Discovery and Disclosure

Discovery and Disclosure

Show Topic

This show aired on June 4, 2017. It was hosted by David Enevoldsen and co-hosted by Shelley Rosas, an associate with the Family Law Guys. David and Shelley discussed disclosure generally, including what must be disclosed and the use of hearsay in family court. They also discussed the use of various discovery mechanisms such as depositions, interrogatories, request for production of documents, requests for admissions, subpoenas, and evaluations by third party experts for mental health or vocational fitness. They also discussed defenses to various discovery mechanisms or failure to comply with discovery mechanisms such as protective orders and motions to compel.

Headlines

Headlines on this show looked at the new trend of taking divorce selfies during the divorce process and the fact that Taiwan’s Constitutional Court ruled that same-sex marriage is legal in Taiwan making Taiwan the first location in Asia to recognize the legal validity of same-sex marriage.

Did You Know

This show’s Did You Know looked at data that was correlated by Tinder with Facebook to generate information about the top 15 professions that people were attracted to in the two sexes.

Transcript of the Show

Speaker 6:                         The discussions and information provided in Family Law Report are intended to be general in nature and/or not directed for any individual circumstances. No attorney-client relationship is being formed through this program. If you need legal advice your particular circumstances can vary from what is presented here, and you should seek the advice of an attorney licensed to practice in your state.

Speaker 7:                         Welcome to the Family Law Report, the show that explores issues related to marriage, divorce and children, hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now here is your host.

David E.:                             Good morning everyone, and welcome to Family Law Report. I'm your host David Enevoldsen, here with you every Sunday at noon on Independent Talk 1100 KFNX. Here in Family Law Report we talk about all the current topics of family law and that can range from what's going on in the political arena, to just some basics about nuts and bolts of a family law matter. I am a practicing attorney. I work, not surprisingly in the area of family law, and when I say family law I mean basically anything related to marriage, divorce, fights over custody of children, child support, prenups, anything of that nature. I'm a partner at a law firm here in Arizona called Family Law Guys, and we focus principally on helping divorcing parents avoiding getting screwed out of time with their children. We have offices in the Phoenix area here, and while we don't practice outside of Arizona if you want to call us and schedule an appointment to talk about your case, you can do so by calling 480-565-8680 or you can check us out on our website at www.familylawguys.com.

                                             On today's show we are going to get back to some basic stuff and we're going to talk about disclosure and discovery, what that means, what kinds of things you have to disclose, what kinds of things you can find during a family law case, and I'm joined today by my co-host Shelley Rosas. Shelley.

Shelly Rosas:                     Good morning or afternoon actually.

David E.:                             You almost has it this time. Shelley, every week says good morning even though it's technically afternoon, except for last week she had it down.

Shelly Rosas:                     I woke up earlier last week.

David E.:                             At least you caught it this time. All right, before we get in to our [inaudible 00:04:00] topic, we're going to do headlines and then our Did You Know? In our headlines we just kind of explore what's going on in the news right now related to family law. One of the things that is sweeping, I found this very interesting, there was quite a few articles out there about it, are divorce selfies. Have you heard of these, Shelley?

Shelly Rosas:                     Yes, I have actually last week.

David E.:                             You're with your phone over there, what's going on?

Shelly Rosas:                     I know. I wasn't expecting this.

David E.:                             Divorce selfies, if you have not heard of them, and I only just recently heard of these are ... the basic idea is you're getting a divorce, you're in the midst of a divorce, you're going down to the courthouse with your soon-to-be ex spouse, and maybe you're just walking out of the courthouse having gotten your divorce decree and you do a selfie. Typically, the selfies are the two of you kind of showing the divorce decree, you're sitting in line waiting to get called out to get your divorce decree, and most of the pictures are happy. There are people smiling and saying, "Hey look, we're getting our divorce," in some of them. If you just Google divorce selfies you can see a ton of this out there, and there are always, kind of have a positive spin, at least all the ones that I saw did.

                                             I even saw one that said, "I'm always going to love this guy, but I'm so happy we got this divorce." Then you take a picture and you post it on social media somewhere. It can be Instagram or Facebook, something like that, and you basically tell everybody, "Hey look, we just got our divorce. It's awesome, yey!" It reminds me a lot of the divorce cake fad that was going around a little bit back, where people would have divorce parties and they would get these divorce cakes. The thing that I like about this over the divorce cake approach is that even then it had a very negative spin, and these divorce selfies have a very positive spin, which seems very different to me. With the divorce cakes, if you haven't seen those, there was a lot of stuff where it would be one spouse murdering the other one on top of the cake or throwing people in the trash can. It was always this kind of negative thing, and what I really like about the divorce selfie concept is that you're taking this otherwise potentially negative thing and seeing something super positive about it.

                                             Now interestingly, in my mind I think that a lot of people believe that a divorce or family matter has to be this horridly negative or high-conflict event, in fact if you Google some of these articles that are talking about the divorce selfies they talk about it being awkward or weird or uncomfortable talking about divorce selfies as a collective. It seems to be that, and to me, that people are looking at the divorce selfies and they are just coming in to conflict with the very idea that somebody could walk out of a divorce or a family law matter having a positive experience, which just clashes with people's ideas. I think that at its core is a big thing that creates some of the conflict, because we go in with the expectation that it has to be this fight, that if you're getting a divorce you have to annihilate your significant ... your soon-to-be experience or other significant other, and that it's going to be this fight.

                                             Just yesterday, and this is one of the things that I like about this, is that it's putting this positive spin in to it, just yesterday Shelley and I got into what I could think would be construed as an argument, and at the end of it she basically started saying [crosstalk 00:07:15] some positive things about me, which I felt changed the dynamic. She started, rather than us just continuing to butt heads she said a few positive things by message to me, that I was amazing in whatever way. I don't remember if that's the way she said-

Shelly Rosas:                     They were very true things.

David E.:                             But-

Shelly Rosas:                     I couldn't understand where he was going in this argument, we were spiraling down quickly.

David E.:                             But the point in my mind was rather than continuing to just say, "Oh, well, David is this crazy person and I'm just going to write him off," she instead said, "Oh, David's good in these particular ways," and it completely altered the dynamic in my opinion of what was going on. One of the things about this divorce selfies that I like is it's doing exactly that, rather than focusing on all the negative potential things that you could do you're putting this positive spin on that. You're showing some gratitude to the other person, and that can pave the road for what your relationship is going to be like down the road, especially if you have children you need to maintain a positive relationship with your ex, if it's at all possible.

                                             One of the other things in a related sense that this speaks to me on is that people are, I think, natural storytellers. We love to tell stories. We love to convey things in stories, in marketing they will often tell you, "You lead with a story because that's what people cling to." The media with movie and television is a huge thing with us. We love to watch all these stuff because of stories that we're telling us, and they shape the way that we perceive the world. They shape the way that we perceive interactions with other people, and I think it reinforces the story that you tell about what's going on in your relationships, reinforce what's happening in the future interactions with this person. Here is a common one, there's the voice, I hear this all the time from clients, Shelley. Have you heard the voice or do you know what I'm talking about?

Shelly Rosas:                     Yes.

David E.:                             What am I talking about?

Shelly Rosas:                     No, I don't know. Explain it, but yeah, I've heard the voice, [inaudible 00:09:06].

David E.:                             Inevitably when you're going through some family law matter the client's going to come to you and say or our friend that's going through it is venting to you or whatever, they're telling you a story about what's happens. Let me just make something up. Let's do a role play, let's say Shelley is my baby mama, and I come to her, and I'm five minutes late for a parenting exchange and you say, "Hey David, why were you five minutes late?" I say, "I don't know, I just was." Then you walk away and you're going to tell your friend, "Oh my God, he was five minutes late, and you know what I said? I was like, 'Why were you five minutes late?' And he goes, 'I don't know, I just was.'" You alter the voice of the person that you're talking about such that it's not really the tone they were using, but it makes them sound like a bad guy or unreasonable or pompous or something like that.

                                             I hear that constantly where the client comes to you and tells a story where they're shifting the voice to make it sound better. I think, my personal belief is that, that's part of the storytelling function that human beings have where we try to align everybody we're talking to with us to say, "Oh, this other person is a terrible person and I'm going to add it to my story in such a way that," what?

Shelly Rosas:                     I want to talk.

David E.:                             Okay, go ahead. You should just talk.

Shelly Rosas:                     I have a Master's Degree in Education and part of my Master's Degree ... the focus was secondary reading or higher level reading and thinking for people who can already read well and decode. It's more about reading comprehension, and the biggest key factor in how we perceive and comprehend the world around us is our prior experiences and our perspectives, we build a scaffold in our lifetime of all of our prior experiences. Whenever I have these clients in the office I always know that I'm listening through their filter, and it's funny that you say that they attribute the voice or whatever the impact is because that would just ... I mean, I think too that they shift based on what their perspective is, and that they really believe that's the reality, even though that may not be the reality the other people would observe, third party observers.

                                             I see that all the time and I just remind myself of that scaffold that's been built over all of those years, and trying to see through the scaffold or help them break it down or take it for what it's worth, or reflect back to them what I hear from them so that they-

David E.:                             Well, the cool thing about this divorce selfie trend in my mind is that it creates a scaffold that's much more positive, you don't have this history of negativity that everyone otherwise will dwell on. It's like, "Oh, look, we were happy when we walked out of the divorce. I still care about this person, but we're just not married anymore." I like that a lot.

Shelly Rosas:                     I've been called the marriage whisperer, I've sent so many people like-

David E.:                             The marriage whisperer.

Shelly Rosas:                     Yes, they come to me for divorce services and they don't get divorced.

David E.:                             All right, I just want to have [crosstalk 00:11:54] one other quick headline because we're getting down here, and I don't want to feel remissed if I've only got one headline in the mix here, but divorce selfies, I think are a cool trend and if you're getting a divorce you should go do that.

                                             One other just quick headline. Taiwan, their constitutional court apparently just ruled that same-sex marriage is allowed and that made Taiwan the first place in Asia to recognize the legal validity of same-sex marriages. As I'm sure everyone's aware the US has already constitutionally recognized the validity of same-sex marriage, and apparently this still nowhere near fruition in Asia. Taiwan is now just kind of broached that, and they are now the first.

                                             We are going to take a quick break. I'm Attorney David Enevoldsen, joined by my co-host Shelley Rosas, when we come back we're going to be talking about ... we're going to do our Did You Know?, and then we'll talk about discovery and disclosure in family law matters. If you want to call in and ask any questions you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.

Speaker 10:                       Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children, this can range everywhere from addressing the legalities and controversies of topics like gay marriage to [inaudible 00:13:10] the divorce system, to simply providing tips to those getting married or going through divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX, if you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys call 480-565-8680, that's 480-565-8680. 

David E.:                             Welcome back to Family Law Report, I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm here with you every Sunday at noon on Independent Talk 1100 KFNX. I'm joined today by my co-host Shelley Rosas, who works for the same firm as myself. If you want to reach out and schedule an appointment with our firm to talk about your case, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions, share your thoughts, tell me how amazing I am, you can do so by calling 602-277-KFNX. Today we are talking about discovery and disclosure, the nuts and bolts of that in a family law proceeding, and we'll get to that right after we do our Did You Know?

                                             Did You Know? is the part of our show where we talk about some sort of family law trivia or some little known facts and sort of statistics, something interesting about the family law universe. Sometimes it's something vestigial, sometimes it's just something current about statistics or whatever. Today we are going to talk about some interesting data compiled by Tinder. Now, of course relationships are an inherent part of family law, and relationship start when you think someone else is attractive or sexy on the other side. Well, Tinder ... If you don't know what Tinder is, it's a ... I think most people know what it is, but just as a background, Tinder is a pretty popular dating app.

                                             Basically what it is, is you create a small profile on and you download it on your phone, and then you go in and you can see other people that are in Tinder. You basically just see their picture or series of pictures, and if you ... if they seem appealing to you, if you find them attractive you swipe the picture to the right, if you don't find them attractive you swipe the phone to the left. Once you've done that you can't actually talk to the other person unless they have swiped right and you have swiped right. Basically you're both saying that each of you thinks the other one is attractive.

Shelly Rosas:                     I want to know why David knows this.

David E.:                             Everyone knows this.

Shelly Rosas:                     No, everyone doesn't know this.

David E.:                             Okay, well, I don't know ... I just saw this in a sci-fi program recently that ...

Shelly Rosas:                     You thought you should defend yourself there.

David E.:                             Well, you're wondering why I know this. I thought everybody knows what Tinder is.

Shelly Rosas:                     Well, everyone knows what Tinder is, I'm just wondering about the swipe right, swipe right, and you can't talk unless you both done it.

David E.:                             Well-

Shelly Rosas:                     That's a lot of detail.

David E.:                             I think you have to know that part of it too to understand what I'm about to talk about.

Shelly Rosas:                     My whole role is just to hassle you, you know that.

David E.:                             Are you going to tell me you haven't used Tinder?

Shelly Rosas:                     I have not.

David E.:                             Is it like some shameful thing to use Tinder?

Shelly Rosas:                     I don't know. I don't know these details of Tinder.

David E.:                             Granted, Tinder does, I think have sort of a reputation as being a "hook up site," which is like less relationship-focused and more ... but my understanding is [crosstalk 00:18:52] lots of relationship actually spawned out of Tinder, and I've known people that have met through Tinder that turned into relationships. I'm not sure that it's necessarily just that, [inaudible 00:19:02]. Here is the point of what I was trying to say here, Tinder went through and pulled up a bunch of data where if you're going to Tinder you can correlate your app with Facebook. They harvested data from Facebook based on their users and what their professions were, and then correlated that with what the people that were interested in them, men or women, were swiping right on the most.

                                             In effect then, what they were able to find was the Top 15 Professions that people were finding as attractive in the Tinder universe, which I think is super interesting because this is actually dealing with real world data in terms of what people are actually reacting to as opposed to what they are saying that they are interested in. I've seen a bunch of other scenarios where people would go to men or women and say, "What do you think are the most attractive professions?" There are some standards ones, I always heard pilot, lawyer, doctor if you're a guy, that's what women usually want or if you're a woman I guess ... if you're a man and you're looking at a woman they could be something like flight attendant or nurse, I think some of those are the characteristic ones that I was seeing online. Well, here Top 15, I'll just look at the top couple here just so it's ... because I thought this was all really interesting. Now I'm going to go to the Top 11 because lawyer is number 11 on this list.

Shelly Rosas:                     I saw that. I saw that.

David E.:                             Let me go backward. Lawyer showed up as number 11, which I find very disappointing for people interested in men, and also note that this data didn't look exclusively at women looking at men or men looking at women. I think it was just anyone interested in the opposite or anyone interested in that other sex. Number 11 for people interested in men was lawyer, number 10 was college student, number nine was paramedic, number eight was, I guess not surprisingly, model, number seven was engineer, number six was teacher, number five was TV or radio personality, which also makes me feel good.

Shelly Rosas:                     You should be feeling really good today because I gave you a long list yesterday.

David E.:                             Yeah ... What?

Shelly Rosas:                     Nothing.

David E.:                             You gave me a long list?

Shelly Rosas:                     Of the great things about you.

David E.:                             Oh, the compliments, we're back to that now. Number four was doctor, number three was firefighter, number two was entrepreneur or founder of a company, and then number one was pilot, which sort of the same stuff with some of the stuff that we were seeing in what people or what I saw in people just saying, "Here is what I'm interested in." That's people interested in men,

                                             If you're looking at women number 11 was dental hygienist, number 10 was model, not a shocking one. Number nine was social media manager, number eight was pharmacist, seven was speech language pathologist, number six was college student. I'm interested how these college student things pop up, I guess maybe because they're younger and people find them more attractive. I don't know what that is. Number five is teacher, number four is PR or communications type employee, number three is the founder or entrepreneur of a business, number two is interior designer, that one was interesting, and then the number one profession for women was physical therapist. If you're a man and you're a pilot you're in great shape, if you're a woman and you're a physical therapist you're in great shape. That's out Did You Know? for today. I thought that was all very interesting data.

                                             Our show topic for today is we were going to get into the nuts and bolts of disclosure and discovery. Just in a nutshell this is just getting down to the basics of a family law proceeding, in a nutshell disclosure ... Let me explain the difference first. Disclosure is you disclosing what you have that's either relevant to the case or that you could be using in the case. It's in essence you saying, "Here's what I have," putting everything on the table and just ensuring that there is no surprises. Part of the idea with disclosure is that if you're going to litigate something and you're walking into a court you're not playing trial by ambush. Everybody knows what's there, there's not some secret. Sometimes one party has all the information and the other one doesn't, very often for example in divorces you've got somebody's holding on to the tax returns and the other party doesn't have those. It's much easier if you just say, "Hey, here is the tax returns," because that can be very relevant for purposes of financial stuff.

                                             Disclosure can also be, "Hey, if I'm going into the trial I'm going to introduce my witnesses. Here is what they are. I have expert witnesses, here is what they are." If I've got particular exhibits I want to introduce as evidence, "Here is what they are." That's disclosure, it's saying, "Here is everything I have. Here is everything that could be relevant. Here is everything that I might be using."

                                             Discovery, in contrast is it's similar but it's you affirmatively going out and seeking things that you could be using or that could be relevant to your case. That could be you going out and finding these documents that you don't otherwise have, or finding evidence, finding experts to talk, that sort of thing.

                                             Let's talk about disclosure first, Rule 49, which is something Shelley is super excited about, in fact this was her idea to talk about Rule 49 specifically. In a family court proceeding there are certain things technically that just have to be disclosed in a vacuum. There is the, your basic decisions on some of the issues, if you have child stuff going on you've got to explain what your positions are on legal decision-making, parenting time, child support. You have to disclose your basic bank statements and typically that goes back about six months. Most of the things that they ask for in the generic disclosure statement section go back about six months. Part of the reason for that is that finances are super relevant to what's going on in a family law proceeding, it can impact things like child support, it can impact thing like spousal maintenance, understanding what all the finances are.

                                             Sometimes you can find things that you didn't even know about. Sometimes your spouse was hiding money and being able to see bank statements can reveal some of that stuff, can show you were things are going. It can also feed into questions about attorney's fees. There's a lot of stuff that, that can spin around. Sometimes when you have self-employed people you don't know exactly what their income is, and it can help you figure out a lot of that stuff. Going back and constructing what somebody's been making on a regular basis can help you figure out what they should be average at for purposes of calculating child support or something like that. Being able to just have a lot of those basic financial records is super important. You also, the same sort of thing you're required to give up if you own a business, you profit and loss statements for the same basic reason. You can go back and sort of construct all these stuff.

                                             If you have witnesses, expert witnesses then you have to disclose that stuff before trial. It usually has to be a pretty significant time before trial, anything of that nature. You have to itemized out your exhibits. What are you doing? I don't know, you're like holding your phone up that's like-

Shelly Rosas:                     I'm getting better connection.

David E.:                             All right, that's basically what disclosure is. We will talk about discovery in just a sec. We're going to take a quick break. I am Attorney David Enevoldsen, joined by my co-host Shelley Rosas, when we return we will be talking about discovery and disclosure in family law proceedings. If you want to call in and ask any questions you can do so by calling 602-277-KFNX. You are tuned into Family Law Report on Independent Talk 1100 KFNX.

Speaker 10:                       Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children, this can range everywhere from addressing the legalities and controversies of topics like gay marriage to [inaudible 00:29:04] the divorce system, to simply providing tips to those getting married or going through divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX, if you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys call 480-565-8680, that's 480-565-8680. 

David E.:                             Welcome back to Family Law Report, I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm here with you every Sunday at noon on Independent Talk 1100 KFNX, joined today by my co-host Shelley Rosas, who works for the same firm as myself. If you want to reach out and schedule an appointment with us, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions, share your thoughts or anything of that nature, you can do so by calling 602-277-KFNX.

                                             Today we are talking about disclosure and discovery, kind of some nuts and bolts basics about a family law proceeding. Now we talked just a minute ago about just what disclosure is, basic requirements of that, and one thing I wanted to add on to that discussion, is just a brief comment about hearsay. Because part of what you're doing in the disclosure process is making sure you've got all the evidence out there so that there's no surprises, you don't run into [inaudible 00:31:53] problems about ... that you're going to be using in trial. There seems to be a ton of confusion from my perspective in people that are coming, lay people coming to the court about the issue of hearsay.

                                             Now, number one, I think most people don't even fully understand what hearsay is. We had in law school, there was a full class and a huge chunk of that class was dedicated to just understanding what's hearsay, what's admissible hearsay, just under the standard rules of evidence. It's super confusing, and then even after that class I didn't personally have a super great grip on it until I took a subsequent class, a trial practice where we're doing mock trials and you had a chance to really practice it. It's very complex.

Shelly Rosas:                     Well, there's like hearsay and then there's 34 exceptions to hearsay, right?

David E.:                             Yeah.

Shelly Rosas:                     It's like here is what hearsay, something happened to the party, but then there's 34 reasons where hearsay can come in and all the lay people say, "Oh, [inaudible 00:32:47] that is hearsay." It's like, "Well, I know where it fits under an exception and [inaudible 00:32:52] comes in."

David E.:                             Absolutely. Well, and that's kind of where I was going. I mean, number one on the front end, hearsay is super complex and I don't think it's as simple as most people think it is, just understanding what it is. Number two, in Arizona if ... What?

Shelly Rosas:                     Information offered for the truth of the matter asserted.

David E.:                             Yes, well, we're not going to get into the definitions of hearsay with all.

Shelly Rosas:                     I'm going to be in trouble for that after the show.

David E.:                             But the ... No, you're not in trouble for that. Now, who's assuming the negative stuff now?

Shelly Rosas:                     I know, but that's beginning [crosstalk 00:33:21] to tie around here. Hearsay is information you hear from another party that's offered into court to prove the truth of the matter asserted, but then it can also be offered to prove the truth ... it can be offered for that purpose if it falls under an exception, which we can always find an exception.

David E.:                             Well, not always, but there's a lot of exception.

Shelly Rosas:                     90% of the time.

David E.:                             The point is hearsay is pretty complex and I'm not going to try to school everybody right now on what, how hearsay works. What I wanted to convey is that in Arizona, in a family court proceeding Rule 2 of the Rules of Family Law Procedure basically says that you can have hearsay, that hearsay stuff can come in. Now some of the things that, in my mind often pop up is stuff like police reports, those are generally non-admissible hearsay in a vacuum, but that's stuff you can bring in.

                                             The family law rules have done this as I understand it in essence, because they had so many people coming in to the family court that were self-represented, without attorneys, that they had no idea what the rules were. It just became such a complete mess, that I think the courts in defining the family law procedural rules finally said, "You know what, let's just make hearsay come in as long as it's relevant and it's stuff that is going to help the case, so that we can just figure out what's going on, so that we can process these people through and get them out." Because it was just too confusing for all these lay people that were flooding the court system to understand what all the hearsay stuff was.

                                             The whole point I'm bringing up here is that if you are mapping out your court proceeding, understand that in Arizona, generally speaking, with one little exception that I'm not going to mess with, hearsay is usually admissible in family court proceedings. That's going to affect what you're disclosing and what witnesses you're going to disclose. It also helps shorten up cases because if you have for example some incident where the police had to be there, you can simply introduce a police report and say, "Here are some hearsay evidence that describes what happened," as opposed to calling in the officer, having to subpoena the officer, taking an extra hour or two of trial time to interview this officer on the stand, that sort of thing. That funnels into your disclosure system.

                                             All right, discovery, discovery is the other major component of this equation in my mind. Discovery, like I said before is essentially going out and finding information. It's you getting things that you don't have. There's a number of different discovery mechanisms and the scope of discovery is extraordinarily broad. You're basically just finding anything that's relevant. There's some defense mechanisms or things you can do if things aren't happening right with discovery, in which I'll get into in just a sec. What were you going to say?

Shelly Rosas:                     I was just going to say you can ... Discovery is open to any facts that might lead to other relevant facts to the proceeding. You cannot just be looking for directly relevant facts, but you can be looking for facts or information that would lead you to those facts or relevant facts.

David E.:                             Right, some of the mechanisms that we have in family court as discovery tools are, and I'll go in a little more detail in each of these, depositions, interrogatories, request for production of documents, request for admission, subpoenas, evaluations by third parties of a whole range of different things. Let me explain what each of these is.

                                             First off, depositions, depositions are ... this is one of the things that I think scares people a lot, when you have a deposition or it's something you see in some of the TV shows. It's where basically you have the other side, sometimes it's a third party, it's very often the other side in the case, and you bring them in, everybody's attorneys are there, and the attorney from ... You have a chance to, in essence interview the other person in front of the court reporter. The court reporter is sitting there, they're typing down everything that's asked, everything that's responded to, and they generate a transcript. When you go in they can be kind of lengthy, the rule actually allows you to go up to four hours to have a deposition, and they can go on for quite a while. The court reporter takes down everything that's being said, everything that's being asked, and they generate this transcript. The transcript later can be used, it's almost as if you are speaking in open court. You have to treat it very seriously because what you're saying becomes this record.

                                             A big part of the reason for having a deposition, there's a couple things. One is, it's a fishing expedition because it's super broad in scope and you can ask all sorts of things. If there's certain pieces of evidences you're just not really sure or you just want to find out more information about something, it's a great mechanism by which to just go in and gather information, because you can just ask all sorts of stuff in a deposition.  Another major reason for a deposition is to pin somebody down using this transcript, because once they say it now they can't suddenly back up and try to say something else or they'll look like-

Shelly Rosas:                     That's my favorite.

David E.:                             You're just a liar.

Shelly Rosas:                     That's actually my favorite way to use a deposition in family court is to ... because of the difficult opposing parties are the ones that are going to roll the dice and be like, "Day one, I'm one. Day two, I'm two. Day three, I'm three." You can't tell a different story every day of the week, I like to nail them down in a deposition and then I go from there to plan.

David E.:                             Absolutely.

Shelly Rosas:                     Plan my case.

David E.:                             That's one of the major mechanisms that I use it for, and I think many attorneys use it for, is to just lock someone in so you know exactly what's going to be said or [crosstalk 00:38:38] when you get to trial, especially for these people that are kind of shifting gears every couple of days like, "This is what happened ... Oh, this is what happened. No, that's not what I said before. I said something totally different." Depositions are great for that purpose, and you very often have situations where you have a deposition, and then you get to trial and then somebody says something different and then you say, "Oh really? Let me pull out this transcript and then let me read your words. When I asked you XYZ, you said ABC, didn't you?"

Shelly Rosas:                     Those are great days.

David E.:                             Then you just kind of stuck and now this person suddenly looks like a liar if they're changing stories, and if they aren't changing stories you know exactly what they're going to say.

Shelly Rosas:                     You don't have to use the word.

David E.:                             Now one of the problems with depositions is they're expensive, particularly for using an attorney. Now not only are you going to pay for the attorney's time [inaudible 00:39:23], and that can be up to four hours of time, which on an hourly basis can be super expensive, but you're also paying for the court reporter and you have to ... I mean, you don't have to, but you're also, you have the ability to come in and be there as well. It could be taking away from your ability to work or whatever. Depositions can be very costly, you can spend a few grand just to conduct a deposition if you're using an attorney, and then you got to pay for the cost of the actual transcript on top of the time for the court reporter. It can be expensive, but it can also be extremely valuable.

                                             I don't personally do a ton of depositions in my cases, I do them every once in a while, but there are other mechanisms you can often get some of the information you want from a deposition, but if you can do a deposition they're fantastic. There are certain situations where I think it's completely appropriate to do depositions for various reasons, which I won't necessarily go in all that, but they're expensive but they're awesome because you can ask all sorts of stuff. It's just so broad in scope and you have so much.

                                             Now another discovery mechanism you can utilize is what are called interrogatories, and interrogatories are basically just written questions. You can send to the other side a series of questions saying, "Hey, what's your name? Where do you live?" Here again, the range of what you can ask is generally pretty broad as long as it's relevant stuff. You can just craft your own questions. You're limited to these in family court and civil court as well.

Shelly Rosas:                     When you say limited to these, explain what that means.

David E.:                             Well, you have 40 of them that you can ask.

Shelly Rosas:                     40 total.

David E.:                             40 total.

Shelly Rosas:                     For your whole case [crosstalk 00:41:01].

David E.:                             Now the interesting thing about interrogatories is that you have what are called uniform interrogatories in Arizona, where they had these kind of predefined questions that you can ask, that the court has crafted that you can just say, "Answer these questions." They have a bunch of subparts to them that don't necessarily count for the 40 limit, but the moral of the story is you only have so many you can ask, but you can ask these written questions. Here again, it can be ... Now, this is a much cheaper way to get some information than it is to go to a deposition because you just typically ask them.

Shelly Rosas:                     Right, sometimes.

David E.:                             All right, we're going to take another quick break. I am Attorney David Enevoldsen, joined my co-host Shelley Rosas, when we return we will be talking more about discovery and disclosure in the family court proceedings. If you want to call and ask any questions you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.

Speaker 10:                       Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children, this can range everywhere from addressing the legalities and controversies of topics like gay marriage to [inaudible 00:42:10] the divorce system, to simply providing tips to those getting married or going through divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX, if you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys call 480-565-8680, that's 480-565-8680. 

David E.:                             Welcome back to Family Law Report, I am David Enevoldsen, attorney with Family Law Guys, an Arizona law firm here with you every Sunday at noon on Independent Talk 1100 KFNX, joined today by my co-host Shelley Rosas, who works for the same firm as myself. If you want to reach out and schedule an appointment with us, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. If you are listening and you want to call in and ask any questions or share your thoughts or anything of that nature, you can do so by calling 602-277-KFNX.

                                             We have been talking about discovery and disclosure in family law, what that means and what the mechanisms you can ... the tools you can use to get stuff or find information in the midst of a family court proceeding. Now right before the break we were talking about interrogatories and depositions, which are ... depositions are orally asked questions in front of a court reporter, interrogatories are written questions up. Another mechanism you have that you can use is called request for production of document, and that is just like it sounds, you're requesting the other side to produce documents to you or you're just saying, "Hey, give me these docs." There are, just like with the other stuff there's limits to this. You can ask for up to 10 specific items or 10 categories of items as the way the rules listed out, but this is a way to just get documents.

                                             If you have for example I have the ... I discussed earlier the tax returns, if the other party has a tax return and you don't have them, and they aren't otherwise disclosing them you can issue out a request for production of document and say, "Hey, give me these things," or if there's some other specific thing that you identify that goes beyond the scope of the basic disclosure rules. For example if you wanted bank statements that go back further than six months, as is required by the disclosure rules you could say, "Hey, give me the last couple of years of bank statements," because that's relevant for whatever. You don't even have to identify why it's relevant, you can just ask for it unless they're fighting, then you might have to disclose why it's relevant. Another mechanism you can use is ... What?

Shelly Rosas:                     That's funny. I'm just laughing, "Unless you're fighting." You don't have to discuss why they're relevant.

David E.:                             Well, in a vacuum you can just ask for these things and there's sort of defenses to them that I'll circle back to in a second.

Shelly Rosas:                     But those that have something to hide might want to make that into a fight.

David E.:                             Well, yeah, often or sometimes if somebody is being unnecessarily litigious and trying to run up your fees by saying, "Hey, I want 50 million documents."

Shelly Rosas:                     Oh, that never happens.

David E.:                             Yeah, it does.

Shelly Rosas:                     No, I'm just kidding.

David E.:                             I know you're being sarcastic. Another mechanism you can use to find information is what's called request for admissions, and that is ... it's an interesting device and it often lines up summary judgment motions, I think very often or just trying to set a particular fact in stone. Basically a request for admission is you say to the other side, "Hey, other side, I'm going to make a statement and you tell me whether it's true or not. You say whether you admit this statement or you deny the statement." It can be admit or deny you have some mental health issue or admit or deny that you were not at the parenting time exchange on four different occasions throughout this past year, or something like that. Whatever it is you just pin them down and so you have a conclusive fact one way or another that says yes or no.

                                             Now a lot of times people will merge the request for admission with the interrogatories, and this to me makes sense because you can often say something like, "Admit or deny the statement," and if you deny it your interrogatory is explained why you're denying it or what you think really happened or something like that. It's a way of melding things because otherwise the request for admission is just the admit or deny in a vacuum.

                                             Another mechanism you can use for going through this whole discovery process is subpoenas. Most of these things so far were focused on the other party, the interrogatory is the written questions, the request for admission, the ask for admit or deny a statement, the request for production of documents, those are all fixated on the other party. Now a deposition can be a third party, you can ask some other person that isn't a party to the case to submit to those. Subpoenas can also be very useful for third parties, now that's when you ... usually when you need to get a particular document or set of documents from some source other than the actual party. Sometimes you'll send subpoenas for employment records, for example if you need to employment records from the other party and they're not giving them to you for some reason or you otherwise need to get them out, for whatever reason you need to get them out of this third party. You can issue the subpoena, which is basically stamped off on by the court reporter saying, "Hey, other party you have to hand this stuff over or your violating the law."

Shelly Rosas:                     I like to send subpoenas ... I mean, not that I like to send subpoenas, but employers are always very, very cooperative and I think I have never sent a subpoena to an employer and not learned of additional income or benefits. Every single time. That's a very good use of subpoena.

David E.:                             Sometimes it's much easier to get the information out of the third party than it is out of the opposing party.

Shelly Rosas:                     Less expensive because there's no fighting.

David E.:                             Right.

Shelly Rosas:                     You gather your documents, you submit them, you serve them, you get the information back, you don't have to argue.

David E.:                             I've seen a lot of situations where you do that just because you're having so much difficulty, because under the basic disclosure requirements you're supposed to issue out a bunch of stuff. Now that doesn't mean everybody necessarily just does it, and a lot of times it requires a lot of prodding, a lot of effort to get this out of the other person, and sometimes it's just easier to send the subpoena somewhere and get this third party to hand you the stuff.

Shelly Rosas:                     Meaning each party, David means each party is supposed to voluntarily disclose all of these required items.

David E.:                             Which doesn't always happen.

Shelly Rosas:                     Most of the time each party does not have the complete set of items, and does not disclose a complete set of documents for every item on that list, either because they just don't have access to them or they're not in their custody or control or they don't want to.

David E.:                             Another major mechanism you can use as sort of a general discovery, this is kind of half discovery, half disclosure is evaluations by third parties, and that can be a range of things. For example, you could have mental health evaluations, you can sometimes motion the court and say, "Hey," if the other side doesn't agree to it, "Hey, court, this other person might be a little off for whatever reason or maybe a lot off, and if they're going to be caring for a child we need to make sure that they're fit, so I need a mental health evaluation of this other person so that we can verify that this person is indeed fit to be handling a child."

                                             There's other things that you can look at, things like vocational experts that will come in and look at, for example if somebody can be employed in a way that they're not, if they're underemployed, if they're just choosing not to work when they could be working, that can be super relevant for things like alimony A.K.A. spousal maintenance. A lot of these, when I throw that just because Arizona calls it spousal maintenance, but not everybody knows that term, it's alimony, it's what we traditionally call it. There's lots of evaluations you can go out and get from third parties.

                                             Now, of course this all begs the question what is somebody just decides not to comply with ... We have all these rules, and very often people will just choose not to comply with them or alternatively sometimes you can get somebody that's just overreaching. They're getting something that's just completely disconnected from anything or that they're somehow using the discovery/disclosure process and abusing it so that they can just harass the other party or run out their attorney's fees or something like that. I've seen lots of instances like that. I've seen ... That's just one popped into mind. I've seen a couple of different cases where I've had where people will disclose sex tapes in the midst of a proceeding, which really doesn't have anything to do with anything, except they're just trying to make the other party look bad.

Shelly Rosas:                     I had an entirely large cardboard box full of like porn and sex tapes delivered to my office to give to the opposing party just because they didn't want to deliver them themselves. I was thrilled to have to deliver that.

David E.:                             Clearly that's not relevant to anything.

Shelly Rosas:                     Not at all. I was like, "Why is this here?"

David E.:                             It's a mechanism by which to harass the other party through the disclosure process, and then they're going to ... the other party is going to say, "Well, I'm supposed to, I had to disclose everything that I was supposed to hand you." That's just one example, there's lots of ways in which people ... sometimes people will throw tons of discovery requests out just because they think it's going to run up attorney's fees. There's a lot of ways to abuse this.

                                             There are things you can do defensively. One is you can go through and get a protective order, not to be confused with an order of protection, which is a little bit different, but a protective order is basically you run to the court and you say, "Hey, this other party is trying to seek X, Y, Z discovery, save me from that discovery request. They shouldn't be able to get that for whatever reason. It's not relevant or it's overreaching or it's overly voluminous or they've exceeded their discovery request or whatever it is."

                                             Another major thing you can do is what's called a motion to compel, if they are not playing ball you can essentially file a motion with the court and say, "Hey court, I ask for this stuff and they have not given it to me, and so court make them give me this stuff that they are not giving me." That can often result in attorney's fees if you're dealing with attorneys, but very often what you do is you go back to the court and you say, "They're not playing ball." You get a ruling back from the court saying, "Hey, other side you need to hand this stuff over." Often it comes with a judgment for attorney's fees, sometimes it abides trial, but that is if it's pushed off to trial, but that is a mechanism by which you can get the other person to hand over stuff that they aren't otherwise handing. If you fail to do that, the courts will do various things, sometimes there's the attorney's fees judgment.

                                             Sometimes I've seen situations where if you haven't handed things over you create this presumption in trial as a fact that you ... whatever it is that the presumption could have implied, like for example if you were ... have an employment situation and you're saying, "Oh, they're not handing me over their employment records," and then this is one possible example. The court has some discretion on how they're going to do this, "They're not handing over their employment records so I'm going to create a presumption that they are making what I'm claiming they are making." That's one possible example.

                                             There's impacts to not complying with these discovery requests, in addition to the attorney's fees, sometimes it can create fact problems. If you don't answer a request for admission on the same lines, that's the one where you're asking admit or deny the statement, generally speaking it's presumed to be admitted under the rules, if you don't answer those things. There are potential sanctions and there can be additional sanctions on top of that the rules will allow for other monetary penalties. In theory, you could be held in contempt of court for doing all that, so a lot of potential problems with not complying with the rules, but there's also a lot of different mechanisms you can use to run around and find information that you need to line yourself up for trial.

               All right, that is about all the time we have for today's show. You have been listening to Family Law Report, I'm your host David Enevoldsen an attorney with Family Law Guys, an Arizona law firm, and I've had with me my co-host Shelley Rosas. We have been talking about discovery and disclosure in family law. Hope you join us again next week on Sunday at noon for more of the latest on family law here on Independent Talk 1100 KFNX. Thank you all for listening.

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