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by Samuel K. Darling, Bellevue Divorce Lawyer

This article explains how you can force people to give you information in your divorce or family law case. This subject is called “discovery”, and there are many “discovery devices” available in Washington. You can use these discovery devices over and over, and you can choose whichever ones you think are most likely to help you get the information you’re after.

Even better, the primary discovery rule, CR 26, says you can ask for virtually any information reasonably calculated to lead to admissible evidence. That’s a liberal standard allowing you to request information even if you’re not sure whether it’ll be admissible or relevant. Moreover, most evidence objections aren’t basis to refuse to disclose the information. That makes discovery extremely useful to those who know how it works.

Table of Contents
I. Discovery Devices
1) Interrogatories & Requests for Production
2) Subpoenas
3) Depositions
4) Entry onto Land
5) Requests for Admission
6) Mental and Physical Evaluations
7) Depositions Upon Written Questions
II. Protective Orders – How to Protect Information
III. Discovery Disputes

I. Discovery Devices.

Discovery devices are the tools in your discovery toolbox. Each has different functionality. This section of the article reviews all discovery devices in order of priority. Use these discovery devices by sending the appropriate paperwork to the party(ies) and/or non-parties, but don’t file them with the court.

1. Interrogatories & Requests for Production. Technically interrogatories and requests for production are two discovery devices, but parties use them together. An interrogatory is a written question that the opposing party must answer in writing within 30 days. A request for production is a written request that the other side produce something, typically copies of documents. Parties usually combine them together in one large set of dozens of requests and send them to the other party(ies).

Because of their importance, we have a separate article specifically on the subject of interrogatories and requests for production. It includes example sets of requests and also explains how to answer or respond to them.

Issuing a set of requests of this type is all the discovery a party performs in a standard divorce or family law case. It’s a relatively cost-effective means of gathering quite a bit of information.

2. Subpoenas. In essence, a subpoena is an enforceable demand that a non-party (someone who isn’t a party to the case) do something. You might use a subpoena to force a non-party to show up and testify at trial or a deposition. Or you might issue a subpoena to the opposing party’s bank or employer, demanding records.

Given that our firm discusses trial and depositions elsewhere, this article subsection focuses only on using subpoenas to demand records from a non-party.

Records subpoenas are somewhat rare, because parties can usually get the same information or documents from an opposing party with a request for production (see previous section). That is, you could ask for the opposing party’s paystubs or bank statements directly from the opposing party in a standard set of interrogatories and requests for production, obviating the need to ask for the records from the employer or bank.

Subpoenaing records from non-parties typically only makes sense if:

  • You don’t trust the relevant party and want the documents straight from the horse’s mouth, so to speak;
  • You want to prove a party has been untruthful or incomplete in responding to a prior set of interrogatories and requests for production;
  • You don’t have time to get the documents from the party (unlike subpoenas, requests for production usually takes 30+ days and must be completed before any discovery cutoff date imposed by the county’s local rules); or
  • The opposing party doesn’t have access to the documents.

Usually you should subpoena records by scheduling a records deposition. You don’t NEED to do it this way – you can just subpoena the records without an accompanying deposition. But scheduling a records deposition provides several advantages. One, a request for records without an accompanying deposition requires five extra court days’ notice to the opposing party(ies) before you issue the subpoena to the non-party. Second, non-parties are far more likely to comply with a records request if you also schedule a deposition. This is because you offer to cancel the deposition if the non-party complies with the records request before the deposition date. Non-parties comply to avoid the deposition.

For this to work, you need to schedule the deposition for a location within the bounds of a Washington subpoena’s reach. Generally that means the deposition must occur in Washington and must not require the deponent to travel beyond the county where he or she lives, is employed, or transacts business. If the non-party you’re trying to subpoena doesn’t have a presence in Washington, you might need to enlist the aid of a legal professional in the non-party’s jurisdiction to help subpoena the documents.

Assuming the deponent is within geographic reach, prepare the following four documents: a letter to the non-party, a Deposition Notice, a Subpoena, and a Custodian Declaration. You can find our firm’s fill-in-the-blank templates by clicking the links in the prior sentence. Please insert your name and contact information in place of ours.

Finally, serve the documents on the non-party and have them delivered to the other party(ies) or their attorneys, if any. Click here for an article on serving documents and sending them to other parties. Serving a subpoena on a business is different unfortunately, and the rules are numerous and specific. Generally, if you’re serving a subpoena on a bank, have the process server go to a local branch and ask for whoever can accept service of legal documents. If you’re serving subpoena on a corporation or LLC (most types of businesses), have the process server deliver the documents to the registered agent. You can usually find the registered agent by searching the Washington Corporations records.

3. Depositions. Depositions involve asking a deponent (witness) live questions while a court reporter transcribes (types) what everyone says. Usually the parties show up in-person along with their attorneys and the court reporter in a large room, such as conference room. In high-dollar litigation, depositions are quite common. It’s a great discovery device for getting straight answers, because the questions, answers, and follow-up questions are live. There isn’t much time for the deponent to think of ways to answer evasively.

Nonetheless, depositions are uncommon in the average divorce and family law proceeding because of the expense. Even if you don’t hire an attorney, scheduling a deposition means finding a large room, hiring a court reporter, and paying the court reporter to produce a legal transcript. It’s even more expensive if you have an attorney.

The legalities of requesting a deposition are relatively simple. To depose a PARTY, just draft a Deposition Notice and have it delivered to the opposing party(ies) or their counsel at least a week or two in advance. To depose a NON-PARTY, draft a Subpoena along with the Deposition Notice, have an adult other than you serve them upon the deponent, and have copies delivered to all the other parties or their attorneys at least a week or two in advance. There is no exact amount of advance notice required. See above regarding serving a subpoena on a non-party.

If you’re deposing a PARTY, there aren’t restrictions on where the deposition takes place. If it’s unreasonably difficult to attend, the party-deponent can seek a protective order from the court (see below), and the court usually grants the winner of the protective order hearing an award of attorney fees. Rather than get into a winner-takes-all dispute over the deposition location, the parties (or their counsel, if any) typically talk informally and agree on a location if they’re long distances from each other. Alternatively, the parties could conduct the deposition by streaming video, allowing everyone to be in different locations.

If you’re deposing a NON-PARTY, you’re limited by the geographic restrictions of a subpoena. See above for more on that.

The party who scheduled the deposition gets to question the deponent first. Usually the questioner begins with instructing the deponent. Typical instructions include:

  • “Please answer the question even if someone objects. The exception is if someone objects on the basis of attorney-client privilege or a similar privilege, such as therapist-patient privilege.”
  • “Please answer questions orally rather than by shaking your head or nodding. That makes it easier on the transcriptionist.”
  • “Please answer yes or no by saying yes or no rather than uhuh or uh huh. That also makes things easier for the transcriptionist and people reading the transcript.”

The questioner can show the deponent documents and questions about them. It’s professional courtesy to bring sufficient copies of the documents so everyone in attendance can view them at the same time as the deponent. It’s also customary to state what number the exhibit is and ask the witness to identify or describe the document when he or she first receives it. The transcriptionist / court reporter can then easily attach the documents as numbered exhibits to the eventual transcript.

Once the first person’s questions are done, other parties can question the deponent. Then the party who scheduled the deposition can ask more questions to follow up upon any of the new questions or answers.

Upon concluding the deposition, the court reporter will ask the witness whether he or she would like to “waive signature”. If the deponent doesn’t waive his or her right to sign, he or she can review the completed transcript, usually 2-14 days later. The purpose of the deponent’s review is to make corrections. The original version and the corrected version are then included in the final copy of the transcript.

Each of the parties will also have a chance to order the transcript. Ordering the transcript costs money, and the exact amount generally depends on the deposition’s length. You can make the decision to order the transcript at the deposition. Or you can take the court reporter’s contact information and order the transcript later.

A. Tips for Deposing Someone. Start with easy questions or small talk to loosen-up the deponent. Loosing-up the witness is advantageous to you. The more the deponent says and the less defensive the answers, the more useful the resulting transcript.

Once you’ve developed a rapport, move into more meaningful questions. Save difficult or contentious questions for last.

B. Tips for Defending Against a Deposition. If you’re defending against a deposition, object to any questions calling for privileged answers (e.g., information attorney-client privilege protects), unclear (ambiguous) questions, and questions too broad to fully answer. Attorneys often use the generic objection “Objection as to form of the question” as a means of saying the question is unclear or too broad. Most objections don’t stop the answer, but they preserve the objection for trial. In many situations failure to assert the objection waives it.

If the witness seems to be getting tired or flustered, consider asking everyone to take a short break. You can’t take a break or speak with the witness until the pending question and answer are done, so politely wait for the right time to make the request.

C. Tips if You’re Being Deposed.

  • Pause and Speak Slowly. This gives time for an objection. It also gives time to think about the question and formulate a good answer before speaking.
  • Don’t Give More Information than the Question Calls For. The party who scheduled the deposition probably wants to use the information against you or your side. Remember, you can’t take back information you’ve disclosed in the deposition. But you can always give more information after the deposition it its helpful to your cause.
  • Say if You’re Confused or Don’t Know.
  • Tell the Truth.

4. Entry onto Land. The fourth discovery device, entry onto land, is a request for production, oddly enough. See our article on interrogatories and requests for production for the applicable rules and procedures. You might request entry onto land if your appraiser needs to view the other side’s home. Usually the parties informally cooperate in scheduling an inspection, but sometimes an official request for production becomes necessary.

5. Requests for Admission. Requests for admission are somewhat similar to interrogatories. They’re a written set of statements the responding party must admit or deny within 30 days. Failure to respond by the 30-day deadline acts as an admission, potentially making this device a powerful tool. In practice they only have much effect if the responding party sleeps at the wheel or truly doesn’t contest the statements.

To prevent against accidental admissions, a party can’t combine this device with any other form of discovery request. In other words, you can’t insert a request for admission into a set of interrogatories and request for production. Click here for an example set of requests for admission.

If a party admits a statement or fails to deny the statement on time, the admission is “conclusive” “unless the court on motion permits withdrawal or amendment of the admission”. This means an admission isn’t truly conclusive, but a party needs to get special court permission to change a response.

6. Mental and Physical Evaluations. Court Rule 35 allows a party to force another party to submit to a mental or physical evaluation. This is somewhat rare, and it requires filing a motion for a court order. For example, you might ask the court to order your spouse to submit to an independent medical examination (IME) doctor for a determination of whether the spouse is telling the truth about being unable to work.

This discovery device is rare in divorce and family law cases because of the cost. In addition to obtaining the court order, you’d need to hire a medical or mental health expert to perform the evaluation, produce a report, and potentially testify. It can cost several thousand dollars in expert fees even if the doctor or mental health practitioner doesn’t end up testifying. If he or she does testify on a complex subject, it can easily cost more than $10,000 dollars.

A full explanation of the process of filing a motion of this type would exceed the scope of this article. Generally it would involve submitting a calendar note (Notice of Hearing), Motion for CR 35 Exam, declaration, and proposed order. Click the links in the preceding sentence for editable Word examples and a blank order template for a motion filed in Snohomish County. Click here for an article on filing a motion.

7. Depositions Upon Written Questions. The final discovery device is called a Deposition Upon Written Questions. As its name suggests, it involves sending written questions to the deponent, and a court reporter transcribing the answers. Typically interrogatories (written questions to a party) or an oral deposition (asking someone questions live with a transcriptionist) are better options. That makes written depositions almost unheard of.

II. Protective Orders – How to Protect Information.

As mentioned, parties usually need to respond to discovery despite any objections. An objection is more or less a placeholder for trial, and the responding party needs to disclose the information or otherwise cooperate with the discovery process in the meantime.

If a party hopes to stop the release of information, he or she typically has two options. One is to object on the basis of attorney-client privilege or a similar privilege. The second is to file a motion for a protective order under CR 26(c). Motions of this type are exceedingly rare in divorce and family law cases and beyond the scope of this relatively simple how-to article.

III. Discovery Disputes.

Courts don’t want to become involved in discovery disputes. As a result, parties are required to jump through a number of hoops before the court punishes anyone for a discovery violation. The following are the steps you’ll need to take before the court will make a final decision on a discovery-related issue.

1. Discovery Conference. Before filing any sort of discovery-related motion with the court, the moving party must at least attempt to conduct a discovery conference. The point of the conference is to discuss the discovery dispute and possible agreed resolutions.

Often the discovery conference is called a “CR 26(i) conference”. Usually a party schedules a CR 26(i) phone conference by sending the other side a brief letter or email about 3-7 court days in advance. Here’s a copy of what our firm typically sends the other side to schedule a conference with someone who hasn’t answered or properly answered interrogatories and requests for production.

Call the other side at the time you’ve appointed. If he or she doesn’t answer, you can skip to the next step and file a motion to compel. If he or she picks up the phone, you should try reaching an agreed resolution. For failure to answer or properly answer interrogatories and requests for production, the court probably expects you to give the other side at least a two-week extension from the date of the conference.

After the discovery conference, send the other party a brief email stating the outcome. If our firm scheduled the conference, the email usually looks akin to the following:

“I write this email to confirm the outcome of our CR 26(i) conference from a moment ago. You indicated you need more time to respond to our interrogatories and requests for production because you’ve been busy. You asked that we extend the deadline until three weeks from today. I offered you two weeks from today, until June 15, 2020, as you have already had the discovery requests for five weeks. If we do not receive your answers/responses by close of business on June 15th, we will probably file a motion to compel. Hopefully that won’t be necessary.”

If the other side fails to meet your deadline, move to the next step and file a motion to compel. If he or she provides improved answers/responses to your discovery request, but they are clearly deficient, you MIGHT be able to move onto the next step. If he or she provided improved answers/responses, and they’re arguably deficient, you probably need to start the dispute resolution process over again and schedule a CR 26(i) conference.

You’re probably wondering, “What happens if the other side just keeps making arguably changes to his or her answers/responses, but they’re always at least arguably deficient?” In our firm’s experience, you can move onto the next step – a motion to compel – if you’ve been through nearly the same process once or twice.

2. Motion to Compel. Filing a motion requires a motion and declaration. Click here for an example motion to compel and declaration combined into one document. You’ll also need a calendar note (sometimes called a Hearing Notice) and perhaps a proposed order. Local rules and norms dictate the contents of the calendar note, whether you need a proposed order, and how you submit the proposed order. You can sometimes learn the answers to these questions by reading the county’s local rules. Instead you might need to briefly speak with a local attorney, LLLT, or family law facilitator. Facilitators are the least expensive option at $10 per session but can only offer basic information.

Click here for an article on filing a motion. The process of filing, serving, and arguing a motion for to compel is the same as in the article, only you’ll use the documents listed in the preceding paragraph.

Hopefully this will result in the court issuing an order that provides a specific and enforceable deadline for curing the other side’s deficient discovery response(s).

If the other side provides responses before the deadline but they’re still ARGUABLY deficient, you probably need to return to the dispute resolution process at step III(1), above. Resolving discovery disputes can become incredibly time consuming and drawn-out as result.

3. Motion / Hearing for Sanctions. If the opposing party failed to provide responses by the deadline or the responses are CLEARLY deficient, you should confirm and attend the return hearing for sanctions. As stated in CR 37(b), the court can impose stiff penalties for failing to comply with an order to compel. One such penalty is to prohibit the offending party from offering any evidence or argument on all related topics at trial. Another common penalty is to strike the offending party’s response to the petition, allowing you to default him or her. Defaulting the other party usually means you win.

That’s it! We hope this was helpful. Our firm believes in making quality legal information available for free on the internet. For more free articles, guides, and videos, visit our website and click the resources tab in the upper right corner.

Or call us at 866-631-0028 to speak with a Genesis divorce lawyer in Bellevue or Everett, Washington.

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