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BASIC DISCOVERY
HOW TO DRAFT EFFECTIVE DISCOVERY
IN A DISSOLUTION CASE
David L. Jungmann & Melissa S. Larson
Iowa State Ba...
2
a. Professional privileges: attorney – client; physician – patient;
therapist – patient; clergyman – penitent; accountan...
3
c. If the protective order is denied, the court may enter an order
apportioning the expenses of obtaining the discovery,...
4
d. Interrogatories are inexpensive to prepare and forces the other party
to do the work.
2. Disadvantages.
a. Answers to...
5
Example: “In answering these interrogatories the respondent must furnish all
requested information, not subject to a val...
6
agreement, invoice, receipt, canceled check, drawing, sketch, or other similar materials
which contain any verbal, graph...
7
preferable to phrase the question such that the answering party must
respond with a “yes” or a “no.”
Example: “Do you cl...
8
F. Answering Interrogatories
1. Objections to Interrogatories. Objections must be filed within the time
prescribed for t...
9
a. First Principle. Under ordinary circumstances, the answers to
such interrogatories cannot limit proof at trial. Advis...
10
1. Compelling discovery is a three step process. You must first make an
attempt to resolve discovery issues prior to in...
11
3. You will need to identify the information and evidence you already have
and what specific information and evidence y...
12
and amount of each typically consumed in an average week during
that time.
c. State whether you wear eyeglasses, use a ...
13
f. the place you attended classes to obtain your G.E.D.
6. Organize your discovery requests around primary topics, such...
14
K. Spoliation and Duties to Preserve Evidence.
Spoliation is the intentional destruction of discoverable matter by a pa...
15
5. Consider a joint stipulation for admissibility.
Example: The parties hereby stipulate and agree that all portions of...
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Discovery outline 9-28-13

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Discovery outline 9-28-13

  1. 1. BASIC DISCOVERY HOW TO DRAFT EFFECTIVE DISCOVERY IN A DISSOLUTION CASE David L. Jungmann & Melissa S. Larson Iowa State Bar Association Family Law Conference October 24, 2013 A. Purpose of Discovery. The purpose of discovery is to avoid surprise and to permit issues to become defined and reduced before trial. Grace v. 3-D Mfg. Co., Inc., 522 N.W.2d 312, 320 (Iowa Ct. App. 1994). Discovery should expedite disposition of litigation by educating the parties in advance of trial of the real value of their claims and defenses. Barks v. White, 365 N.W.2d 640, 643 (Iowa Ct. App. 1985). Iowa R.C.P. 1.501(2). The rules of discovery are to be “liberally construed and shall be enforced to provide the parties with access to all relevant facts. Discovery shall be conducted in good faith, and responses to discovery requests, however made, shall fairly address and meet the substance of the request.” B. Scope of Discovery. See Iowa R.C.P. 1.503. 1. Any matter, not privileged, which is relevant to the subject matter, . . whether it relates to the claim or defense of either party, including its existence, description, nature, custody, condition and location, of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. “Reasonably calculated to lead to the discovery of admissible evidence.” Iowa R.C.P. 1.503(1). 2. Privileged matters.
  2. 2. 2 a. Professional privileges: attorney – client; physician – patient; therapist – patient; clergyman – penitent; accountant – client; journalist – news source. b. Business and administrative privileges: trade secrets and business confidences c. Criminal privilege against self-incrimination. The privilege must be stated and a description provided of the nature of the documents, communications, or things not produced or disclosed as will enable the other party to assess the applicability of the privilege or protection. Iowa R.C.P.1.503(5). 3. Trial preparation materials. Unless the information is discoverable under Iowa R.C.P. 1.508 (as expert witness information), documents and tangible things prepared in anticipation of litigation or for trial for or by the other party’s representative may only be discovered upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means. The most protected matters are the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his/her attorney. Hickman v. Taylor, 329 U.S. 495, 504 (1947). 4. Protective orders. Iowa R.C.P. 1.504. a. Allows the court to make any order which justice requires to protect a party or person from annoyance, embarrassment oppression or undue burden or expense. b. Allows the court to limit the frequency of use: if the discovery sought is, or may be obtainable from some other source that is more convenient, less burdensome or less expensive; if the party has already had ample opportunity by discovery to obtain the information; or if the burden outweighs the benefit.
  3. 3. 3 c. If the protective order is denied, the court may enter an order apportioning the expenses of obtaining the discovery, including attorney fees. Iowa R.C.P. 1.504(3); 1.517(1)(d) C. The Objectives of Discovery. 1. To capture and preserve evidence and information necessary to establish your claims and defenses. 2. To secure admissions. 3. To settle issues and disputes. 4. To prepare for impeachment of the opposing party and their key witnesses. 5. To perpetuate important testimony. 6. To identify witnesses and evidence for and against your case. 7. To authenticate documents. Ashley S. Lipson, Guerrilla Discovery, §1.40. D. Advantages and Disadvantages of Using Written Interrogatories 1. Advantages. a. Depositions are effective for obtaining spontaneous answers, but the answers are restricted to the deponent’s personal knowledge. Interrogatories call for the collective knowledge of the opponent and his/her attorneys. b. Interrogatories are preferable to depositions for identifying witnesses, documents, the dates and substance of transactions and conversations, or if the information sought can be obtained only by reference to several documents. c. Written interrogatories can frequently induce intelligent settlement discussions by establishing the contentions of the parties and exposing the strengths and weaknesses of their respective cases.
  4. 4. 4 d. Interrogatories are inexpensive to prepare and forces the other party to do the work. 2. Disadvantages. a. Answers to contention or opinion interrogatories are often the calculated response of an attorney. b. Answering a comprehensive set of interrogatories forces an opponent to prepare his case. c. Interrogatories can only be directed to a party. d. The greatest limitation upon the effective use of written interrogatories is the ability of attorneys to avoid providing any information which they feel will be damaging to the interests of their clients. This limitation is manifested in various forms: objections based upon allegations of privilege, work product, undue burden, irrelevancy; and objections that the interrogatories are vague, ambiguous and incapable of being answered; and answers that are unresponsive or are arguably responsive but self- serving. Adrian P. Schoone and Edward L. Miner, Marquette Law Review, The Effective Use of Written Interrogatories, 60 Marq. L. Rev. 29 (1976). Available at http://scholarship.law.marquette.edu/ mulr/vol60/iss1/2. E. Drafting Considerations. 1. Instructions inform the party of their duties under the Rules of Civil Procedure and lay a foundation for a later showing that failure to make discovery was willful and deliberate. a. The duty to conduct a reasonable investigation. Lack of personal knowledge is not adequate if the party could obtain the information by reasonable inquiry. A recital of the attempts made to secure the information should be provided. Breeland v. Bethlehem Steel Co., 179 F. Supp. 464, 467 (S.D.N.Y. 1959). A party cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his/her attorney. Hickman v. Taylor, 329 U.S. 495, 504 (1947).
  5. 5. 5 Example: “In answering these interrogatories the respondent must furnish all requested information, not subject to a valid objection, that is known by, possessed by, or available to him or any of his attorneys.” b. The duty to answer each interrogatory to the fullest extent possible, despite the fact that it may be impossible to provide all of the requested information. Example: “If the Respondent is unable to answer fully any of these interrogatories, s/he must answer them to the fullest extent possible and specify the reason(s) for his/her inability to answer the remainder, and stating whatever information, knowledge, or belief s/he has concerning the unanswerable portion. An evasive or incomplete answer is deemed to be a failure to answer and may render the Respondent liable for the expenses of a motion to compel discovery.” c. The duty to supplement responses. Iowa R.C.P. 1.503(4). Example: “The Respondent must supplement his/her responses to these interrogatories when so requested by the Petitioner prior to trial. In addition, without being requested to do so by the Petitioner, the Respondent must timely supplement the answers to all interrogatories requesting the identification of persons having knowledge of discoverable matters and the identification of persons expected to be called as expert witnesses at trial. Without being requested to do so by the Petitioner, the Respondent must also amend any answer when it is discovered to have been incorrect when made or when it is discovered to be no longer true and circumstances are such that a failure to supplement is in substance a knowing concealment.” d. Definitions are used also to clarify the exact nature of the information which is to be provided in the answers, to clarify and elaborate potentially vague and confusing terms and phrases, and to avoid unnecessary repetition. An example of a definition that would clarify vague terms: “Document” refers to any paper, book, record, electronically stored information, letter, memorandum, contract,
  6. 6. 6 agreement, invoice, receipt, canceled check, drawing, sketch, or other similar materials which contain any verbal, graphic, or pictorial information. 2. Avoid shotgun requests and boilerplate terminology not tailored to the particular case. For example, an interrogatory requesting the identity of “all persons having knowledge of discoverable matter” may be the language of the Rule of Civil Procedure, but it should be objected to as too broad and general as to permit answer without undue burden and expense. Romero v. California State Labor Commissioner, 276 Cal. App.2d 787, 81 Cal. Rptr. 281 (1969). Interrogatories that do not reasonably restrict the inquiry to a relevant time period would likewise be too broad. 3. Identification of persons. Many people plead ignorance to these requests despite the fact that the information is available to their attorneys. Statements given by a party or a witness must be provided to them. 4. Identification of documents. If an interrogatory merely inquires as to the existence, nature and location of a relevant, non-privileged document, then it must be answered. A response that only specifies the records from which the information may be derived is only valid where the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served. 5. Contention interrogatories. “Asking a party at a deposition for his/her contentions and conclusions of law as related to fact will usually be useless. In the vast majority of situations the deposed party would be unable to relate the facts to relevant legal conclusions. Since a party’s attorney cannot be deposed, interrogatories are the only way to get the information.” Comment, Civil Procedure – Opinion Interrogatories after the 1970 Amendment to Federal Rule 33(b), N.C.L. Rev. 695, 699 (1975). However, there are limits to the usefulness of contention and opinion interrogatories. Therefore, contention interrogatories have to be drafted with care to avoid self-serving answers. Confine the interrogatory to specific points of issue. Use them to narrow or sharpen an issue. Moreover, in many situations it is
  7. 7. 7 preferable to phrase the question such that the answering party must respond with a “yes” or a “no.” Example: “Do you claim that Petitioner has threatened, abused, neglected, denied critical care or endangered any child? If your answer is anything other than an unqualified “No,” then please state the details of each alleged incident of abuse or neglect, including but not limited to the following: a. The date of each such incident of abuse or neglect. b. The nature and details of each alleged threat, abuse, neglect, denial of critical care or endangerment. c. All documents, photographs, video or audio recordings evidencing or reporting such threat, abuse, neglect, and denial of critical care or endangerment. d. The name, address, telephone number and relationship to you of each person having personal knowledge of any fact asserted by you in your answer to this interrogatory and state which parts of your answer of which each person has personal knowledge.” In determining whether such interrogatories must be answered may be gauged by the question: “Would an answer serve any substantial purpose?” Taylor v. Sound Steamship Lines, Inc., 100 F. Supp. 388 (D. Conn. 1951). Test question: What are the pros and cons of the following interrogatory? Please describe your minor children concerning the following characteristics: a. character b. stability c. capacity and interest to provide the following needs for your child, including in detail her relationship with your minor child as it pertains to: 1. Emotional 2. Educational 3. Physical 4. Social 5. Moral 6. Religious 7. Material 8. Interpersonal relationships
  8. 8. 8 F. Answering Interrogatories 1. Objections to Interrogatories. Objections must be filed within the time prescribed for their answer. Schaap v. Chicago & N.W.R. Co., 261 Iowa 646, 155 N.W.2d 531 (1968). The objection must be specific enough to point out the reason why an interrogatory need not be answered, especially if the objection is based on privilege. Stover v. Central Broadcasting Co., 247 Iowa 1325, 78 N.W.2d 1 (1956). It is not a valid objection to an interrogatory that the information sought is within the knowledge of the interrogating party. Barks v. White, 365 N.W.2d 640 (Iowa Ct. App. 1985). 2. Vague or Overbroad Interrogatories. A court would usually sustain an objection. However, often the answering party is aware of the substance of the request. It is sometimes advisable to qualify the question prior to answering it. Example: “This interrogatory, as phrased, requests the identification of literally hundreds of documents, including defendant’s answer to the petition. To fully answer it would require much time and expense and would constitute an undue burden upon the respondent. However, the respondent is willing to identify at this time those documents which s/he presently relies upon in support of the above described contention. The respondent has not completed review of all possible documents relevant to this subject matter and, consequently, the following information is being provided without prejudice to the right of the respondent to produce as evidence at trial any subsequently discovered or subsequently drafted documents.” (Then identify documents which are presently relied upon.) Adrian P. Schoone and Edward L. Miner, The Effective Use of Written Interrogatories, 60 Marq. L. Rev. 50 (1976). 3. Fed. Rule 26(a)(1)(E): Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures. 4. Answering Contention Interrogatories.
  9. 9. 9 a. First Principle. Under ordinary circumstances, the answers to such interrogatories cannot limit proof at trial. Advisory Committee Note to Federal Rule 33(b). Beeck v. Kapalis, 302 N.W.2d 90 (Iowa 1980). “The principal question raised with respect to the cases permitting such interrogatories is whether they introduce undesirable aspects of the prior pleading practice, whereby parties were chained to misconceived contentions or theories, and ultimate determination on the merits was frustrated. . . . However, in exceptional circumstances reliance on an answer may cause such prejudice that the court will hold the answering party bound to his answer, e.g., Zielinkski v. Philadelphia Piers, Inc., 139 F.Supp. 408 (E.D. Pa. 1956).” b. Second Principle. The court may order that such an interrogatory need not be answered until after designated discovery has been completed. See Fed. Rule 33(a)(2). Example: What do you believe would be a fair and equitable division of the property and debts in this action? Please use the attached spreadsheet in responding to this Interrogatory. ANSWER: Property/Debt Value Award to Award to Basis of Claim 5. Option to produce business records. Iowa R.C.P. 1.509(3). G. Enforcing Discovery.
  10. 10. 10 1. Compelling discovery is a three step process. You must first make an attempt to resolve discovery issues prior to involvement of the court. you must then file a motion to compel discovery and get an order directing compliance by a date certain. Finally, you must file a second motion to request sanctions. Iowa R.C.P. 1.517(1). “Any order granting a motion made under this rule shall include a statement that a failure to comply with the order may result in the imposition of sanctions pursuant to rule 1.517.” 2. Sanctions the court may impose. Iowa R.C.P. 1.517(2). The court can designate certain facts as established. It can refuse to allow the disobedient party to support or oppose designated claims or defenses. It can strike pleadings. It can find contempt of court. Attorney fees and expenses may be awarded to either the proponent or the objector to the interrogatory. H. When to Use a Particular Discovery Method. 1. First, get as much information you can without engaging in formal discovery. 2. Mandatory disclosure of basic financial information per the Case Requirements Order. If you are in a district like ours, the courts have been issuing Case Requirements Orders in dissolution cases. In ours, within 60 days from filing suit, the parties are required to exchange documents evidencing income, certain expenses, assets and debts, but some litigants don’t comply. A few days later when you file your Child Support Guidelines Worksheet and Affidavit of Financial Status, you might add the following to your worksheet and affidavit: “This worksheet is a Preliminary Draft. Respondent’s income cannot be verified easily, and he has not complied with the disclosure requirements of the Family Law Case Requirements Order entered May 8, 2013, specifically those due August 8, 2013.”
  11. 11. 11 3. You will need to identify the information and evidence you already have and what specific information and evidence you need. 4. In planning your discovery you should identify: a. the Type of evidence, b the Stage of the evidence at this time; c. the Importance of the evidence to establishment of a fact ; d. the name, address and phone number of the Custodian of the Record; e. the specific Legal or Factual Issue to which the information or evidence relates; and f. then decide upon the Preferred Discovery Tool. I. Other Practice Pointers. 1. Because the other party has at least 30 days to compose their response you expect them to be sometimes evasive, so the interrogatories, requests for production or admission have to be drawn tightly. You want to force them to answer a question they don’t want to answer right now. Be precise as to the information you want. 2. If the requested documents to be produced are voluminous, you can respond by informing the other party that the documents are in your office and Respondent’s attorney may view and copy such materials as they may need at your office. Iowa R.C.P.1.509(3). 3. Although some information is protected by privilege, there are usually good reasons for getting at least some of the information that may negate the need to use the privilege. Example: “With regard to your physical and mental health please: a. State whether you currently use tobacco, alcohol, prescription drugs or illegal drugs, and if your answer to any of these types of drugs is anything other than an unqualified “No,”, then state the nature and amount of each typically consumed in an average week. b. State whether you have at any time within the last ten years used tobacco, alcohol, prescription drugs or illegal drugs. If so, then state the dates, inclusive that you used each such substance and the nature
  12. 12. 12 and amount of each typically consumed in an average week during that time. c. State whether you wear eyeglasses, use a hearing aide or other medical apparatus, and if so, state the type of apparatus and the average annual cost to you for such devices. d. State whether you have ever broken any bones, had surgery, been hospitalized for any physical or mental condition. e. State in narrative fashion what happened to cause you to have broken bones, surgery and/or hospitalization as to each incident, including but not limited to the date of each incident, the date such condition was diagnosed, the place of the incident causing injury, and the identity and contact information for the treating physician, clinic and/or hospital. f. Identify any recurrent problems for which you continue to obtain treatment or medicate and as to each describe in narrative fashion the symptoms of the problem, the diagnosis, the specific treatment and medications used, the frequency of medical review or examination of such condition, and the prognosis of the condition for the future. g. State the date, the name of the payee, the nature of the expense (e.g. prescription drugs, doctor’s care, etc.) and the amount of each out- of-pocket (unreimbursed) medical expense you have incurred on account of your medical condition and care in the last twelve months.” 4. All discovery should be tailored to the needs of your case. 5. You are permitted to organize the related questions around a single topic. Together with all discreet subparts, this will still only count as one interrogatory. Example: Please identify all schools that you have attended since your freshman year of high school, the dates (inclusive) of your attendance, highest level of education completed (e.g. 12th grade), major courses of study, honors received, and the degree or certificate earned. If you did not complete regular public or parochial school, then state: a. the last full grade of regular public or parochial school completed b. the date you quit regular public or parochial school c. the reasons you quit regular public or parochial school d. the date you began formal schooling to attain your G.E.D. e. the date you completed formal schooling to attain your G.E.D.
  13. 13. 13 f. the place you attended classes to obtain your G.E.D. 6. Organize your discovery requests around primary topics, such as the party’s education, career, criminal history, child custody or schedules for care of the children, income, property and debts, spousal support, etc. 7. Include contention interrogatories to establish facts and positions on key issues. 8. Seek identification of everyone having any information or knowledge of facts specific to the issue. J. Requests for Production 1. Not limited to number or frequency of use. See I.R.C.P. 1.512. 2. Can only be used to obtain information from parties to the action. I.R.C.P. 1.512(1). 3. Can be used to discover “tangible things” (“real evidence”) as well as documents. I.R.C.P. 1.512(1)(b). 4. Documents and things can be requested by individual item or by category. The key is to describe the documents and things with “reasonable particularity” so that you get what you want, little more than you need, and no less. 5. A party is deemed to have “control” if he or she has the right or ability to obtain possession. Riddell Sports v. Brooks, 158 F.R.D. 555 (S.D.N.Y. 1994). 6. Electronically stored information is presumed to be included in a request for “documents.” 7. Since July 1, 2008 obtaining medical records or images is governed by Iowa Code §622.10(4A). A request by an adverse party must be accompanied by a legally-sufficient patient’s waiver.
  14. 14. 14 K. Spoliation and Duties to Preserve Evidence. Spoliation is the intentional destruction of discoverable matter by a party which that party knew or should have known was relevant to pending, imminent or reasonably foreseeable litigation. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 491 (Iowa 2000). The duty to preserve evidence attaches as soon as litigation is “reasonably foreseeable. Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879 (S.D.N.Y. 1999). L. Tips for Drafting 1. Keep your media descriptions broad and your content descriptions narrow and specific. Example: “Please provide any and all statements of your financial condition used to establish or obtain credit, mortgages, promissory notes, security agreements, loan and credit applications, and other documents and records pertaining to or being evidence of any outstanding indebtedness, including but not limited to, mortgages, home equity loans, line of credit loans, vehicle loans, business loans, credit card accounts, charge accounts, personal loans, judgments, tax liens, and pending and threatened litigation against you.” 2. First identify those documents that are commonly requested and obtained for your particular issues (alimony, child support, property division, etc.), then describe any documents that are unique to your particular case, then add a “catchall” demand. 3. Your request must be clear and coherent enough to understand. 4. Don’t create needless barriers by describing the documents so narrowly that the responding party can play a shell game. For example, when describing particular documents and things, you might want to incorporate the phrase “including but not limited to. . . .” Ask for everything “in your possession, custody or control. . .” and don’t get tangled up “ownership or title.”
  15. 15. 15 5. Consider a joint stipulation for admissibility. Example: The parties hereby stipulate and agree that all portions of the documents and writings set forth on Exhibit “A” attached are relevant, genuine, trustworthy and admissible into evidence for purposes of the above-titled litigation. M. Responding to Requests for Production 1. Every objection to a notice for production should include at least two complaints: a) the request is overbroad, and b) the request is vague. 2. The same objections as are otherwise available when responding to interrogatories apply.

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