A discovery deficiency memo is the spine to each movement to compel discovery in divorce and extra. This video is inside coaching for our household legislation attorneys and paralegals drafting a concise and helpful memo to accompany the response to a evaluation of an opposing celebration’s solutions to interrogatories and responses to requests for manufacturing of paperwork. There’s an instance of a discovery deficiency memo within the Forensic Accounting Deskbook (see under).
Be taught extra about Mason’s Forensic Accounting Deskbook printed by the ABA Household Regulation Part right here: https://www.americanbar.org/products/…
The next is an excerpt from The Forensic Accounting Deskbook: A Practical Guide to Financial Investigation and Analysis for Family Lawyers, Second Edition. Reprinted by permission. Copyright © 2018 American Bar Affiliation and Miles Mason Household Regulation Group, PLC. All rights reserved. No a part of this publication could also be reproduced, saved in a retrieval system, or transmitted in any type or by any means, digital, mechanical, photocopying, recording, or in any other case, with out the prior written permission of the writer. Footnotes could also be omitted from the unique textual content.
From Chapter 5:
Manufacturing Memos, Deficiency Memos, Hole Charts, and Bates-Stamping
Receiving discovery is essential. In the midst of the examination of a witness in court docket, proving what discovery paperwork had been or weren’t exchanged will be simply as essential. For instance, at trial, one lawyer is cross-examining a celebration on the witness stand. Looking for to question the witness with a doc, the questioning lawyer arms the doc to the opposite lawyer simply previous to submitting it to the witness. However the different lawyer objects to using the doc on the grounds that it had not been produced in discovery. The questioning lawyer states the doc was produced. What’s the decide to do? The decide won’t wish to spend time elongating a divorce trial over a dispute between two attorneys claiming a doc was or was not produced in discovery. There might have been hundreds of pages of paperwork exchanged. Judges don’t wish to determine credibility between two attorneys. Nonetheless, assuming the doc is critical, the problem is essential. At that second, the argument over manufacturing or nonproduction issues an excellent deal. Being proper and successful the argument could also be two various things.
Until there’s documentation itemizing particular paperwork produced and corresponding numbers of pages, there is no such thing as a method to successfully argue manufacturing disputes within the courtroom. Industrial-sized discovery instances normally require that attorneys decide if the paperwork ought to be Bates-stamped. Whether or not to Bates-stamp discovery in a household legislation matter is a query of judgment—weighing price relative to profit. Bodily stamping paperwork isn’t the onerous half. You’ll find copiers or copy providers to stamp paperwork with reference letters and numbers.
Indexing the paperwork web page by web page and doc by doc, nonetheless, will be tedious past description. Bates-stamping paperwork in a household legislation matter is all the time tough due to the best way shoppers understand preparation. Should you Bates-stamp from the start of the case and the case settles, the fee is sunk and seems wasted. Should you wait till the settlement negotiations fail to start the Bates-stamping course of, the duty itself may very well be overwhelming as different time dedication pressures mount. However, should you full the Bates-stamping undertaking, the case is tried, and no discovery manufacturing dispute happens at trial, the shopper should declare the Bates-stamping was overkill as a result of there was no dispute. Clearly, stopping the dispute was the outcome. In any occasion, even when it’s patiently defined upfront, shoppers don’t all the time see the profit in attorneys being ready.
For a great dialogue of Bates-stamping, see the primary chapter of The Divorce Trial Guide.8 At trial, if the contested doc is Batesstamped, checking the index of paperwork cross-referenced by quantity ought to be comparatively easy. If the case’s finances doesn’t name for a Bates-stamping protocol, take into account creating your personal discovery manufacturing memorandum process. Discovery manufacturing memoranda generally is a less-expensive organizational instrument used to memorialize paperwork produced and paperwork acquired in discovery. As soon as discovery is exchanged, the legal professional getting ready the memorandum can share it with opposing counsel. The enclosure letter must also request opposing counsel evaluation the record to find out whether or not the memorandum is correct and full. Upon evaluation, if there are any inaccuracies, the reviewing lawyer ought to notify in writing the lawyer who ready the memorandum. Within the absence of a dispute, the manufacturing counsel can declare to have ready an correct memorandum the court docket can depend upon.
Discovery deficiency memoranda record paperwork that haven’t been produced however ought to have been. These will be very useful together with motions to compel. It’s typically a good suggestion to ship opposing counsel the memorandum, within the type of a letter, to present her a possibility to right the deficiencies earlier than you might be compelled to file your movement to compel. The invention deficiency memorandum can then merely be connected as an exhibit to the movement to compel. You must also replace the memorandum because the case progresses. Instance 5-9 is a portion of a discovery deficiency memorandum.
CONFIDENTIAL INTERNAL MEMORANDUM
Date: November 11, 2018
Topic: Picard v. Picard – Discovery Deficiencies Memo
Deficiencies with Respect to Solutions to Interrogatories
Interrogatory No. 9. For this request for a listing of all marital property, together with kind of property, foundation for declare that it’s marital, price of acquisition, and current worth, Spouse failed to offer an itemized record of furnishings, furnishings, artwork, and home equipment within the marital residence and the current worth of every merchandise. Husband now not resides within the marital residence and due to this fact is unable to compile this record.
Interrogatory No. 10. For this request for data concerning enterprise pursuits, together with nature of curiosity, share of curiosity, and estimated worth of curiosity, Spouse failed to offer her estimated worth of her medical apply and the proportion of her curiosity.
Deficiencies with Respect to Requests for Manufacturing of Paperwork
Doc Request No. 2. For this request for paperwork reflecting the revenue, bills, property, or liabilities for any enterprise curiosity, Spouse failed to provide partnership revenue tax returns, steadiness sheets, revenue and loss statements, revenue statements, or different paperwork reflecting the revenue, bills, property, or liabilities of her medical apply.
Doc Request No. 6. For this request for common ledgers, payroll ledgers, and depreciation schedules for any enterprise curiosity, Spouse failed to provide any paperwork aware of this request for her medical apply.
Doc Request No. 8. For this request for proof of possession or management of a enterprise curiosity, Spouse failed to provide the partnership settlement for her medical apply.
Finish of excerpt.