You don’t have to be a Maverick to find yourself in “the discovery zone” during your divorce. Discovery is an extremely common and necessary tool for your attorney to help you gather information. But what exactly is it? In this post, we will review the top 4 most common discovery methods that you may encounter in your family law matter.
Indiana Trial Rule 26 specifically outlines the methods of discovery which may be used. The most common two options are written interrogatories and requests for production of documents. Written interrogatories are specific questions that are asked by one party to the other, such as the work schedule and salary of the party, or where he or she has bank accounts. Some interrogatories also seek information that may slant toward what that party will be asking for at a hearing, such as, “what parenting time schedule are you seeking with the minor child?” Requests for production are usually written requests for documents, such as bank statements, deeds, appraisals, and credit card statements, but may also request any paper documents that might be used at a hearing. As more and more of our world becomes paperless, the request for production also includes “electronically stored information,” which could include voicemails, recordings of telephone calls, or videos.
If a party refuses to provide the requested documents, and/or the documents are incomplete in some way, the attorney can do what is called a third-party request for production. This means that rather than asking Bob for his Huntington Bank account statements, the attorney can simply ask Huntington Bank for the documents directly. This is relatively simple, but can be more expensive, especially as most banks or credit card companies, for example, will charge a fee to produce the requested information. Further, if a party knows that Bob has an account “somewhere in Indianapolis,” but is not sure what bank Bob actually uses, it can be like searching for a very expensive needle in a huge haystack to ask every bank in town for the documents. This is only recommended when a party has at least some idea where the accounts may be located.
Another option that is less commonly used is a deposition, usually “upon oral examination.” This means that both parties are usually present, with both attorneys, as well as a court reporter, who records and types a transcript of the deposition. One attorney asks questions of the opposing party and may also ask him or her to bring documents to the deposition as well. The questions could be similar to what might be asked at a hearing, but also give the attorney asking the questions the opportunity to dig deeper into the answers and ask follow-up questions. This can be a great trial tool for both attorneys to see how the person being deposed will do as a witness in court. However, it can be very expensive and as such, may be cost-prohibitive for many parties.
So what does this mean if you are in a family law matter and you are served with discovery? Generally, you will have 30 days after receiving interrogatories and requests for production to provide your written responses and all the requested documents. Answer all the questions and provide all of the documents that you can obtain. For example, if you don’t have paper copies of your bank statements but can print them out, do it. If you are on autopay for your mortgage so you don’t get statements, get on the website and print out the statements anyway. Even if you think the question is “dumb” or may not pertain to your situation, there may be a reason that the question or request is being made. Rely on your attorney to object to inappropriate questions or limit the documents you have provided, as they are your legal expert. Otherwise, turn it all over to your attorney. Let them do the job for which you are paying them. If a family emergency or work obligation interrupts your ability to complete your responses or gather your documents, tell your attorney. He or she can ask for more time. Failure to keep the other side appraised of any hiccups you may have with completing your responses or failing to turn over all requested information could result in attorney fees being assessed against you, and/or not being able to present all your evidence at a hearing. If you don’t understand the question being asked of you or what document is being requested, ask your attorney.