Samples of Discovery in California
Whether you are currently involved in a divorce, paternity, legal separation, or other family law matter, discovery is an important process to gather information in the case. Our attorneys are divorce and family law experts and discovery procedure specialists. We have conducted every type of discovery in divorce matters with excellent results. Having a solid discovery plan is essential to any case where all the relevant information hasn’t been willingly provided. We answer the most common discovery questions below and are available by phone if you believe you may need legal assistance in your divorce case. For more information about discovery and how it may relate to your case, contact our office today by email or call us at (949) 955-9155.
What discovery tools are available?
There are a wide number of discovery tools available in family law cases that can be propounded to the other party or third parties. Family law and divorce litigants should be careful about being overly aggressive with propounded too much discovery, however, because there is a cost to conducting discovery. You don’t want to overspend on discovery if doing so will not be worth it in the end. Common discovery tools in divorce cases include the following:
- Demand for inspection of documents and tangible things – these are a list of demands for copies of documents usually including bank statements, other account information, life insurance documents, documents relating to real property or vehicles, etc.
- Form interrogatories – this is a form requesting the opposing party provide basic information such as employment, address, health insurance, and reimbursement requests.
- Special interrogatories – these are specially crafted questions for which the opposing party must respond under oath.
- Deposition – a deposition is usually an oral examination (although it can be in writing) of a person (can be either an opposing party or any relevant third person) under oath.
- Property inspection – with notice, a party can demand to inspect property controlled or occupied by the other party.
- Request for admissions – these are specially crafted requests that the opposing party must either admit or deny (for example, “Admit that you won the lottery on June 13, 2014.”)
- Subpoenas – these are demands for information sent to third parties.
What is discovery?
Discovery means information gathering, and the method to gather the information is through the methods listed above.
Are there any limitations to discovery?
Yes, there are many limitations to discovery. First, discovery must be relevant to the pending case. For example, a party cannot conduct discovery on the financial information of an opposing party’s new significant other, unless under a very rare circumstance.) Second, discovery must not be “vague”. This means that discovery must be narrowly tailored to that relevant information. Third, discovery cannot be “oppressive,” which means that a party cannot propound discovery after discovery in excess of a “reasonable” amount. Fourth, there are time limitations to conducting discovery. There are certain periods of time at the commencement of an action, for example, where the petitioner cannot conduct discovery. Similarly, there is a discovery “cut off” prior to trial. There are many other standard “objections” to discovery demands that may apply as well. It is imperative to have a qualified attorney either propounding or responding to the discovery.
Can discovery be conducted post-judgment?
Yes, Recently, it was required that the parties either have an agreement or court order allowing the discovery. The recent case of Bobblitt disallowed discovery after the entry of a judgment unless one of the two exceptions exist. However, the California Legislature recently enacted a revision to the Bobblitt case that takes effect January 1, 2015. Essentially, discovery will be allowed in any post-judgment case now so long as it is relevant and narrowly tailored, and as of January 1, 2015, family law litigants are once again permitted automatically to conduct discovery after a judgment has been entered.
What are sample template form Requests for Production of Documents?
Here are some sample requests for production and inspection of documents.
Start off with a paragraph providing general instructions for the recipient. Cite the applicable law, which is Cal. Code of Civil Procedure 2031.010, et seq. These set of statutes allow for the request for documents during dissolution of marriage cases, paternity cases, and other cases that fall under the Family Code.
Here are sample requests for financial information:
Provide all financial account statements, including but not limited to checking, savings, investment, deposit, credit, or other similar accounts, in your name or held for your benefit, from January 1, 2014 to the date of production.
Provide all documents relating to gross receipts for your business, “Mary’s Dry Cleaners”, from January 1, 2009 to the present.
Provide all documents that relate to the value of your home located at 5 Cherry Street, Irvine, California, from January 1, 2005 to the present.
Provide all profit and loss statements for all business you own or have an interest in from January 1, 2015 to the date of production.
Provide your last 6 months’ pay stubs.
Provide all appraisals for personal property that you have acquired in the past three years for items that you own or owned.
Here are sample requests for custody information:
Provide all documents relating to the Minor Child’s counseling appointments for the past three years.
Provide evidence of all co-pays that you have made on behalf of the Minor Child during this calendar year.
Provide all documents from the Minor Child’s school that have been written to you from January 1, 2016 to the present.
Provide all documents evidencing your child’s grades for the past two school years.
How do I respond to a Request for Production of Documents?
You must take great caution in responding to all discovery requests, including a demand for documents. Make sure you that you include every conceivable objection to the demand, in writing within your response. If you don’t make the objection, you lose the right to object later.
The content and form of your response is governed by CCP 2031.210. You have to do all of the following in your response:
- Respond to each demand separately.
- State whether you will comply, lack the ability to comply (and state why you cannot reply), or object to the request.
- State what “set” number of documents you are responding to.
- If you object to a request for “Electronically Stored Information”, also called ESI, you have to fully set forth the reasons for the objection and:
If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.
What are Special Interrogatories?
Special interrogatories are carefully drafted questions that are made in writing from one party to the other, and the recipient of the questions has to answer under oath. Special interrogatories are governed by CCP 2030.010, et seq.
Keep in mind that you can only ask 35 special interrogatories in any given case. If you want to ask more questions, you have to prepare a declaration stating why additional interrogatories are necessary. The declaration should state:
DECLARATION FOR ADDITIONAL DISCOVERY
I, __________, declare:
1. I am (a party to this action or proceeding appearing in propria
persona) (presently the attorney for __________, a party to this
action or proceeding).
2. I am propounding to __________ the attached set of
interrogatories.
3. This set of interrogatories will cause the total number of
specially prepared interrogatories propounded to the party to whom
they are directed to exceed the number of specially prepared
interrogatories permitted by Section 2030.030 of the Code of Civil
Procedure.
4. I have previously propounded a total of __________
interrogatories to this party, of which __________ interrogatories
were not official form interrogatories.
5. This set of interrogatories contains a total of __________
specially prepared interrogatories.
6. I am familiar with the issues and the previous discovery
conducted by all of the parties in the case.
7. I have personally examined each of the questions in this set of
interrogatories.
8. This number of questions is warranted under Section 2030.040 of
the Code of Civil Procedure because __________. (Here state each
factor described in Section 2030.040 that is relied on, as well as
the reasons why any factor relied on is applicable to the instant
lawsuit.)
9. None of the questions in this set of interrogatories is being
propounded for any improper purpose, such as to harass the party, or
the attorney for the party, to whom it is directed, or to cause
unnecessary delay or needless increase in the cost of litigation.
I declare under penalty of perjury under the laws of California
that the foregoing is true and correct, and that this declaration was
executed on __________.
_____________
(Signature)
Attorney for_____________________________________
Here are some sample interrogatories:
State each of your physical addresses for the past three years.
Identify your current employer or employers, including contact information.
Describe your current living arrangement, including but not limited to your address and identification of other persons living in your home.
Describe each source of income that you have received from January 1, 2015 to the present.
Identify each witness that you intend to call to trial in this matter.
Describe what happened on the night of April 13, 2016, which lead to your arrest.
State whether you have a Facebook page.
How do I respond to Special Interrogatories?
Just like other discovery requests, responding to special interrogatories must be done extremely carefully. You must state your objections to any interrogatory that is objectionable. Often, folks state their objections and still answer the interrogatory, writing, “Notwithstanding said objections, Responding Party answers as follows: __”.
Be very careful in how you answer special interrogatories because these answers are your sworn testimony. If you answer a question differently than you testify to later in court, it will be used against you. We recommend seeking the advice of a qualified attorney to help with responding to all discovery requests, including interrogatories.
What are some sample Requests for Admissions?
The purpose of a Request for Admissions is to pin the responding party into either admitting or denying a stated “fact”.
The “fact” stated doesn’t necessarily have to actually be a fact, it might be a “possible” fact that the requesting party thinks might be a fact. The stated facts usually start out with “Admit …” and then the fact is stated. The Responding Party then answers that they Admit the fact or Deny the fact.
Here are some sample Requests for Admissions:
Admit that you smoked marijuana on May 3, 2016.
Admit that you earned in excess of $100,000 in gross wages or salary in 2015.
Admit that you were arrested for driving under the influence or similar cause on or about May 1, 2015.
Admit that you cohabitate with a man who you are in a dating relationship with.
Admit that you opened an account at Bank of America in 2015.
Admit that you own one or more businesses that were not disclosed on your Schedule of Assets and Debts that you signed on June 23, 2015 (see attached document for reference).
How do I respond to Request for Admissions?
Responding to a Request for Admissions should be done carefully. All objections should be made in writing. If you are unsure what the stated fact is referencing or you don’t understand what the statement means, you should respond and state that you don’t understand.
Again, we recommend having the advice of an attorney when answering a request for admissions. Even if you hire the attorney on a limited scope basis, it will be worth the investment.
For additional information about discovery, contact our attorneys today. We provide a free, private consultation wherein we will listen to the issues you present and provide you with options that may be available to you.