified by statute or court rule that each party in a particular legal action must provide to the other party within a certain period after filing and service of a summons and complaint

Paralegal Application 6.3 Mandatory Self-Disclosure

Mandatory self-disclosure requirements typically provide that absent agreement of the parties or order of the court, each party is required to deliver to the other documents such as the following within a certain period after service of the summons in an action for divorce or separate support (e.g., forty-five days): 1

· federal and state tax returns and supporting documentation for the past three years (individual, limited-partnership, and privately held corporate returns)

· bank statements for the prior three years for any bank accounts held in the name of the party or jointly with another party for the benefit of either party or the parties’ minor children

· the four most recent pay stubs from each employer for whom the party works

· documentation of the cost and nature of available health insurance coverage

· statements for the past three years for any securities, stocks, bonds, notes or obligations, certificates of deposit (for the benefit of either party or the minor children), 401(k), IRA, and pension plans (for all accounts listed on the party’s financial statement)

· copies of any loan or mortgage applications filed within the past three years

· copies of any financial statements or statements of assets and liabilities prepared within the last three years

Formal Discovery

After a Complaint has been filed and served, formal discovery can be initiated. The five basic formal discovery methods are:

1. Interrogatories

2. Depositions

3. Requests for Admissions

4. Requests for Production of Documents or Things or Entry Upon Land

5. Requests for Physical or Mental Examinations

Each of these methods is described in the following narrative, paralegal applications, and exhibits. The role of the paralegal is emphasized, given its potential importance in the discovery process.

Although the basic principles remain the same, the exact names for each of the discovery methods and the applicable procedural requirements vary from state to state. Some jurisdictions have special discovery rules and procedures tailored to family law/domestic relations matters. Others apply the same rules as are used in civil matters generally. Still others require reference to multiple sets of rules. For example, a Request for Production of Documents may be called a Demand for Documents or a Request for Production of Documents and Entry Upon Land, or it may be folded into a set of Interrogatories. In some states formal discovery may only be conducted by stipulation or court order. In others, it may not be necessary to file any discovery documents with the court or to file only a certain type such as a Request for Admissions (in New Hampshire, for example) or a Request for a Physical or Mental Examination . In some states, such as Tennessee, the rules may vary from county to county. Because of these variations, it is critically important for the paralegal to be familiar with applicable terminology and rules governing discovery in general and domestic relations matters in particular.

Request for Admissions

a discovery method in which a party makes written requests to an opposing party, calling for an admission or denial of specific facts at issue or verification or denial of the genuineness of documents relevant to the case

Request for Physical or Mental Examination

a method of discovery in which one party requests that the court order the other party (or, in some instances, a third party) to submit to a physical or mental examination

In any given case, all, none, or some formal discovery methods will be utilized, depending on the nature and complexity of the case, how hotly it is contested, and the financial resources of the parties. Information obtained through methods such as interrogatories, depositions, and requests for admissions is provided by the respondent under oath and is potentially very helpful to the requesting party. Customarily, states impose a duty to supplement responses if circumstances change, new information comes to light, or errors are discovered. The sequence in which formal discovery methods are used may vary, but interrogatories are most commonly propounded first.

Interrogatories

Interrogatories are written requests for information sent by a party to an opposing party in a lawsuit. Although states frequently provide standardized forms online, particularly for parties proceeding pro se, use of those forms is customarily not mandatory. Caution needs to be exercised when using generic sets of interrogatories found in form books or online or versions designed to meet the objectives in other cases handled by the office. Although they may provide a reference or starting point, they must be tailored to the client’s case. Failure to do so may give rise to accusations of harassment or to incurring of unnecessary costs.

Interrogatories

a method of discovery in which one party submits a series of written questions to an opposing party to be responded to in writing within a certain period of time under pain and penalty of perjury

Interrogatories must be responded to in writing under oath within a prescribed period, usually thirty days. The period for responding may be extended under the applicable rules of procedure if the interrogatories are served by mail. Jurisdictional rules of procedure typically provide when they may be served and limit the total number allowed (commonly fifty or fewer, not including subparts) absent permission of the court or agreement of the parties. They can usually be served all at once or in several sets, provided the total allowable limit is not exceeded. Many attorneys prefer to serve an initial set of fewer than the maximum number and hold the balance in reserve in case information is obtained warranting additional questions that could not have been anticipated. The primary strengths and weaknesses of interrogatories along with those of other formal discovery methods are described later in this chapter in Exhibit 6.3 .

Paralegal Practice Tip

An example of a standardized first set of interrogatories in a marital dissolution action can be found at www.flcourts.org (Form 12.930). A sample of the kinds of interrogatories that might be served in a fault case involving an allegation of adultery is provided at www.pearsonhighered.com/carreersresources in the resource website material for Chapter 6 of this text under Resources.

In order to produce useful information, interrogatories need to be clear, concise, and appropriate to the facts of the specific case. For example, a question such as “Do you have any retirement income” asked of a thirty-year-old working party will yield little useful information. The question should request detailed information with respect to any and all forms of retirement programs in which the respondent is participating. If the respondent is unaware of specifics, he or she is obligated to ascertain them prior to responding and to supplement responses later, if warranted.

Interrogatories commonly request information from the opposing party with respect to the following:

· current and former address(es), age, prior marriages, and children

· educational background, training, and job skills

· past and present employment as well as future plans including efforts to seek employment

· real property owned individually or jointly with others before and during the marriage

· the nature and value of personal property, such as automobiles, jewelry, and collections (guns, artwork, collectibles, etc.), owned before and during the marriage

· how a party spends his or her leisure time (personal and social life and membership in any clubs, civic organizations, etc.)

· the other party’s spending habits (what he or she spends money on; where he or she shops/dines; whether he or she pays by cash or credit, etc.)

· income from all sources

· the responding party’s investments, business interests, retirement accounts, interests in any trusts, anticipated inheritances, etc.

· bank accounts, safe deposit boxes, etc.

· financial liabilities

· the parties’ respective strengths and weaknesses as parents, if applicable

· the opposing party’s physical and mental health, treatment programs, physicians, medications, etc.

· the history of the marriage, such as prior separations, counseling sought and obtained, conduct of the parties during the marriage, and nature of changes in the parties’ relationship during the marriage

· the history of the spouses’ relationship prior to the marriage, such as periods of cohabitation, entry into a domestic partnership or civil union, economic interdependence, and agreements with respect to children

In this age of technology, interrogatories are also likely to seek information about topics such as the following:

· the location(s) where the respondent stores business and financial records, including hard drives and/or other electronic storage devices

· any and all social and professional networking sites utilized during the past two years

· any and all electronic mail accounts through which the party has sent or received mail during a certain period

· any and all instant messaging services subscribed to during a specified period

· any and all online dating services subscribed to during the past two years

· whether the party has formatted or destroyed any physical media storage device on any computer he or she has used during a specific period

Paralegal Application 6.4 Interrogatories—The Potential Role of the Paralegal

The paralegal must be familiar with the procedural rules in the jurisdiction governing each form of discovery in the family law context and with the established role of the paralegal in the firm where he or she is employed. All discovery-related tasks are carried out under the direction and supervision of an attorney. The following reflects a common, but not necessarily universal, approach with respect to interrogatories.

If serving interrogatories

· Identify information to be gathered via interrogatories.

· Draft proposed interrogatories for review by the client and the supervising attorney.

· Finalize interrogatories for review, approval, and signature(s) as required and then, if directed to do so, serve on the opposing party in the manner provided in local rules, with a copy to the client. A limited number of jurisdictions require that interrogatories also be filed with the court or that the parties file a notice of filing interrogatories and a notice of responding to and/or objecting to interrogatories.

· When answers are received, review them for completeness and, if incomplete, draft a letter for the supervising attorney’s signature requesting that the responses be supplemented.

· If the responding party fails to respond or to supplement his or her answers on request, draft a motion to compel responses for review and possible filing.

· Summarize the responses and recommend follow-up measures, if warranted, such as questions for a second set of interrogatories or deposition questions.

If responding to interrogatories

· Mark receipt and return dates on all appropriate calendars and also schedule draft and review dates for responses.

· Give a copy to the supervising attorney, who will make the legal determination as to whether any of the interrogatories call for privileged information and, thus, an objection rather than an answer. If appropriate, draft a motion for a protective order .

· Draft a letter to the client for the supervisor’s signature explaining the process and enclose a copy of the interrogatories for review and preparation of initial responses within an appropriate time frame. The letter should also remind the client that all answers must be true and accurate to the best of his or her knowledge, as they are provided under oath.

· Schedule a meeting for the client with the paralegal and/or the attorney, as appropriate, to review draft responses the client provides.

· Delete nonresponsive answers, correct errors, complete incomplete responses, and note objections identified by the supervising attorney.

· If needed, draft a letter to opposing counsel requesting additional time to respond. If the request is denied, draft a motion asking the court to grant the requested extension in response time.

· Prepare final responses expressed in the light most favorable to the client, as long as the factual content is accurate and based on information provided by the client.

· Schedule a meeting in which the supervisor and the client review final responses and affix signatures in the required form.

· Serve the responses on the opposing party (and with the court, if required in the jurisdiction) along with a notice of responding to and/or objecting to interrogatories, if necessary.

Depositions

In a deposition , one party asks the other party, or a third person who has or may have information and/or documents pertaining to the case, a series of questions to be answered under oath. The person being questioned is called the deponent . The responses given are recorded verbatim by a court reporter or another individual licensed to record testimony. In some jurisdictions, depositions may be audio- or videotaped according to procedural rules.

Deposition

a method of pretrial discovery in which one party questions the other party or a third person under oath; responses to oral or written questions are reduced to writing for possible later use in a court proceeding

Deponent

the individual who is asked to respond under oath to questions asked in a deposition

If the deponent is a party, a Notice of Deposition is sent to the deponent or his or her attorney, if represented, specifying the date, time, and location of the deposition. As a courtesy and convenience, counsel will usually agree on a date, time, and place for the deposition in advance of notice to ensure the availability of counsel and the parties. A party deponent is not required to bring any documents to a deposition unless specifically requested to do so. Such a request usually is accomplished by combining a Notice of Deposition with a Request for Production of Documents. Even if deponents fail to bring requested documents to a deposition, their memories can be “refreshed” by showing them a particular document and asking if the document refreshes their memory about the topic of a question.

Notice of Deposition

the notification sent to an opponent (or his or her attorney, if represented) of an intention to depose him or her at a certain date, place, and time

If the deponent is a third-party witness, such as an employer, the third party must be served with notice of the deposition by subpoena . A subpoena is a document signed by an officer of the court that requires the person who receives it to appear at the date, time, and place indicated, under penalty of law. Blank subpoenas can generally be obtained from the court and can be filled in with appropriate information as the need arises. They are then returned to the court to be issued. If it is requested that the deponent bring certain documents to the deposition, the subpoena is called a subpoena duces tecum . Sometimes the subpoena will specify that it can be satisfied by delivery of the requested document(s) to the requesting attorney’s office within a certain period of time, and then the actual deposition need not take place. In most, if not all, jurisdictions, third-party witnesses must be reimbursed for their related travel expenses.

Paralegal Practice Tip

In cases involving complex, large, and diverse marital assets or thorny custody and visitation issues, it may be necessary to schedule one or more “deposition days,” during which a series of potential witnesses are deposed. This approach to scheduling is more efficient, convenient, and cost-effective for both parties and counsel than consuming several days over a more extended period.

Subpoena

[Latin: bring with you] a document ordering a witness to appear and provide testimony in a legal proceeding, such as a deposition, court hearing, or trial

Subpoena duces tecum

a subpoena ordering a witness to appear in a legal proceeding such as a deposition, court hearing, or trial and to bring with him or her specified documents, records, or things

Depositions usually take place in an attorney’s office but may be scheduled at other mutually convenient sites, particularly if the deponent is located in another state. The paralegal should be alert to the rules governing a situation in which a subpoena is to be served in another state. A letter of request (usually called letters rogatory ) is a document a court in one state issues to a court in another state requesting that the “foreign” court serve process on an individual or corporation within the foreign jurisdiction and return the proof of service for use in the pending case.

Letters rogatory

documents issued by a court in one state to a court in another state requesting that the “foreign” court serve process on an individual within the foreign jurisdiction

At the beginning of a deposition, the deponent is sworn in and promises to answer truthfully and to the best of his or her ability. Questions are usually asked orally (a deposition upon oral examination) but may be presented in written form. Counsel for the deponent has a limited role in the deposition and, depending on the jurisdiction, is usually restricted to clarifying information, registering objections, and indicating omissions to the deponent. The deponent customarily cannot consult with counsel prior to answering questions.

Because of the costs associated with a deposition, once noticed, counsel for the parties may discuss the nature of the information sought, and the deponent may agree to voluntarily provide it without the need for the actual deposition. Although this happens occasionally, depositions are often designed to serve multiple purposes, such as observing the demeanor of the deponent when questioned under oath, assessing his or her credibility, creating a record that can be used at trial to impeach the deponent’s testimony, and “fishing” for additional useful information. In such cases, depositions are unlikely to be canceled.

Paralegal Practice Tip

Attorneys conducting depositions need to maintain a delicate balance between unethical questioning designed to serve an improper purpose (such as harassing or intimidating the deponent) and strategic questioning conducted in the good-faith belief it will lead to admissible evidence. (See Exhibit 6.1 .)

Exhibit 6.1 Sample Deposition Questions

The following questions are presented as a sampling of the kinds of questions that may be asked at depositions. One of the strengths of depositions as a discovery technique is that questions may be modified or expanded as responses lead to new areas worthy of pursuit.

1. Where are you presently employed?

2. What is your current salary?

3. Do you receive any additional compensation such as bonuses, tips, or stock incentives?

4. Does your employer reimburse any of your expenses, such as parking, meals, or travel?

5. With respect to the marital residence, what do you estimate to be its present value?

6. Are there any mortgages or other liens on the property?

7. What was the purchase price for this property?

8. What was the amount of the down payment?

9. What was the source of funds for the down payment?

10. From what source of funds has the mortgage been paid during the marriage?

11. Do you presently have any credit card debt?

12. Is there a name on any of your credit card accounts other than your own?

13. I want to show you Exhibit 2. Do you recognize this credit card statement? Would you please identify the Exhibit for the record?

14. Let’s look at some of the individual items on this statement, starting with the $3,567 charge at the Casino Royale….

15. Page 2 of the statement indicates a charge of $715 for a “bracelet” purchased at Shreve, Crump, and High. For whom was this bracelet purchased?

16. Let’s shift gears for a moment and look at your individual tax return for the 2014 tax year. Would you please identify this return for the record?

17. Calling your attention to Schedule B, do you see any interest or dividend income listed there?

18. I have here a Financial Statement dated April 1, 2014, signed by you and filed with the court. Would you please identify this Statement for the record and verify that it was signed by you?

19. Looking at the statement, can you tell us where your interest- and dividend-producing assets appear?

20. What computers do you use at home and work, including desktops and laptops?

21. With whom do you share use of any of those devices?

22. Do you know of any other computers besides those you have already identified that contain information about any of the issues in this case?

23. Do you have access to the Internet?

24. What sites have you visited in the last six months relating to issues in this case?

25. What devices do you use to electronically store information?

Paralegal Application 6.5 Depositions—The Potential Role of the Paralegal

If taking the deposition

· Make recommendations to the supervisor regarding witnesses who should be deposed.

· Prepare a notice of intent to take deposition if the person to be deposed is a party or a subpoena or subpoena duces tecum if the deponent is a nonparty.

· Arrange for service of the subpoena, if directed to do so, and later confirm that service has, in fact, been made. If the deponent is a party, serve notice on opposing counsel or the party directly if he or she is not represented.

· Draft recommended deposition questions.

·

· Organize information and documents, such as responses to interrogatories, witness statements, bank records, and credit card statements, which will be useful and/or referenced at the deposition. To the extent possible, the material should be organized in the order in which it will be addressed in the deposition.

· If the deponent previously was required to produce documents, review them for compliance with the request.

· If items are to be presented as exhibits at the deposition, they should ideally be marked by the reporter in advance of the start of the deposition. The supervising attorney will most likely want to have at least four parallel sets of documents available: one clean copy to show to the deponent, one for the opponent’s attorney, one marked up for personal use, and a fourth to give to the reporter and have admitted as an exhibit.

· If directed by your supervisor, attend the deposition, listen carefully, take notes, and be prepared to assist the attorney with locating any needed documents or suggesting additional follow-up questions.

· Following the deposition, review the transcript (audiotape or videotape), prepare a summary (usually called a deposition digest), and make recommendations for follow-up.

· Arrange for any required payment to the reporter and to third-party deponents for travel expenses.

If defending the deposition

· If the client is responding to a subpoena duces tecum and there is an objection to the requested production, draft a motion for a protective order and, if there is no objection, organize the document(s) he or she is asked to produce for review by the attorney.

· If the client being deposed is a party, describe the process and assist the attorney in anticipating likely questions and preparing the client for questioning. Some attorneys choose to conduct mock depositions with their clients to familiarize them with the process and the types of questions likely to be asked. The sessions can also be used to identify and address potential weaknesses in the deponent’s performance. It may become apparent that some clients will need help developing strategies for dealing with various styles of questioning.

· Attend the deposition, listen carefully, take notes, and be prepared to assist the attorney with locating any documents as appropriate or suggesting clarifications, gaps, or errors in responses.

· Following the deposition, request a copy of the transcript, review it for accuracy, and correct mistakes as directed by the attorney in a manner consistent with applicable rules.

· Prepare a summary and recommendations for any necessary follow-up including the supplementing of responses if appropriate.

Requests for Admissions

A Request for Admission is a written request to an opposing party calling for an admission or denial of a specific fact at issue or verification or denial of the genuineness of a document relevant to the case. Unlike interrogatories, which are presented in the form of questions, requests for admission (or requests to admit, as they are called in some jurisdictions) are presented as statements of fact. They are used to confirm rather than collect information. (See Exhibit 6.2 .)

Paralegal Practice Tip

An example of a standardized Request for Admission form can be found at www.courtinfo.ca.gov/forms (Forms and Rules/Category-Discovery/Disc 020).

Responses to requests are customarily short and include the following potential options:

· Admit the matter.

· Deny the matter.

· Indicate lack of sufficient knowledge to admit or deny the matter.

· State a specific objection to the request.

· Respond with a combination of the above (e.g., admit in part and deny in part).

Paralegal Practice Tip

Attorneys are occasionally somewhat cavalier about responding in a timely manner to discovery requests. They may delay responding until a deadline passes and opposing counsel calls or files a motion to compel. This is not good practice in general, but with requests for admissions, it can have serious and costly consequences.

A party who intends to allege lack of sufficient knowledge has a duty to look into the matter (examine his or her records, files, etc.) before responding. If a respondent denies a fact that is subsequently proven at trial, he or she may be assessed fees and costs incurred by the requesting party in proving the truth of the matter. If a party does not object to a request for admission and fails to respond within the period prescribed by the applicable rules of procedure (usually thirty days), the content of the admission is deemed admitted without further action, and the facts or authenticity of documents need not be proved at a subsequent hearing or trial. The seriousness of a failure to respond to a request for admissions was evident in a 2010 Missouri case in which a wife’s omission resulted in several matters being deemed admitted including:

· that she failed to participate in counseling;

· that she failed to cooperate with the court-appointed guardian ad litem;

· that the father was fit to have custody of the minor children;

· that she had shoplifted items from a store;

· that she had “shared a bed” with other men while married to her husband; and

· that she had physically abused her husband and called him derogatory names.

See In re the Marriage of Claire Noland Vance and Brent Vance, 321 S.W.3d 398 (Mo. App. 2010).

Requests for admissions are not often utilized. This is surprising, given their potential to help parties avoid significant time and expense and narrow the issues needing to be proved at trial. They may cover facts or documents about which no dispute is anticipated, clarify disputed issues, and confirm suspicions. Requests can cover a wide range of topics, but each individual request should address only one fact, document, or signature to avoid confusion and minimize denials.

When a request calls for authentication of a document or signature (as on a Voluntary Acknowledgment of Parentage or a Certificate of Civil Union), a copy of the document at issue is attached to the request. If the responder admits that a document—a mortgage application, for example—is genuine, the application may be entered as evidence at trial without having to be introduced through foundation testimony of the mortgage broker. The party can then be questioned about the contents of the application, which may conflict with information on a financial statement or responses in depositions.

Exhibit 6.2 Sample Request for Admissions

STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS	SUPERIOR COURT
SOUTHERN DISTRICT	DOCKET NO. 14-M-0000
IN THE MATTER OF JOHN B. SMITH
AND JANE SMITH

REQUEST FOR ADMISSIONS

John B. Smith, by his attorney, submits the following requests for admissions to Jane Smith:

1. I admit that my husband and I separated on four occasions during the five years of our marriage, immediately preceding the filing of my pending action for divorce.

2. I admit that the attached deed to a property in Boring, Oregon, held in trust and bearing my name and signature, is authentic, genuine, and accurate.

3. I admit that the Bank North loan my husband and I obtained in 2007 was used to cover my tax liability (including interest and penalties) for previously undeclared income I earned as a waitress.

4. I admit that I have a joint bank account at First Third Bank with my friend, Alberto Bonilla.

5. I admit that I take medication for depression on a daily basis and have been doing so for the past five (5) years.

6. I admit that my husband provided the initial down payment of $40,000 on the marital residence out of his own personal funds in 1995.

7. I admit that my husband performed all of the carpentry, plumbing, and electrical work completed over ten (10) full months when the marital home was fully renovated in 2010.

8. I admit that during our marriage, my husband was the primary caretaker of the children and the marital home.

9. I admit that the present value of the marital home is $550,000, based on the attached appraisal performed by a mutually agreed-upon appraiser in December 2014.

10. I admit that I have contributed less than 30% of my income to the payment of joint expenses during the course of our marriage.

11. I admit that two weeks before filing for divorce, I withdrew $14,000 from the savings account at Bank of America held jointly with and funded solely by my husband.

12. I admit that I have filed a wrongful termination suit against my former employer.

13. I admit that I have been arrested for operating under the influence of drugs or alcohol on three occasions in the two years immediately preceding my filing for divorce.

14. I admit that the attached e-mail, addressed to [email protected] dated December 10,  2013, is a true and accurate copy of an e-mail I authored and transmitted on that date.

15. I admit that the signature on the attached application for a $15,000 loan from Citizen’s Bank dated December 15, 2014, is my signature.

16. I admit that since I filed my complaint for divorce I have deleted files from my computer that were relevant to this action.

If any of the foregoing requests for admission is denied because of lack of information or knowledge, identify the request and give a detailed account of every effort made by you or your attorney to inquire into the subject matter of the request, including the date of each effort, the person making such effort, the substance of such effort, and the information obtained by such effort.

ANY PARTY, WHO WITHOUT GOOD REASON OR IN BAD FAITH, DENIES UNDER RULE 54 ANY SIGNATURE OR FACT, WHICH HAS BEEN REQUESTED AND WHICH IS THEREAFTER PROVED, MAY, ON MOTION OF THE OTHER PARTY, BE ORDERED TO PAY THE REASONABLE EXPENSE, INCLUDING COUNSEL FEES, INCURRED BY SUCH OTHER PARTY.

Respectfully submitted,

Paralegal Application 6.6 Requests for Admissions—The Potential Role of the Paralegal

If requesting admissions

· Draft a proposed Request for Admissions based on facts, events, and documents involved in the case that may be suited to this technique.

· Review the draft with the client and the supervising attorney.

· Prepare a final draft that incorporates any corrections, additions, deletions, or edits.

· Serve the reviewed, approved, and signed request on opposing counsel, if directed to do so, and, if required, also file it with the court in compliance with applicable procedural rules in the jurisdiction.

· Mark on all appropriate calendars the date when a response is due to be returned.

· If the response is incomplete or objections are raised, draft documents to implement the course of action determined by the supervising attorney. These may include a letter to and negotiation with opposing counsel and/or a motion to compel compliance with an accompanying proposed order.

· If responses are not received and no objections are filed within the prescribed response period (usually thirty days), notify the supervising attorney, and the facts contained in the request will be deemed admitted in accordance with local governing rules.

If responding to a request

· When a request is received, bring it to the attention of the supervising attorney and (if so directed) send a copy to the client, with a cover letter describing the nature, purpose, and effect of this form of discovery and asking that the client promptly review the requests and determine whether the statements are true and accurate.

· At the attorney’s direction, schedule a meeting with the client in which the attorney will review the requests and potential responses and determine whether there are grounds for objecting to any of the requests. If some or all of the requests are objected to, counsel may agree on a mutually acceptable revised request that can then be filed with the court, if required. If a compromise cannot be reached, the court may consider the objections in a hearing at which both parties and their counsel are present.

· Draft a proposed final response for review by the client and the attorney.

· Serve the reviewed, approved, and signed response on the opposing party, if directed to do so, and file it with the court if required

Requests for Production of Documents or Things

A Request for Production of Documents or Things is a written request for documents or things in the possession, custody, or control of the opposing party or a nonparty third person (such as an employer) for inspection and copying, if necessary. As with all discovery requests, requests for production of documents and things should be tailored to the facts of each case. The request should state the time, place, and manner of production and be sufficiently specific that the responding party will be able to comply. For example, if requesting bank records, a request might read as follows: “Copies of all records of any accounts of any kind including, but not limited to, checking accounts, savings accounts, NOW accounts, Certificates of Deposit, and equity lines of credit with any bank, credit union, or other financial institution for the three years preceding the date of this request.”

Requests for production of documents most commonly seek financial records and information such as bank statements, tax returns, and employment records. They can encompass other things as well, such as diaries, collections, photographs, stock certificates, corporate by-laws, partnership agreements, trusts, deeds, wills, credit card records, airline tickets, and titles to motor vehicles, boats, recreational vehicles, etc. Occasionally requests for production will ask that large items (vehicles, artworks, antique furniture, etc.) be made available for inspection, appraisal, and/or photographing.

Paralegal Practice Tip

A sample Request for Production of Documents or Things can be found at www.pearsonhighered.com/careersresources/ in the website material related to Chapter 6 of this text under Forms. An example of a standardized request for production from a third party can be found at www.flcourts.org (Forms/Form12931).

As discussed more fully later in this chapter, electronic communications and electronically stored information have become prime discovery targets over the past decade. Consistent with this trend, requests for production might seek, for example:

· any and all printouts or computer files evidencing electronic communications between the opposing party and a named third party, whether sent or received during a certain time period.

· any and all documentation of any cell phone or other mobile communications device, including an itemization of incoming and outgoing calls, text messages, e-mails or picture files, as well as an indication of the sender and/or recipient during the year preceding the filing of the complaint for divorce.

· any and all computer files from any personal financial management computer program used over the two years immediately preceding the date of the request such as Quicken, Microsoft Money, or Turbo Tax.

· any and all computer files that contain electronic copies of monthly statements for any credit cards or installment accounts in the opposing party’s name or his or her name with another from a certain date to the present.

Requests for production of electronically stored information in particular must be carefully drafted and targeted to secure specific information directly relevant to the case. Courts are unlikely to compel production if requests are overbroad. For example, in 2010, a New York court held that where a request was made supposedly for the purpose of discovering information pertinent to the value of the husband’s law practice, a wife’s general and unlimited-in-time request seeking access to the entirety of her husband’s business and personal data stored on his office computer was deemed overbroad. See Schreiber v. Schreiber, 904 N.Y.S.2d 886 (2010).

A party responding to a request for production must produce all documents or things requested unless there is a valid objection. For example, the items requested may be subject to a privilege or may not be in the possession or control of the responding party. Unreasonable and irrelevant requests may constitute harassment of the opposing party or a third party. On occasion, the materials requested may contain trade secrets or material about to be but not yet copyrighted or patented. In such situations, the responding party may file a motion for a protective order, or the parties may execute a confidentiality agreement (with or without the assistance of the court) warranting that confidentiality of certain information will be protected under penalty of law for failure to do so.

Paralegal Application 6.7 Requests for Production of Documents and Things—The Potential Role of the Paralegal

If serving a request

· Review the file to identify and compile a list of documents or things needed that are in the possession or control of the opposing party or of third parties such as the IRS, a banking institution, or an employer.

· Discuss the list with the supervising attorney, who will determine a discovery strategy, including which documents and things to request and from whom.

· Draft a proposed Request for Production for review by the supervising attorney and the client.

· Finalize the request for review and signature(s) as required and then, at the supervising attorney’s direction, serve it on the opposing party and/or named third party in the manner provided in local rules.

· When production is received, compile a log and review production to confirm that it fully complies with the request and, if it does not, draft a letter for the supervising attorney’s review requesting that the production be supplemented.

· If the responding party continues to fail to comply, draft a motion and proposed order to compel production for review and possible filing.

· Organize the materials produced, make copies/take photographs as directed, summarize the response, and recommend follow-up measures, if warranted, such as questions for a first or follow-up set of interrogatories or deposition questions raised as a result of a review of the documents produced.

If responding to a request

· Mark receipt and return dates on all appropriate calendars and also schedule response draft and review dates.

· Give a copy to the supervising attorney, who will make a legal determination as to whether any of the requests call for confidential or privileged information and thus a confidentiality agreement or an objection rather than production.

· Draft a letter to the client, enclosing a copy of the request for review, and ask that he or she assemble as many of the requested materials as possible within an appropriate time frame.

· Schedule a meeting for the client with the paralegal and/or attorney as appropriate to review materials, filter out any not specifically requested, and remove any privileged documents or things based on the supervising attorney’s instructions.

· If an extension is needed, notify the supervising attorney and draft a motion for extension of time for production (unless the supervising attorney negotiates a revised timeline with opposing counsel).

· Mark all appropriate calendars with revised draft, review, and return dates.

· Compile the production for delivery to the opposing party, being certain to limit it to material specifically requested and not privileged.

· Serve the materials on the opposing party in an appropriate manner after receiving authorization from the supervising attorney.

Requests for Physical or Mental Examination

Unlike other discovery techniques, because of its intrusiveness, a request to have a physical or mental examination conducted usually must be sought by motion. Generally, courts will grant such requests and compel attendance of a party or third person at an examination only after a hearing in which good cause is shown. There are sometimes circumstances in which a request may be appropriate, such as when

Paralegal Practice Tip

The common distinction between a motion and a request in this context is that a request is usually automatically granted within a certain period after filing absent an objection. A motion customarily requires a hearing in which the court hears arguments from both sides and then issues an order.

· a party raises his or her own or the other party’s mental or physical health as an issue.

· the parentage of one or more of the parties’ children is challenged.

· the mental instability or physical disability of a party is raised as a reason why he or she should be denied custody.

· one of the parties seeks alimony or a disproportionate division of marital assets based on the existence of an alleged disability that makes it impossible for that party to be self-supporting.

· one of the parties seeks a divorce from the other on a fault ground that alleges the other party is a chronic alcoholic or abuser of other drugs.

· a party claims on his or her financial affidavit to have significant and continuing monthly costs for uninsured medical expenses or treatments of some kind.

In rare instances, requests may also be made for examination of a third person in the custody of a party. For example, if a deviation from the child support guidelines is requested because of expenses associated with a child’s medical condition, an examination and assessment of the child’s treatment needs may be appropriate. An examination may also be appropriate in cases in which custody is at issue and a credible allegation of physical or sexual abuse of a child is raised.

Paralegal Application 6.8 Requests for Physical or Mental Examination—The Potential Role of the Paralegal

If requesting an examination

· Review the case file and consider whether a physical or mental examination may be appropriate given the facts of the case and, if so, make a recommendation to the supervising attorney to that effect.

· Develop a list of proposed examiners (such lists often already exist in the resource files of a family law practice and may be maintained by a paralegal).

· If directed to do so, draft a Motion/Request for a Mental or Physical Examination and a proposed order as appropriate with an accompanying affidavit to be signed by the client in support of the motion.

· When approved and signed by the attorney, if directed to do so, file the original request, affidavit, and proposed order with the court, serve copies on the opposing party, and mark on the calendar the date of service, the time and date of the court hearing on the request (if necessary), and the date by which any objection to the request must be filed.

· If the opposing party does not file an objection within the period prescribed by the applicable rules of procedure and/or the court allows the request, notify the supervising attorney for authorization to contact the office of the opposing counsel and make arrangements for scheduling the requested examination.

· If the opposing party does not submit to an examination within a reasonable period of time, notify the supervising attorney for authorization to prepare, file, and serve a motion to compel examination and a proposed order, with a copy to the client. Before or after filing of a motion to compel, counsel for the parties may be able to negotiate an agreement covering the purpose and scope of the examination; the selection process for choosing the examiner; the date, time, and place of the examination; and the use to which the information obtained will be put. If the parties are unable to reach an agreement, the open hearing will proceed.

· When a hearing date is set, notify the attorney, mark the date on the calendar, and notify the client (by phone and in writing) that he or she should plan to be present for the hearing. The attorney and the paralegal will usually prepare the client for the hearing and the kinds of questions that may be asked.

· If the examination subsequently occurs, be sure that the office receives a copy of the examiner’s report and copies of the results of any tests for review and analysis, and suggest needed follow-up such as questions for the examiner in case the report is introduced at trial.

If responding to a request for an examination

· When a request is received, the paralegal will customarily arrange a meeting for the attorney to discuss the request with the client and determine how to proceed.

· If there is no objection, the attorney will usually negotiate terms, which are confirmed in writing, limiting the nature, scope, and use of the examination.

· If there is an objection, draft the objection and supporting affidavit or memorandum for review.

· After review, finalize the objection, obtain the supervising attorney’s signature and approval, and file the objection with the court within the period provided by local rules (usually thirty days).

· When a hearing date is set on the objection, notify the attorney, mark it on the calendar, and notify the client (by phone and in writing) that he or she should plan to be present.

· If the examination is to take place, the paralegal may be asked to schedule it and ensure that the client (or other person to be examined) keeps the appointment. On occasion, a paralegal may accompany the client to a medical examination. If questions arise (usually concerning the scope of the examination), the paralegal can contact the attorney for clarification and/or instructions.

· After the examination, a copy of the examiner’s report and the results of any tests may be sought for review and analysis, but the client then is usually required to produce any similar medical reports in his or her custody or control. Under both state and federal law, the person examined may be required to execute releases waiving privacy rights with respect to medical records.

Exhibit 6.3 Summary Table Re Formal Discovery Methods

Method	Strengths	Weaknesses
INTERROGATORIES	· Interrogatories are cost-effective. · They can be designed to obtain information that can then be used as a basis for formulating other discovery requests. · They may be used to identify potential witnesses, including experts , physicians, and co-respondents when adultery is alleged. Expert a person who, through education or experience, has developed special skill or knowledge in a particular subject · Responses to interrogatories may be more complete than answers at depositions because the respondent has a duty to locate necessary information and provide complete responses.	· Interrogatories can usually be served only on parties and not on third persons. · A responding party’s responses are reviewed with counsel and carefully drafted to reveal as little potentially damaging information as possible. · Responses to interrogatories are written. As a result, the requesting party does not have an opportunity to assess the respondent’s credibility and potential weaknesses as a witness.
DEPOSITIONS	· Depositions can be used with both parties and nonparty witnesses, including expert witnesses. · Necessary information usually can be obtained more quickly than with other methods. · The credibility and performance of the deponent under oath can be assessed. · Follow-up and clarifying questions can be asked if further information is needed or if an answer is incomplete, evasive, or opens up a new area for inquiry.	· Depositions are expensive. The costs are in the preparation, follow-up, and analysis time as well as in the conducting of the actual deposition, court reporter time, transcript preparation, and copying, each of which varies based on the length and complexity of the deposition. · Deposition questions may reveal the deposing party’s theory of the case and give the deponent a better chance to prepare for negotiation and/or trial.
REQUESTS FOR ADMISSIONS	· Requests for Admissions are cost-effective. · They can be used to narrow the issues needing to be addressed at trial. · They can be used to clarify disputed issues and to confirm suspicions. · They can reduce the number of facts (or the validity of signatures or documents) needing to be proved at trial.	· Requests may reveal the theory of the client’s case and/or available defenses.
REQUESTS FOR PRODUCTION OF DOCUMENTS OR THINGS OR ENTRY UPON LAND	· These requests can be used with both parties and nonparty witnesses. · They allow a party to obtain critical information from entities such as employers and the IRS. · They often yield a wealth of information that leads to further productive discovery.	· They can be expensive, depending on the nature and extent of production. · Responses to requests for electronically stored information from third parties/providers are difficult to obtain given current federal and state laws.
REQUESTS FOR PHYSICAL OR MENTAL EXAMINATION	· Requests may lead to discovery of otherwise privileged information.	· These requests can usually only be served on parties although the court may allow examinations of children in appropriate circumstances, such as when there is an allegation of abuse. · Requests are highly intrusive and may exacerbate an already acrimonious dispute. · Usually, a request must be sought by motion, and such motions are granted only upon a showing of good cause.

Objections to Formal Discovery Requests

A party who receives a request for discovery has a duty to respond to the request. In general, a party must respond to all questions and/or requests for which there is no legally accepted objection. Objections are commonly governed by procedural rules and common practice. If there is an appropriate objection, it is usually specifically stated in lieu of an answer. However, local rules may structure the nature and registering of objections. For example, in some jurisdictions, deposition questions should be answered and objections raised for consideration at trial unless the questions call for privileged or constitutionally protected information.

The most common objections to discovery requests are the following:

1. The request creates an undue burden or expense. For example, in a no-fault case involving few assets, the opposing party requests ten years of bank statements for an account that rarely held more than $2,000, and the parties have already essentially agreed on the division of their minimal property. Compliance with the request would be costly to the respondent and yield nothing productive for the party making the request.

2. The request seeks discovery of material that is not relevant to the issues in the case. For example, in a no-fault divorce action in a jurisdiction that does not consider marital fault as a factor in property division or spousal support decisions, requests for information pertaining to marital infidelity are not relevant.

3. The document or information requested is not within the party’s possession or control. In some marriages, one party has maintained control over the parties’ finances, paying the bills, completing the tax returns, and maintaining records—often on a personal computer to which the other party has no access. In such circumstances, the other party may simply be incapable of complying with a discovery request calling for financial records.

4. The document, thing, or information requested is protected by a privilege that is legally recognized within the jurisdiction. The most obvious privilege is the attorney-client privilege, which protects communications between the attorney and the client as well as the attorney’s “work product.” Work product customarily includes material prepared in anticipation of litigation, such as comprehensive financial reports prepared by accountants. Most jurisdictions recognize additional privileges, such as priest-penitent and doctor-patient privileges. A minority of jurisdictions recognize a social worker-client privilege and/or a parent-child privilege. A party may waive a privilege under certain circumstances. For example, if a spouse is seeking spousal support and/or a more favorable property settlement based on an alleged health problem, medical information pertaining to that condition which otherwise might be protected by a doctor-patient privilege will likely be discoverable by the other party.

Work product

written or oral material prepared for or by an attorney in preparation for litigation, either planned or in progress

Paralegal Practice Tip

Because the paralegal is an agent of the client’s attorney, acting under the attorney’s direction and supervision, the paralegal’s presence in client interviews or contributions to “work product” do not destroy the privileged character of those communications or materials.

5. The information being sought is cumulative. This objection is based on the argument that the party seeking the information previously has requested it in another request or format or already has the information in his or her possession or control.

6. The form of the question is improper. For example, the question is redundant or overbroad. It would warrant an objection on this ground if information is sought about a party’s entire medical and psychiatric history rather than about the sole medical condition at issue in the case.

Paralegal Practice Tip

In a 2009 case, a California appellate court held that a father’s medical records were discoverable in a custody battle, at least with respect to a neurological condition the wife claimed exposed the parties’ minor son to risk. The court found the father had waived the doctor-patient privilege and that his constitutional right to privacy was outweighed by the state’s compelling interest in protecting the child’s best interest. See Manela v. Superior Court of Los Angeles County, David Y. Manela, Real Party in Interest, 177 Cal. App. 4th 1139, 99 Cal. Rptr. 3d 736 (2009).

7. The request is made in bad faith solely for the purpose of harassment. For example, the request seeks information unrelated to any matter at issue and is designed solely to embarrass or cause emotional distress. Questions relating to an abortion obtained as a teenager or the fact that the party was in the country illegally at one point before becoming a citizen could be objected to on this ground.

8. The request calls for production of material that constitutes a trade secret. Production should be excused because it would result in serious economic loss to a business. Sometimes such objections can be dealt with through privacy agreements setting agreed-upon limits on what will be produced and how it will be used.

9. A respondent may raise a Fifth Amendment right against self-incrimination if appropriate. For example, in a state where adultery still constitutes a criminal offense, a person may refuse to answer questions relating to an adulterous affair during the time falling within the applicable statute-of-limitations period.

10. Financial Statements Every state requires each party to an action for divorce, separate support/legal separation, or child support to exchange with the other party and file with the court a document containing basic financial information about his or her respective needs, resources, and liabilities. (See Exhibit 6.4.) The document is commonly called a Financial Statement, a Financial Affidavit, or an Inventory of Assets and Liabilities, and it must be filed with the Complaint or within a certain period after the action is commenced. It is designed to provide the parties with data needed to inform their decisions, especially with respect to matters of support and property division. It also provides the court with a frame of reference for assessing the fairness of a proposed settlement or for making decisions in a contested case. The client is required to sign it under pain and penalty of perjury. Several states require that counsel also sign the document affirming that it does not contain information known by the attorney to be false. Clearly, a financial affidavit can be the single most important document presented to the court, as it not only provides essential information, but also reflects both the client’s credibility and the attorney’s level of preparedness. Paralegal Practice Tip For readers wanting to work their way though some financial statements available online, check out the following: ARIZONA www.azcourts.gov (Petition for Dissolution without Children) FLORIDA www.flcourts.org (Forms/12.902 long and short forms) GEORGIA www.georgiacourts.org (Court Forms/Statewide Domestic Relations/ Domestic Relations Financial Affidavit) MASSACHUSETTS www.mass.gov/courts%20 (Forms/Divorce/Financial Statements-long and short forms) Forms for many other states are also available online at state sponsored sites. (See Appendix C.) The specific format of financial statements varies from state to state, but the basic information called for is essentially the same. All forms cover income, assets, expenses, and liabilities. Assets include both real property (real estate) and personal property (such as bank accounts, stocks and bonds, cash, collections, household furnishings/antiques, and notes payable to the party). Liabilities include such items as mortgages, equity loans, car loans, credit card debt, court judgments, and debts owed. Some states, such as Massachusetts, have more than one form—one for parties of more modest means and a second, more detailed form for parties with more substantial income and assets. Many states now make divorce forms, including financial statements, available online. In addition, there are several software packages that allow family law practitioners to create and print financial affidavits in approved formats, although it may be necessary to indicate that the form is computer-generated and/or to print it on a particular color paper. Such programs are helpful because they automatically calculate the figures and store them for future use. However, considerable care must still be taken to ensure that the data input is accurate in initial and updated editions. (See Paralegal Application 6.9.) The paralegal often is asked to coordinate preparation of financial statements. At first blush, completing an affidavit may appear to be a simple fill-in-the-blanks and tally-the-figures task, and in cases involving an unemployed client and few if any assets, it may be reasonably straightforward. Nonetheless, each affidavit requires careful attention given its potential importance. Initially the client gathers the financial information for inclusion on the form provided by counsel or the court and completes a preliminary draft for review. Paralegal Practice Tip Financial Statement: An attorney cannot condone or assist a client who is providing false, inaccurate, or incomplete information on a financial statement. The attorney should advise the client of the potential consequences of such conduct, correct the record if already filed, or withdraw from the case to avoid an ethical violation. See New York State Bar Association Committee on Professional Ethics Opinion 781-12/8/04. Exhibit 6.4 Example of a Financial Affidavit—State of Connecticut Courtesy of the State of Connecticut Depending on the client’s financial, organizational, literacy, and record-keeping skills as well as the size and complexity of the marital estate, the paralegal may be assigned to work with the client on this task. The paralegal should verify that the figures provided are current, accurate, and able to be documented to the greatest extent possible. The client needs to understand the contents of the affidavit and be able to respond to questions which may be posed by the court or by the other party. For example, in the context of a deposition, it is not uncommon for a party to be questioned about: each and every expense item how each figure was calculated what documentary evidence exists to corroborate the figures how any discrepancies between income and expenses can be explained Paralegal Application 6.9 Pointers on Completion of Financial Affidavits Instructions for completing financial affidavits should be followed carefully. The affidavit should be complete, with every space filled in with a figure, a “0,” “none,” or “NA” (“not applicable”), as appropriate. If allowed, footnotes or attachments should be used when necessary to supplement or more fully explain figures that might otherwise be confusing or misleading out of context if the form doesn’t permit the party to adequately represent his or her specific circumstances Most attorneys believe the affidavit should provide a complete picture of the client’s financial situation in an organized, coherent, and consistent manner. A failure to do so opens the door for attack by opposing counsel or questioning by a judge about figures that are inaccurate, double-counted, confusing, or not included. The affidavit should reflect a party’s current financial circumstances. However, if a party’s income varies seasonally, with market fluctuations, or for some other reason, averages may usually be used. If weekly or monthly income and expenses do not balance, the party must be able to explain how a shortfall is covered or where the excess income is placed. For example, if the party claims to be spending more than is earned, is he or she borrowing money, withdrawing from savings, selling assets, and/or receiving funds, gifts, or other subsidies from third parties? Contested cases frequently drag on for months and involve multiple court appearances for temporary orders, motion hearings, discovery conferences, and the like. Whenever a hearing is for the purpose of addressing an issue with financial implications, such as child or spousal support or occupancy of the marital residence, a current financial affidavit is customarily required. A party must be able to explain any discrepancies between prior and current affidavits. In cases involving complex assets and liabilities, it may be necessary to consult with accountants, financial advisors, appraisers, and other experts to establish values and appropriate figures to be included on financial affidavits. Care should be taken that figures appearing on affidavits can be documented wherever possible and that they are consistent with other documents that may be provided to the court or available to the other party.2

E-Discovery: The Discovery of Electronically Stored Information (ESI)

Over the past two decades, technological innovation has dramatically altered the ways in which we learn, conduct business, communicate, entertain ourselves, and store information about every aspect of our lives. The primary focus of electronic discovery (e-discovery) is on finding this electronically stored information. Electronically stored information (ESI) has been defined as “information created, manipulated, communicated, stored and best utilized in digital form, requiring the use of computer hardware and software.” 3 It includes, for example, documents and spreadsheets, e-mails, voicemails, text messages, metadata, digital images, and video. ESI may be stored in many kinds of devices, including laptops, desktops, cell phones, digital cameras, business networks, company e-mail servers, and loose media devices (e.g., DVDs and thumb drives). It includes data stored online from free Internet mail servers like Juno and Hotmail, social network services such as Facebook and Twitter, and Personals sites including Match.com and Adult Friend Finder. 4 It can also be found in less common places such as iPhones, MP3 players, video game consoles, GPS devices, and in the “ cloud ” in online sources of data and backup storage such as Mozy or Carbonite.

Electronic discovery

discovery of information created, stored, or best utilized with computerized technology of any sort

Social network

a collection of people connected electronically by something they have in common

Cloud

a communications network; the word “cloud” usually refers to the Internet and to software and data storage on an Internet site or network of sites

The impact of technological advances has inevitably been felt throughout the legal system as legislatures, courts, and lawyers try to weave discovery of electronically stored information into legal practice and decision making. The challenge of doing so is an evolving one, which is unlikely to end anytime soon. In a 2008 survey, 88% of the members of the American Academy of Matrimonial Lawyers (AAML) reported that they had seen an increase in the use of electronic evidence in family law cases over the previous five years. Most commonly used or encountered were e-mails, text messages, and browsing histories in addition to evidence from Facebook, MySpace, Twitter, and other social networking sites including YouTube and LinkedIn. Used to a lesser extent are electronically stored documents such as word files, contact lists, and financial programs and spreadsheets. 5

Paralegal Practice Tip

Since technology is evolving rapidly, so are the modes and limits of e-discovery. The paralegal who keeps current with those evolutions—technological and legal—will significantly advance his or her value to a family law practice.

Thus far the trend among the states appears to be to treat discovery of ESI in essentially the same manner as discovery of other kinds of materials and adapt existing rules to accommodate its unique nature when necessary. This approach is consistent with the amended Federal Rules of Civil Procedure and Evidence, the Guidelines for State Courts promulgated by the Conference of Chief Justices in 2006, and the Uniform Rules Relating to Electronically Stored Information (adopted in Wisconsin and Connecticut and introduced in Rhode Island as of January 2015). The Uniform Rules impose upon litigants the obligation to discuss electronic discovery at the outset of litigation. Parties must confer regarding the forms of production and the extent to which data is to be preserved. Once a party receives a request for production of electronically stored information, the party must permit discovery of information that is relevant, not privileged, and reasonably accessible.

Paralegal Practice Tip

Increasingly, parties in family law cases negotiate “preservation agreements” at the outset of a case, which identify the specific ESI and sources to be preserved while the matter is pending. Such agreements may include provisions with respect to information that may be privileged or otherwise protected. Absent an agreement, a preservation letter should be sent to opposing counsel putting them on notice of the need to preserve and retain data relevant to the case.

Although they are likely to increase in future years as new technologies emerge and precedents are set, fewer electronic discovery cases have reached the appellate level than one might expect. (See Paralegal Application 6.11 .) Thus far, cases have largely been decided on a fact-driven case by case basis with the courts trying to balance the parties’ rights to privacy with their need for information relevant to their cases. When addressing objections to production of ESI, especially social media evidence, the courts typically do one or more of the following:

· refuse to grant a motion to compel production of ESI because the request is overbroad, calls for privileged information, or is otherwise objectionable on some common ground

· grant the motion and compel production in some instances, going so far as to order the parties to exchange passwords directly or through counsel 6

· elect to conduct an in-camera review of the requested material

· order a party to exercise a consent to allow the other party access to the information

· allocate costs between the parties or assign them to the requesting party

Paralegal Practice Tip

A request for production/seizure of the other party’s computer equipment, storage devices, etc., may be made by means of an ex parte motion to the court when there is a strong fear that the other party will destroy or alter the data stored on the computer equipment. Care must be taken to make such requests in a form the client and/or attorney can read, understand, analyze, and afford.

· order that a party’s computer and storage media be seized and searched if it is demonstrated there is a strong likelihood the opponent is likely to destroy electronic evidence prior to production

Paralegal Application 6.11 Electronic Discovery Case: You Be the Judge

Read the full opinion in the following case and see if you agree with the court’s reasoning.

1. Byrne v. Byrne, 650 N.Y.S.2d 499 (1996). In this case, the court considered a dispute over who should be permitted access to the husband’s notebook computer. The husband’s employer provided him with the computer for use in his employment. The husband routinely brought the device home with him and allowed his children to use it to complete their homework. The wife, believing it contained personal and financial records relevant to the pending divorce, took it to her attorney to access relevant documents. At the time of the hearing on this issue, the computer was under the control of the court. The husband claimed it was personal property, albeit not owned by him (although the employer did not restrict its use), and that it was not subject to discovery. The wife claimed she should have access because it contained relevant financial records that are normally subject to discovery. The court reasoned that the real issue was not who possessed the computer but rather who had access to its memory. Because of the way it was used, the court found that the computer could be characterized as a “family computer” and further held that “… computer memory is akin to a file cabinet. Clearly the plaintiff could have access to the contents of a file cabinet left in the marital residence. In the same fashion, she should have access to the contents of the computer.” The court held that the only way to determine if the wife was correct was to have the contents of the computer memory opened up or “dumped” and analyzed and in its order the court outlined the process by which this would take place (an inventory of contents to counsel, a period of review and raising of any claims of privilege, a release of the contents to the wife’s counsel, and return of the computer to the employer).

E-discovery provides both challenges and opportunities for attorneys. ESI provides a rich source that can be mined for information which can be used to support (or refute) a client’s case. But it also triggers ethical duties such as the duty to provide competent representation and to avoid revealing client confidences. (See Paralegal Application 6.12 .) Family law attorneys must develop their technical skills, stay current with respect to technological advances, and know how to economically and effectively locate, preserve, collect, review, and utilize reasonably necessary electronically stored information. They must review information sent to opposing counsel and screen material produced in response to discovery requests to avoid inadvertent disclosure of confidential or privileged information. They also must make a reasonable effort to ensure that their paralegals’ conduct is consistent with these same ethical obligations. In addition, attorneys need to provide appropriate guidance to clients with respect to their online activities and security measures.

Paralegal Practice Tip

Go to the companion website for this text at www.pearsonhighered.com/careersresources/ and look in Resources for Chapter 6 for a list of Recommendations to Clients With Respect to Online Activity.

Paralegal Application 6.12 Hypothetical Dilemmas: What Do You Think?

Revisit Chapter 1 to review the distinction between an evidentiary privilege and an ethical duty and then consider the following dilemmas that involve storage and transmission of electronically stored information.

Is the attorney-client privilege waived?7

Suppose Attorney Wasik accidentally sends the wrong attachment in an e-mail to opposing counsel in a hotly contested custody case. Instead of a proposed Stipulation regarding Temporary Custody, he inadvertently attaches a recent e-mail to him from his client, Pat S., in which she admits that in the past, she has physically abused the parties’ son, especially when under the influence of illegal drugs. The e-mail was initially protected by attorney-client privilege. Has the privilege now been waived? Can the e-mail now be admitted as evidence against the mother in the custody litigation? Check to see if it would be waived if the situation were governed by the revised Federal Rules of Evidence, specifically 502(b). Would it be waived under your state’s rules of evidence?

Has the attorney violated the ethical duty to maintain client confidences?8

Suppose Attorney Cheff directs his paralegal, Lucy, to send a proposed separation agreement (a Word Document) to opposing counsel in a divorce case for review and consideration. The agreement has previously undergone several revisions as Attorney Cheff’s settlement strategy has evolved. When she sent the document, the paralegal was unaware that it contained metadata—invisible data that is generated during creation and editing of the document. Among other things, it provides information about when and by whom the document was created. It also tracks edits and reveals prior versions of the document. Metadata is automatically linked with an electronically stored document and travels with it when it is transmitted if steps to remove it are not taken, such as using metadata scrubbing software. Has the sending attorney violated the ethical duty to maintain client confidences? Has he violated other ethical duties? Can the receiving attorney (whose paralegal knows how to access it) use the metadata or would that constitute an intrusion into the attorney–client relationship to gain an unfair advantage? Look at Rule 4.4(b) of the ABA Model Rules of Professional Conduct as well as Formal Op. 06-442 of the ABA Standing Committee on Ethics addressing this topic. Both can be found at www.americanbar.org . The states are divided in their positions. What approach has your state taken, if any? What do you think is the right course of action?

Discovery of Electronically Stored Information

Earlier in this chapter, examples have been provided of how both traditional informal and formal discovery methods can be used to discover ESI. The approach taken depends in part on the nature of the documents sought, the reason for seeking them, the use to be made of them, and the relative likelihood of the other party altering or destroying them. If all that is needed is a copy of a document from a trusted source, then a simple (and inexpensive) informal request for the document may suffice. At the other end of the spectrum, if what is needed are complex records concerning the values of multiple business interests of an uncooperative and deceptive opposing party, an e-discovery request in the form of a request for production may seek seizure of one or more computers and ancillary equipment for detailed inspection by forensic computing experts using sophisticated tools.

Paralegal Practice Tip

In Stafford v. Stafford, 641 A.2d 348 (Vt. 1993), a wife in a divorce action put informal discovery to good use. She had previously found a notebook in the marital home, containing a list and description of her husband’s sexual encounters, but the notebook disappeared. She subsequently found a document on the family computer called “My List” saved by the husband and sought to admit it as evidence at trial. The court concluded there was no error in admitting the electronically stored document and inferring from it the husband’s infidelity.

Properly obtained, ESI may be admitted as evidence to prove facts in a case or to impeach the credibility of a party or witness. For example, if access to ESI storage devices themselves is obtained, a computer forensic expert can uncover a wealth of information such as the following:

· Elaborate user profiles on Facebook, LinkedIn, and Google Profile etc. may reveal a wide range of personal data, which may or may not accurately reflect the user’s identity and circumstances. Paralegal Application 6.13 provides some suggestions about obtaining information from social networking sites in particular.

· Installed programs will include file sharing applications that allow a user to search for and collect digital images that may be analyzed in terms of the types of images sought (e.g., pornographic).

· Analyses of unallocated file space may reveal “deleted” data that hasn’t yet been overwritten by new data.

· Because Internet web browsers keep files (called cache files) that automatically index a user’s browser history in detail, an expert can create a timeline of computer activity reflecting when and with what frequency users visited certain sites, such as the thousands that offer online legal and illegal purchases of prescription drugs. 9

Paralegal Practice Tip

In Lewton v. DiVingnzzo, 772 F. Supp.2d 1046 (2012) (U.S. Dist. Ct. D. Nebraska), a man sued his wife under the Electronic Communications Privacy Act for civil damages after she hid a digital recording device in their child’s teddy bear and recorded conversations between the child and her father for several months. The wife had resorted to “self help” measures after her husband was awarded unsupervised visitation with the child.

Paralegal Application 6.13 Social Media Sites as Discovery Targets

Characterized less than ten years ago by a court as “one large catalyst for rumor, innuendo and misinformation,” 10 and more recently as “electronic exhibitionism,” 11 social media have transformed the way people communicate. Social networking sites are incredibly seductive for millions of users who choose to upload highly personal information, post pictures and videos depicting themselves in a variety of settings and engaging in diverse activities, airing their concerns, interests, opinions as well as their relationship status and preferences. With more than half of all Americans using them, social networking sources provide a rich opportunity to seek and find incriminating information about parties and witnesses. Facebook claims to be the most popular site with Twitter being the second most popular, as of 2014. LinkedIn, the world’s largest professional network, has well over 120 million users.

The evidence obtained from such sources can support alleged grounds for divorce, influence custody and visitation orders, and impact support and property division awards.

· A profile may represent a party seeking a divorce and custody as being single, childless, and interested in dating.

· A post promoting a party’s professional services might reveal an “under-the-table” source of income not listed in a financial statement.

· Photographs and their captions posted on a network page or “wall” can reveal compromising relationships, possessions, activities, etc.

· A list of interests, group affiliations, and activities might yield names of potential witnesses and dates and places of meetings at which parties or other key people can be found.

· Social plans or experiences shared with friends might lead directly to compromising revelations.

There are several ways of accessing information from these sites. Consider the following examples.

Informal discovery

Some informal discovery appears to be acceptable, subject to ethical considerations. It is often the easiest and least expensive tool. Search for and view as much publically available information as possible. For example:

· Conduct a search on a name on Google, Bing, or other search engines for any social networking profiles that are publicly viewable

· Go to search engines of social networking sites directly

· Go to a site like Spokeo.com, which aggregates information on any person from multiple sites

When engaging in informal discovery, caution must be exercised to avoid running afoul of federal and state laws. No matter how relevant the material may be to a case, the Electronic Communications Privacy Act 18 U.S.C. § 2510 et seq. makes it unlawful for a person to intentionally intercept (while it is being sent from the sender to the recipient) any oral, wire, or electronic communication or to use or disclose any such communication. Reading a copy of a document already sent will not violate this Act but may violate some other Act such as the Stored Communications Act 18 U.S.C. §2701 et seq. (SCA), which imposes liability on individuals for accessing ESI without authorization and third party providers such as Facebook for revealing ESI created by or about their customers and subscribers. In effect, this Act creates Fourth Amendment-like protection for e-mail and digital communications stored on the Internet. See O’Brien v. O’Brien, 899 So. 2d 1133 (Fla. Dist. App. 2005). Even if ESI is not discoverable through informal means, it may be through formal discovery methods.

Formal discovery

If a party wants and needs information from social networking sites, it is worth trying and letting the courts address objections. Consider the following examples of how formal discovery might be used.

Interrogatories: Interrogatories open the door. Early in the case, they can be used to seek information about the opposing party’s use of social media sites, screen names, passwords, and other account information.

Requests for Admissions: A party may be asked to admit that they: (1) terminated all of their social networking services immediately after being served with the complaint for divorce; and (2) authored and transmitted on a specific date a particular post to a particular social network and that the copy of the post attached to the request is a true and accurate copy of the transmitted message. Given how easy it is to manipulate posts and make them look as if they were made by someone else, it can be hard to establish the authenticity of such material at trial. A properly crafted admission can accomplish this in advance.

Depositions: The deponent may be asked questions about their online social networking activities including personal profiles that misrepresent their marital status. Paper printouts of screen shots of a website may be produced or their Facebook page may be opened in the context of the deposition and questions can be asked about various photos, status updates, and posts.

Requests for Production:

From third parties: A subpoena may be served on a service provider/social media site but it is unlikely to yield any more than basic subscriber account information given federal regulations.

From the opposing party directly: The best method is a well-tailored request to the other party who is already in possession of the desired information or has ready access to it. The request should not seek unrestricted access to all social media content. It should be time-limited, narrowly tailored to produce relevant information and reasonably calculated to lead to admissible evidence related to a fact at issue. For example, if the opposing party alleges he has a disability that prevents him from working and paying support, the spouse should be entitled to discover evidence that he is not injured as claimed. The request might seek “all online profiles, postings, messages (including but not limited to tweets, direct messages, status updates, wall comments, and blog entries), photographs, videos, and online communication relating to his physical condition and employment over the past six months.” Facebook can actually facilitate production because it has a feature that allows a user to download a copy of material he or she has shared on the site. As an alternative to production, the opponent may be asked or ordered by the court to execute a notarized consent/authorization permitting the holder to obtain private social media content directly from the site (an option permitted by the SCA). Once requested, there is a duty to preserve the requested material or risk sanctions for spoliation. If a party refuses to respond to a request for production, a motion to compel may be filed at which point the court will likely hear an objection that the request violates a right to privacy. (See Paralegal Application 6.14 .)

Paralegal Application 6.14 Is There a Social Networking Privilege?12 Do Privacy Concerns Trump a Party’s Right to Discovery of Social Networking Evidence?

Many social networking sites provide some measures of privacy protection to users although surprisingly many users post freely. The sites also typically refuse to respond to direct subpoenas, claiming that their data is protected under the federal Electronic Communications Privacy and Electronic Communications Acts. But that is not the end of the matter. Several courts have held that Facebook information, even if “protected” by privacy settings, is discoverable if relevant and material to the claims of a party. Do you think users of social networking sites should have a right to privacy in their online activity? Should information on sites such as Facebook be discoverable even if allegedly protected by privacy settings? When people create Facebook accounts and the like, do you think they may have impliedly consented to the possibility that personal information might be shared with others notwithstanding their privacy settings?

Court Involvement in the Discovery Process

Courts generally affirm a party’s right to conduct comprehensive and liberal discovery and prefer not to become involved in the process unless mandated by procedural rules (as in the case of Requests for Mental or Physical Examinations) or by the unique circumstances of individual cases or the conduct of counsel or the parties. The most common ways in which the courts become involved are:

1. Discovery Conferences. A court may, on its own initiative, pursuant to court rule, or at the request of a party, order that a discovery conference be convened, at which time a discovery plan is reviewed or developed and agreed upon. The plan typically sets out the appropriate topics for discovery, the discovery methods to be used by each of the parties, and the timeline within which discovery must be completed. Most states have in place procedures for managing discovery under the court’s supervision (through a “discovery master”) to ensure that the parties make reasonable and timely requests and responses.

Paralegal Practice Tip

An example of a case management agreement can be accessed at www.jud.ct.gov (Connecticut) (Attorneys/Forms/Family/JD-FM-163).

2. Protective Orders. A court will entertain a motion for a protective order brought by a party who contends, for example, that a discovery request seeks privileged information, is excessive and would lead to undue burden or expense, or is made in bad faith solely for the purpose of harassment. If the motion is granted, the court will establish limitations on discovery.

3. Orders to Compel and Impose Sanctions for Noncompliance. When a party fails to comply with a discovery request, the party making the request may file a motion to compel. If granted, the discovery request then becomes, in effect, an order of the court, and a failure to comply may result in sanctions. For example, the noncomplying party may be held in contempt of court and be ordered to pay the fees the other party incurred in pursuing the matter. In especially egregious cases, if he or she is the moving party in the underlying action, the matter may be stayed or dismissed or the party may be prevented from introducing related evidence at trial. In some jurisdictions, prior to filing a motion to compel, the parties are required to exhaust efforts to settle the discovery dispute without the assistance of the court.

Chapter Summary

This chapter provides a comprehensive survey of the discovery process—its nature, scope, purposes, and methods, both formal and informal. Attention is given to the ways in which the client can contribute to information-gathering efforts. The five major formal discovery methods are described and examples are provided from family law cases: interrogatories, depositions, requests for admissions, requests for production of documents and things, and requests for physical and mental examinations. The nature, role, and importance of financial affidavits are also addressed.

Throughout the chapter, the paralegal’s role in the discovery process is heavily emphasized. Several reminders are provided regarding related ethical duties and the importance of being aware of the substantive laws and procedural rules governing discovery. Additional topics relevant to discovery are also considered, including objections to discovery requests, the challenge of uncovering hidden assets, and the court’s involvement in the process. Given the extent to which technology has greatly altered the manner in which businesses and individuals create, store, and retrieve information, particular attention is given to electronic discovery—the accessing of electronically stored information—and the Internet and social networking sites in particular as fertile sources of information.