By: Amber Godfrey
Ms. Godfrey has been practicing law for 13 years. Prior to joining WhitbeckBennett, she founded her own private practice in 2016 in Oklahoma City. She focuses on family law, which includes divorce, child support, custody modifications, Guardian ad Litem, adoption, and guardianships, as well as estate law which includes estate planning, probate. To learn more about Amber Godfrey, click here.
What is Discovery?
Discovery: admittedly, one of the most confusing, singular words in all of legal jargon—an enigma that strikes fear in the hearts of many a litigant. It gets thrown around easily by lawyers and the court, yet parties are left with this amorphous, ethereal notion of what “discovery” means, and it becomes a scary, insurmountable obstacle. Let’s break it down and make it a lot less nuanced.
In Oklahoma, discovery can generally be broken down into five categories:
- Requests for Production;
- Requests for Admission;
- Subpoenas Duces Tecum; and
These are written answers to questions or requests for written information. This can be anything from, “List all adults living in your household,” to “Do you believe the children have a preference as to custody in this matter?” These answers do not require documents to be produced; simply that written answers are provided to the questions posed. These are limited to thirty in number, including subparts (with some exceptions).
Requests for Production
A Request for Production requires the party to provide documentation—physical evidence that backs up information at issue in the case. For example, parties may be asked to produce copies of credit card statements, bank statements, vehicle titles, budgets, pictures and videos, calendars, audio recordings, and other tangible items.
Keep in mind, though, that parties are not required to produce that which does not already exist (such as creating a spreadsheet simply because it is requested) or to produce items that are already in the other party’s possession, custody, or control (such as bank statements for a joint account). There are no limits to the number of production requests that may be made.
Requests for Admission
These require a party to admit to information asked of them and cannot be couched within compound questions. For example, “Admit that you own a 2015 Ford F-150,” “Admit that your 2015 Ford F-150 has no debt on it,” “Admit that your 2015 Ford F-150 was purchased during the marriage,” and so on are all appropriate questions. You cannot ask all of these in one question—e.g., “Admit that you own a 2015 Ford F-150 that you purchased during marriage, and which has no debt on it.” This is objectionable as a “compound question.” It is important to limit it to one fact per question, as the problem with asking it in a compound manner can lead the responder to denying one fact and not the others, but the reader cannot tell what is being denied.
For instance, if the truck still has debt on it, then an honest answer to the compound question posed above is “Denied.” However, not all of it is incorrect; compounding the facts, though, makes it indistinguishable as to what is or is not truthful. Another awful—but effective—example is, “Do you still beat your wife?” If a party answers, “No,” it implies that they used to, but does not anymore; if they answer, “Yes,” not only does that admit to current, ongoing abuse, but past abuse as well. There is no “safe way” to answer that question since there are assumptions being made and more than one fact being asked in one question.
If a party receives compound admission requests, they can still answer the question with the objection, then, without waiving the objection, answer it as truthfully as possible (e.g., “Objection; compound question. Without waiving said objection, Petitioner admits that he owns a 2015 Ford F-150 and that it was purchased during the marriage, but he denies that there is no debt on it.”). There is also a limit of thirty admission requests that can be asked of a party.
Subpoenas Duces Tecum
(Boy, we like our Latin, don’t we?) Translated, this just means a subpoena for a document or other tangible thing. In theory and practice, these are no different from a Request for Production. However, these can be issued to non-parties just as easily as parties and can be enforced with a bench warrant if the responder fails to answer timely. Toward that end, the three discovery methods noted above (absent some exceptions) carry with them a thirty-day response date, but subpoenas duces tecum can be shortened to much less time on non-party responders.
These are in-person discovery questions, asked directly to parties (or interested non-parties), on the record with a Court Reporter, and only the parties and counsel are permitted to attend, absent permission granted by all parties to non-parties being present (such as new spouses). Objections by the deponent’s attorney are very limited, and, even after objecting, the party is still required to answer the question. This is because the deponent’s answer that would have been given in the moment may “change” by the time they get to court, as they would have had time to “reflect” (read: talk with counsel) in the time between the question being asked and it being answered. If the question is posed to the court and the objection sustained, the answer never comes into the record as far as the court is concerned.
If the objection is overruled, then the answer is already available and can be used in the trial on the merits.
Depositions can be costly, as you are paying for the attorney’s time, the Court Reporter’s time, and the transcript, but it can be a quicker method to obtain information (simply give three days’ notice of the deposition date), and it can be especially effective when you are dealing with a party who “sterilizes” everything through their attorney normally and cannot answer honestly for themselves. It also gives a good glimpse into how the party will conduct themselves on the stand—which may or may not bode well in their favor come trial time.
“Discovery” itself need not be such a mysterious and ineffable concept, and, if properly advised by your attorney, guided both in strategy and timeliness, it can be a smooth process. There are some strict deadlines concerning discovery that need to be met, or it may have disastrous consequences to your case. If you find yourself dealing with a discovery dispute and do not know how to proceed, please call WhitbeckBennett to plan a consultation and strategy session to address your concerns head-on.