Posts Tagged ‘discovery’

I can neither Admit nor Deny that Statement…

Toward the end of the Discovery process, you may decide to serve the opposing party, or any other person that you are considering calling as a witness, with Request for Admissions. Request for Admissions are your chance to put words in the opposing party’s mouth. No, really, they are an opportunity for you to write down a list of asserted facts that the other party must either admit or deny. You can also use a Request for Admissions to ask a party to admit to the genuineness of any relevant documents or electronically stored information described in or exhibited with the request.   Request for Admissions are a great tactic to pin down information for use at trial. With a list of Admissions in hand, you can simplify the material you present to a judge and use the rest of your trial to focus on only the remaining controversies. A party has 30 days to admit or deny every statement asserted in the Admissions. Any items not expressly admitted or denied are deemed admitted. Therefore, it is critical that you pay attention to the time line.

If you are trying to establish the value of your spouse’s monetary property, you may serve your spouse with the following list of Admissions:

1. Admit that you have a savings account at Bank of America worth $1,372.

2. Admit that you have a money market account with Morgan Stanley worth $10, 562.

3. Admit that you have a retirement account worth $37, 209.

4. Admit that Exhibit A is a true and correct copy of the 2010 Federal Tax Return you filed with the Internal Revenue Service.

If the party admits an asserted fact, or to the genuineness of a specific document—that information is deemed true for introduction as evidence at trial. The opposing party cannot later change their mind on the witness stand to try to deny information they stated to be true in their response to Admissions. For instance, if the opposing party admits to a retirement account worth $37, 209—he cannot later testify that the account was only worth $700 bucks.

If the party denies an asserted fact—the denying party must also provide an explanation for each denial. Denied assertions may not be entered into evidence at trial unless the party requesting the admission proves that information to actually be true. If that occurs, the denying party may be on the hook for any costs incurred by the party that proved that fact to actually be true. Again, using the above example, if the party denies the existence of any retirement account, and it is later proved that there is in fact a retirement account worth $37, 209—the denying party may be liable for the legal fees and any other costs associated with proving the existence of the account.

There is a third possible response to a request for Admissions—neither admitting nor denying a statement. For instance, if you are using adultery as the grounds for your divorce and you ask your spouse to admit an affair. Extramarital sexual relations are technically illegal; therefore admitting to such behavior is tantamount to admitting a crime. In this case, the opposing party would not be required to admit or deny a statement because the right not to self-incriminate trumps the directive to answer the Admissions. This is why it is important to consult with an attorney prior to responding to Admissions.

Remember, responses to Admissions are often the final word on a subject—at least until a judge offers his or her view on it!

This is the final article in an ongoing series about Discovery. As always, we here at Delaney & Keffler, LLC will take the time to fully explain Discovery, and help you obtain beneficial information. Contact us today at 410-535-3476 (FIRM) or for a free consultation.

Diving Deeper with Depositions

Discovery is an ongoing process. Often times, little snippets of information provided in one stage of Discovery will spark a deeper investigation to gather more substance on the subject. In domestic cases, Interrogatories and Requests for Production of Documents often uncover bits of evidence that the opposing party will want to learn more about prior to settling or going to trial. There are two types of Discovery that may be used to delve deeper into one or more topics that are relevant to your domestic situation.

1.Depositions— A deposition is basically an interview conducted under oath. Depositions usually take place at an attorney’s office, and the opposing party’s attorney has a great bit of freedom to ask you questions, which you are required to answer. Everything said during a Deposition is written down by a Court Reporter, and turned into a written transcript which can later be used in court. Depositions may be videotaped, and the tapes may later be played before a judge.

If you get to the point where Depositions are being used it could be a sign that the stakes are high in your case. The important thing to remember is that a Deposition is under oath. As the saying goes, anything you say can and will be used against you in a court of law.  A Deposition is not the place to brag about an extramarital affair, or gloat about an offshore account. The opposing party will study the written deposition prior to a trial, and then may use the transcript to try to trip you up in front of the Judge. Be honest, be curt, and seek the advice of an attorney prior to your Deposition.

2. Records Depositions— A Records Deposition is actually more similar to a Request for Production of Documents than it is to an interview Deposition. Records Depositions are typically used when you need to gather information from someone other than the opposing party in your case. For instance, if you are involved in a custody dispute and the opposing party mentions in a response to Interrogatories that your child’s teacher has made notes related to your child’s feelings about living with you—you may use a Records Deposition to request that the teacher provide copies of those notes. A Notice of Records Deposition and a subpoena are served on the person from whom the records are sought, and then that person has 30 days to provide copies of the requested documents, or provide a time and location for you to inspect and copy the requested documents.

Records Depositions are a great strategic tool that allow you to gather information you need, without having to deal directly with the opposing party.

This is the fourth in an ongoing series about Discovery. Next week we will wrap up this series with an explanation of Admissions. As always, we here at Delaney & Keffler, LLC will take the time to fully explain Discovery, and help you obtain beneficial information. Contact us today at 410-535-3476  (FIRM) or for a free consultation.

Can they REALLY ask for THAT?

During the course of the Discovery process, you will be served with Requests for Production of Documents which consist of one or more written requests to provide access to documents or things. Often times, the Requests are served at the same time as Interrogatories (see article #2 in this series for more information on Interrogatories). A party has 30 days from the date of receipt to respond to Requests.

Requests for Production of Documents are used strategically, just like Interrogatories. You may be asked to provide copies of pay stubs to help the other side make their case for a certain amount of child support or alimony. You may be asked to provide hotel invoices or credit card receipts if there is question about an affair. It is not uncommon to be asked to provide three years of bank statements, or medical documents that may be related to your fitness as a parent or ability to be gainfully employed. You will be asked to provide any document you refer to in other pleadings or in your responses to Interrogatories. Looking over the list of Requests can be very overwhelming, but it is critical that you respond with accurate information. While you are not required to use an attorney, legal advice can be especially helpful in organizing and providing an appropriate response to these Requests. Failure to respond within 30 days may result in court sanctions that can limit your ability to fully plead your case.

There are three ways to respond to Requests for Production of Documents:

1.  Provide the actual documents or property for review. You can certainly go through the list of Requests, gather up all the documents, and plop them in the mail addressed to the opposing party. It is a lot of work on your end, but in most cases the other side does have the right to look at whatever they have requested. Whenever possible, you should retain a copy of the documents you provide, so you can be sure there is no foul play if they introduce the documents in court.

2.   Provide access to the actual documents for review. In some circumstances, there are either too many documents or the property requested is simply too cumbersome to actually deliver to the opposing party. Such a situation does not excuse you from giving the requesting party access to the things they’ve requested. You may, however, respond to the Requests with a date, time, and location that all documents and property will be available for review. You must provide a reasonable amount of time for the opposing party to gather the information they seek.

3.   Refuse to provide the actual documents or access to the documents. There are instances where it is within your rights to refuse to provide certain documents or property. For instance, if you are asked to provide emails that implicate you in a drug deal, you are not obligated to provide such emails because you have a right not to incriminate yourself. In these circumstances you may respond, within the 30 day time frame, with a refusal to provide certain documents as well as the reason that you refuse. Keep in mind that refusing to provide some documents does not get you out of providing the remaining requested documents.

This is the third in an ongoing series about Discovery. For the next few weeks, we will go more in-depth about this very important process. As always, we here at Delaney & Keffler, LLC will take the time to fully explain the Discovery process and help you obtain beneficial information. Contact us today at 410-535-3476 (FIRM) or for a free consultation.

The Four ‘W’s of Interrogatory Responses

Chances are you will be served with Interrogatories during the course of your divorce proceedings. Interrogatories are a part of the Discovery process. They are a maximum of 30 questions that must be answered in writing, under oath, and within 30 days of service. Failure to respond to Interrogatories can result in stiff sanctions. Strategy is important, both in asking and answering Interrogatories.  Remember, anything you say in your written responses can be used as evidence in court. Therefore, it is crucial that your Interrogatory responses are clear and concise. Keep in mind the Four ‘W’s of Interrogatories while you craft your answers.

1. What are you being asked to provide? Interrogatories are very specific requests. You may be asked where you lived between January 2008 and May 2009, or whether your job allowed you to work overtime in the past 12 months. In these examples, you would not want to respond with your current address, or whether you worked overtime two years ago. It is critical that you pay attention to the details in Interrogatory questions so you can prepare yourself to answer accordingly.

2. Why are you being asked for that information? The old saying about the devil being in the details applies here. Divorces are often amicable. But, when they aren’t, every little tidbit of information may have value. When you first look at the list of Interrogatories you’ve been served with, ask your self why your soon-to-be-former-spouse is interested in that information. Many of the questions are standard, used to simply obtain and organize basic information like your full name, current address, and current employer. Other questions get to the core of your marital and divorce issues. If, for instance, you are asked about your involvement in your childrens’ lives—a good assumption would be that a custody battle may be brewing. If you are being asked about your ability to earn income, there may be a discussion about spousal support on the horizon.

3. What information must you share? In general, you are required to respond to every reasonable question. Questions may not be considered reasonable if they are overly broad in nature, or have no reasonable relation to the divorce proceedings. If a question is reasonable, you must answer it to your best ability. For example, if an Interrogatory asks you to list every item of property in which you have interest, how it is titled, the value, and the date you acquired each listed item, you need to respond with a detailed list of everything  of value that you own—not just your car and house. Remember, Discovery is ongoing so you have an obligation to update any of your responses as the information contained within changes.

4. What information should you keep to yourself? Strategy is the name of the game. There is certain information that you may be asked to provide—like evidence of an affair—which you have a legal right not to respond to. It can be tricky because there may be parts of single question that a Judge would require you to answer, and other parts of that same question that you would not be required to answer. If you really feel like a question asks for too much or incriminating information, an attorney can help you craft a response that meets the legal requirements for responding to Interrogatories without giving away too much information.

This is the second in an ongoing series about Discovery. For the next few weeks, we will go more in-depth about this very important process. As always, we here at Delaney & Keffler, LLC will take the time to fully explain Discovery, and help you obtain beneficial information. Contact us today at 410-535-3476  (FIRM) or for a free consultation.

What’s with the Inquisition?

If you are involved in a domestic litigation case, somewhere along the way you will most certainly be involved in a process known as Discovery. Discovery can begin as early as the filing of the initial complaint, and continue right on up through the final hearing. Although the process may seem overwhelming, it is very important that you provide all requested information to your attorney in a timely manner. Failure to respond to Discovery can result in severe sanctions, including a court ruling that precludes you from introducing critical evidence at trial.

Maryland has very liberal rules about what information is discoverable. Any information that can lead to admissible information is discoverable. That means that an opposing party can request information that it cannot present in the court room, so long as that bit of information will help them learn something else that that they can present in the court room.

There are five types of Discovery:

Interrogatories—A maximum of 30 questions, presented to an opposing party in writing. A party has 30 days to respond to all of the questions, in writing and signed under oath. An attorney will help craft appropriate responses in a manner that protects a client’s legal rights, including the right not to self-incriminate (“Pleading the fifth”).

Requests for Production of Documents—Any number of written requests for access to documents or property. A party has 30 days to respond by providing copies of the documents or property, or providing access to the documents or property. Under certain circumstances, access may be denied with an acceptable reason.

Depositions—An interview under oath, usually conducted after Interrogatories and Requests for Production of Documents are completed. Answers are recorded, and may be used against you during litigation, especially if your answers during the deposition conflict with your answers at trial.

Records Depositions—A Records Deposition is very similar to a Request for Production of Documents. However, a Records Deposition is usually used to request documents from a non-party to a case. Also, unlike Requests for Production of Documents, a Subpoena is required and must be properly served on the person that controls the sought after documents. A person has 30 days to respond to the Subpoena by providing the requested records or providing access to the records.

Request for Admissions—Request for Admissions are written statements that the opposing party must either admit or deny. Any statements that the party fails to respond to within 30 days are deemed admitted. Admitted statements are accepted as truth during trial proceedings.

This is the first in an ongoing series about Discovery. For the next few weeks, we will go more in-depth about this very important process. As always, we here at Delaney & Keffler, LLC will take the time to fully explain Discovery and help you obtain beneficial information. Contact us today at 410-535-3476 (FIRM) or for a free consultation.