DISCOVERY: IT IS A HASSLE, IT IS A LOT OF WORK, IT IS NOT FUN OR PLEASANT, BUT IT IS ABSOLUTELY CRUCIAL TO YOUR CASE
At some point during your case the opposing party will serve written discovery requests on you, and, likewise, we will serve written discovery requests on the opposing party.
The purpose of this Article is to help you understand what “discovery” is, what you will need to do in order to “answer” it, what we need to do in order to provide your answers, and why it is important to your case.
What is Discovery?
The purpose of discovery is to allow the parties to obtain full knowledge of the issues and facts of the case before trial. Each party to the case will serve varying “requests” for information (discovery) in order to learn the facts of the case and obtain evidence to be used at trial. It also allows your attorney to “discover” the evidence that is in the possession of the other party and that they will most likely present to the Court at trial.There are four types of written discovery that are typically served during the case:
- Request for Production & Inspection – This is a request that you produce specific documents and things and/or make them available for inspection. This is the most time consuming of the discovery requests as you may be requested to produce documents over a significant time period. For example, in a divorce case, you can be expected to produce 3-4 years of bank statements, credit card statements, bills, paystubs, retirement account statements, and the list goes on. In certain instances, you may be required to produce documents that predate your marriage which could go back decades depending on the length of your marriage. There is no limit to the number of requests that can be asked in this document. The documents produced will aide the attorneys and the Court as to the value and nature of the property owned by you and your spouse, as well as provide useful information concerning your children. Your attorneys will utilize the information to evaluate the strengths and weaknesses of your case, the strengths and weaknesses of the opposing party’s case, to formulate settlement proposals and negotiate with the opposing counsel, and to ultimately present your case to the Judge at trial.
- Request for Production of Documents – START GATHERING THE DOCUMENTS IMMEDIATELY. As stated above, this is the most time-consuming request. You are required to provide the documents that are responsive to EACH request and that are in your possession and/or that you have the right to access. For example, if the request is for your tax returns for the last three years, it is not sufficient to say “I don’t keep copies”, when you can obtain the copies from your CPA or the IRS. This will apply to bank records, credit card records, real estate records, etc. Since you will most likely be required to provide the requested records over a multiple-year period, start the process NOW. If you fail to produce a document in response to a request for production, your attorney will not be able to use that document at trial.
- Request for Production – We will prepare your written response to each request. We will copy and bate stamp each responsive document received from you and organize the documents by request. The written response and documents will also be copied onto a computer disc and will ultimately be served upon the opposing party. This process IS TIME CONSUMING WHICH IS WHY YOU MUST HAVE THE DOCUMENTS TO US IN 20 DAYS. We must have time to properly prepare and timely serve your responses.
- Written Interrogatories – Interrogatories are when you answer specific questions about the case to support your custody case, and you will sign your answers before a notary. While interrogatories are designed to elicit the basic facts of the case, the questions can be quite detailed and may contain several “subparts” to be answered.
- Written Interrogatories – Begin answering the questions as fully and completely as you can. You may have to review some of your documents in order to answer some of the questions. As mentioned above, some questions will have multiple subparts and you must answer each subpart. Be sure that you separate each answer and it’s subparts if there is more than one answer to the question. If you fail to disclose information in an answer to an interrogatory, you may be prohibited from testifying to that information at trial.
- Interrogatories, Requests for Disclosure and Requests for Admissions – We will prepare your written responses to each interrogatory, request for admission and request for disclosure. You will go over your responses with your attorney and you will review each document for accuracy. You will then be required to sign your answers to the interrogatories before a notary. Once all of your responses (and documents) have been compiled into the final proper form, we will serve your responses on the opposing party and file a certificate with the Court. Why it is Crucial to Your Case We understand that responding to discovery requests and gathering documents is time consuming and can be disruptive to your daily routine, but it is necessary in order to evaluate and handle your case in the best possible manner. Failure to provide full and complete answers, or produce all of the requested documents, can result in any and/or all of the following:
- The filing of numerous motions by the opposing party and hearings being held by the Court on those motions, all of which cause significant attorney fees to be incurred; (and you could be ordered to pay the opposing party’s attorney fees incurred for the motions and hearings)
- The Court may limit or exclude evidence and/or exhibits that are needed at trial to present your case;
- The Court may limit or preclude you and your attorney from conducting discovery thus preventing the collection of evidence and facts from the opposing party The more thorough and complete that you are in responding, the more benefit can be derived from the process, including but not limited to:
- It allows your attorney to know all of the facts and information necessary to give you the best advice during your case;
- It allows your attorney to know what facts and evidence are possessed by the opposing party;
- It allows your attorney to evaluate your case and enables him/her to advise you regarding settlement negotiations;
- Request for Disclosure – This is a request for basic information of specific categories that is intended to apply to all cases.
- Requests for Disclosure – In most cases, the attorney will assist you with the answers to the disclosure requests, except for the request regarding “persons with knowledge of relevant facts”. Here you will list anyone who might be connected with the case, i.e., teachers, neighbors, accountants, counselors or anyone who might know facts about the issues involved in your case. The important thing for you to know is that while we may not call everyone listed as a witness at your trial, we are prohibited from calling as a witness anyone NOT listed in response to this question.
- Request for Admissions – This is a request that you admit or deny specific facts that are related to you case. It is not utilized very often and is designed to shorten the trial time by establishing facts to which there is no real controversy. In the majority of cases, when discovery is served, it will most likely be the Request for Production, Interrogatories, and Request for Disclosure, and they will be served upon you at the same time, though it is not required. What do you need to do to answer it? When we receive discovery requests that are being served on you by the opposing party, we log the date it was received and calculate and calendar the date by which you are required to respond. Upon receiving the discovery requests from our office, the first step is for you to read through each request in its entirety to make sure that you understand what information is being requested and so that you may ask us any questions regarding the requests at that time.
- Requests for Admissions – The attorney will go over these requests with you in detail and then you will simply and truthfully admit or deny the statement of fact requested. The Texas Rules of Civil Procedure require you to respond to each of the discovery requests on or before 30 days from when you are served with the request. However, YOU WILL NEED TO PROVIDE THE DOCUMENTS AND YOUR RESPONSES TO THE REQUESTS TO OUR OFFICE NO LATER THAN 20 DAYS FROM THE TIME WE PROVIDE THEM TO YOU. This is to ensure that our office can do what we have to do to in order to provide your responses by the required deadline. What do we need to do to answer it? Your attorney will review each request in its entirety and draft any legal objections that are applicable, if any, to specific requests. Your attorney will provide advice and guidance to you for answering each type of request that is served upon you and will answer any questions that you have.
To reduce the amount of your attorney fees, when responding to Requests for Production, organize and label the responsive documents by Request number and in order. Do not simply bring in a stack of papers and say “here are my responses”. It will take a significant amount of hours if we have to sort through the documents to determine which document is responsive to which request, and you will be billed accordingly.
WHEN ANSWERING YOUR DISCOVERY, KEEP IN MIND THAT OUR REPRESENTATION IS ONLY AS GOOD AS YOUR PARTICIPATION!!!!