Many of these blogs are inspired by young attorneys I am informally mentoring. This one was inspired by a query as to the sort of discovery I issue in a family law case. After seventeen years of practice, I still lack a completely satisfactory answer to that question.
I have at least five goals in issuing discovery: 1) learn what information the other side intends to provide at trial; 2) learn the opposing party’s position on contested factual issues; 3) obtain information in the other party’s control that might be helpful to one’s own case; 4) attempt to obtain useful admissions from the opposing party that can be employed at trial; 5) obtain information from the opposing party that can be employed to impeach that party’s credibility (and the credibility of that party’s witnesses). Discovery should be tailored with these goals in mind.
Obviously some of the information one seeks is related to the type of case one is handling. Discovery for a property division case should be different than discovery for a child custody case. However, should discovery employ a shotgun approach (seek everything and sift through what you obtain) or a rifle approach (figure out what you want to know and seek only those items)? A shotgun approach often leads to the retrieval of much irrelevant material and will typically not have the opposing party seeking out information within that party’s control but not within that party’s possession. A rifle approach more reliably obtains the information being sought but can leave a party unprepared at trial to deal with issues that party had not anticipated in discovery.
Standard Interrogatories/Requests for Admissions
There’s only two issues in family law discovery that I am completely sure of: 1) always issue standard interrogatories; 2) never use form requests for admissions.
One should routinely issue standard interrogatories. Simply knowing the witnesses a party may use at trial, what those witnesses will testify to, what experts that party may use, and what evidence that party may present eliminates many surprises at trial.
There is simply no intelligent way to develop a form request for admissions. The facts of every case are unique and a good request for admission requires an understanding of each case’s unique factual disputes. Sadly, I start with the assumption that most opposing parties will lie rather than admit a fact that is damaging to their case. Thus, a good request to admit is akin to a trap in which the opposing party is left with a choice between admitting something unhelpful to that party’s case or being painted as uncredible at trial.
For example, a request to “Admit or deny that the Defendant is a lousy parent,” is worthless because the Defendant will never admit it and the Plaintiff will have no use for the Defendant’s denial. However, where a Plaintiff has numerous credible witnesses willing to attest that the Defendant has routinely used cocaine in the past year, a request to “Admit or Deny that the Defendant has routinely used cocaine in the past year” may be very helpful. An admission allows the Plaintiff to conclusively prove this fact at trial. A denial can be countered with the numerous witnesses to the Defendant’s routine cocaine use to show the Defendant is both a cocaine user and a liar.
In drafting requests for admissions one should seek admissions on useful facts that one still has independent evidence to substantiate…or at least appears to have such independent evidence to substantiate. One can also use a request to admit to bluff an opposing party into admitting a fact one might not have the evidence to prove so long as the opposing party believes one might have that evidence.
The shotgun approach
There are numerous problems with the shotgun approach to discovery. The first is karma–or what goes around comes around. Send out a voluminous request for production and don’t be surprised when the other party sends that same request back. Further, while the South Carolina Rule of Civil Procedure related to document requests, Rule 34, requires a party to make available for inspection all records within that party’s “possession, custody or control” it only requires that party to “produce them [the requested documents] as they are kept in the usual course of business.”
An issue arises when one requests documents that are in a party’s control but not within his possession or custody. I consider documents that a party can retrieve online as being within that party’s possession. But what about records such as a party’s medical records or old banking records that are not available online but are within that party’s control (that is, the party has the right to ask the custodian of these records to provide them)? Does a party have an obligation to obtain these records at his own expense to comply with a request for production?
The law isn’t clear on this but I have always taken the position that a proper response to such a request to produce is to note where the record can be obtained and let the other party know they can subpoena these records. As these record are kept by some third party “in the usual course of business” I believe this response is proper. Thus an attorney who sends out voluminous requests for production is likely to receive few actual documents but many addresses where records can be subpoenaed. Opposing attorney have threatened motions to compel for such responses but, to date, none have been successful. However, various family court judges might have a different opinion on this issue and the South Carolina appellate courts have yet to weigh in.
Another problem with a shotgun approach to discovery is that one needs to “keep one’s powder dry”[no idea why discovery lends itself so well to gun metaphors]. In South Carolina one is limited to 20 requests for admissions that aren’t related to the authenticity of records and 50 supplemental interrogatories. Using supplemental interrogatories and requests for admissions from a form file at the beginning of the case may prevent one from taking a more tailored approach to discovery later in the case.
I routinely receive discovery that appears to have been generated from some attorney’s form file with little tailoring to the factual issues in dispute. This is a signal that the opposing attorney isn’t really thinking about the case. A child modification custody case in which the bulk of discovery requests are for old tax or bank records is not only a waste of a limited resource, it signals a lack of attention that can be useful in gauging the other side’s ability to actually try the case if it doesn’t settle.
A final problem with the shotgun approach is that voluminous and vague discovery requests lead to voluminous and vague responses. The requesting party is more likely to receive much irrelevant material and miss out on some highly relevant information when a discovery request is open to interpretation.
The rifle approach
The rifle approach is certainly more thoughtful. Tailoring discovery requests to the type of case and the factual disputes at issue demonstrates an attention to the case that encourages favorable resolution and reduces the risk of receiving voluminous irrelevant information while missing the few important items. A request for “all communications between the parties” is likely to lead to a response producing whatever responsive documents that party has on-hand. A request for all “emails between the parties from 2009-present discussing the minor child” is going to make it harder for the responding party to omit requested information.
The big problem with the rifle approach is that one frequently misses out on receiving information one later realizes one might have liked to receive. Over the years I have developed and refined my form interrogatories and requests for production on most family law areas. Many of the refinements were based on problems I encountered during trials. At one trial the opposing party suddenly sought contribution towards her student loans and I realized my discovery had sought no information about which debts she considered marital (there had been no mention of student loans in any of her settlement demands). A request for production was immediately added to my form file to make sure I sought information regarding any debt a party might seek contribution towards at trial.
Still, even after 17 years, I don’t have a set of form discovery requests that sufficiently allow me to understand the opposing party’s position on property division and do not believe it is possible to develop a set of discovery requests that would allow me to fully understand the other party’s position on alimony or child custody. In those cases I either need to go to trial with incomplete information or go through the trouble and expense of deposing the opposing party. While case specific interrogatories and requests for production can provide useful information, they will not provide complete information.
Conclusion
There’s no single correct way to prepare discovery requests for a family court case. Typically, I employ a few shotgun requests specific to the type of case (custody interrogatories for custody cases; child support requests for production for child support disputes) in order to make sure I receive any information that might be useful that is within the other party’s actual possession. I uniformly issue standard interrogatories. I then try to employ a rifle approach to get the information specific to the unique factual disputes of the case. However, even after seventeen years experience, my practice of family law discovery is nowhere close to perfect.
For those who like the “rifle approach,” my favorite form for discovery request is “In regard to paragraph five of your complaint (or answer or affidavit) in which you allege . . ., please state . . . .”
Please state what?